Crown Cork & Seal Co. v. McNasby Respondents' Brief in Opposition to Petition for a Writ of Certiorari to the US Court of Appeals for the Third Circuit

    No. 89-1264

In  T he

j§>ujiratu> (fmtrl o f thr Ittitrft §tatra
October T erm, 1989

C rown Cork & Seal Co., Inc.,
Petitioner,

v.
Elizabeth M cN asby, C atherine Beres, 
H enrietta Elliott, M argaret Felmey,

A nn J acyszyn, V irginia K nowles,
Lorraine M ason, Edith M cG rody,

Betty (Ponath) M oyer, J oan M urphy,
Eleanor N eyer, M arie Pekala and  

D oris Y ocum, on behalf o f  them selves 
and  all others similarly situated,

_____ ________________________  Respondents.
R E S P O N D E N T S ’ B R IE F  

IN O P P O S IT IO N  T O  PE T IT IO N  
FO R  A  W R IT  O F  C E R T IO R A R I  

TO THE UNITED STA TES COURT O F A PPEA L S  
FO R  T H E  T H IR D  CIRCUIT

A lan M. Lerner 
(Counsel o f Record) 

Jeffrey Ivan Pasek 
Stephen V. Y arnell 
J ohn F. L icari 
Cohen, Shapiro, Polisher, 

Shiekman and Cohen 
22nd Floor, PSFS Building 
12 South 12th Street 
Philadelphia, PA 19107 
(215) 922-1300 

and
Seth F. Kreimer 
3400 Chestnut Street 
Philadelphia, PA 19107 
(215) 898-7447 

Counsel for Respondents



i

COUNTER STATEMENT OF THE QUESTIONS 
PRESENTED FOR REVIEW

1. SHOULD THE COURT REVIEW A DETERMINA­
TION OF PENNSYLVANIA LAW MADE BY THE 
COURT OF APPEALS FOR THE THIRD CIRCUIT, 
WITHOUT DISSENT, WHERE THE COURT OF AP­
PEALS’ DECISION IS CONSISTENT WITH PRIOR 
DECISIONS OF PENNSYLVANIA APPELLATE 
COURTS AND THERE ARE NO MORE RECENT 
CONTRARY DECISIONS BY THOSE COURTS?

2. SHOULD THIS COURT CONSIDER WHETHER 
THE FULL FAITH AND CREDIT ACT, 28 U.S.C. 
§1738, OR TITLE VII OF THE CIVIL RIGHTS ACT 
OF 1964, REQUIRE OR PERMIT THE APPLICA­
TION OF CLAIM PRECLUSION BASED UPON PRI­
OR PROCEEDINGS UNDER THE PENNSYLVANIA 
HUMAN RELATIONS ACT EVEN WHERE PENN­
SYLVANIA COURTS WOULD NOT APPLY CLAIM 
PRECLUSION?

3. SHOULD THIS COURT CONSIDER WHETHER 
THE EXCLUSIVITY PROVISION OF THE PENN­
SYLVANIA HUMAN RELATIONS ACT DENIED 
PETITIONER EQUAL PROTECTION OF THE 
LAWS BECAUSE IT APPLIES CLAIM PRECLUSION 
TO SUBSEQUENT ACTIONS ARISING UNDER 
STATE LAW, BUT DOES NOT APPLY CLAIM PRE­
CLUSION TO SUBSEQUENT ACTIONS ARISING 
UNDER FEDERAL LAW?



11

Page

Counter Statement of the Q uestions P resented for 
R eview ....................     i

T able of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  ii
T able of A uthorities . . . . . . . . . . . . . . ___. . . . . . . . . . .  v
Counter Statement of the Case .......... ......................  1
R easons for D enying the W r i t ............... 3
A rg u m en t ...........................     3

I. REVIEW OF THE DECISION OF THE 
COURT OF APPEALS FOR THE THIRD 
CIRCUIT INTERPRETING PENNSYL­
VANIA LAW IS NOT WARRANTED 
UNDER ANY PRINCIPLE PREVIOUSLY 
ENUNCIATED BY THIS C O U R T.......... 3

A. Introduction...................................................  3
B. This Court should not review the decision be­

low because it rested on the sound applica­
tion of Pennsylvania law derived from a rea­
sonable reading of existing state appellate 
court decisions ...............................  4

C. The court of appeals’ interpretation of section 
962(b) of the Pennsylvania Human Relations
Act was correct.......... ...................................  5

1. Section 962(b) does not purport to pre­
clude, or otherwise relate to, actions aris­
ing under federal law ...............................  5

TABLE OF CONTENTS



Ill

TABLE OF CONTENTS (Continued)

Page
2. Pennsylvania may, and does, interpret its

Human Relations Act differently from the 
interpretation applied by other states to 
similar language in their civil rights stat­
utes ............................... .......................... . 9

3. Pennsylvania’s common law of preclusion
would not apply claim preclusion to pre­
vent litigation of a Title VII claim because 
no adjudicatory body in Pennsylvania in 
which the Respondent litigated her claims 
under the PHRA ever had jurisdiction 
over her Title VII claim..................... . 10

II. THIS CASE IS SINGULARLY INAPPROPRI­
ATE AS A VEHICLE TO ADVANCE THE
NOVEL THEORY THAT SECTION 1738 
AND TITLE VII REQUIRE BROADER PRE­
CLUSION THAN THAT PROVIDED BY THE 
LAW OF PENNSYLVANIA,. . . . . . . . . . . . . . . . .  12

A. The language and purpose of section 1738 re­
quire that the preclusive effect be the same as 
that applied by state law .............................. 12

B. Petitioner’s contention that an aberrant pre­
clusion rule be imposed upon Title VII cases 
contradicts an unbroken line of cases, includ­
ing those of this Court, applying the Full 
Faith and Credit Statute, 28 U.S.C. §1738, as 
well as this Court’s decision in Kremer v. 
Chemical Construction Corp. ....... .......... . 15



IV

TABLE OF CONTENTS (Continued)

Page
III. THE COURT OF APPEALS’ DECISION IN­

TERPRETING SECTION 962(b) DOES NOT 
VIOLATE THE EQUAL PROTECTION 
CLAUSE OF THE FOURTEENTH AMEND­
M E N T ......................................................... . 18

IV. CONCLUSION................. ................................  20



V

Cases: Page
Albemarle Paper Co. v. Moody, 422 U.S, 405

(1975) ......       6
Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974).............     13,15,17
Allen v. McCurry, 449 U.S. 90 (1980) . . . . . . . . . . .  16,18
Anderson v. Upper Bucks County Area Vocational 

School, 30 Pa. Commw. 103, 373 A.2d 126 
(1977)...............       7

Bishop v. Wood, 426 U.S. 341 (1976)...................  3,5
BM Y v. Commonwealth o f Pennsylvania Unem­

ployment Compensation Board o f Review, 94 
Pa. Commw. 579, 504 A.2d 946 (1986)..... 11

Bradshaw v. General Motors Corp., 805 F.2d 110
(3d Cir. 1986).......  ...............................  12

Buck v. Bell, 274 U.S. 200 (1927) . . . . . . . . . . . . . . .  18
City o f Philadelphia v. Stradford Arms, Inc., 1 Pa.

Commw. 190, 274 A.2d 277 (1971) . . . . . . . .  11
Clay v. Advanced Computer Applications, Inc.,___

Pa____ , 559 A.2d 917 (1989). ................... 8
Davis v. U.S. Steel Supply, 688 F.2d 166 (3d Cir.

1982) (en banc), cert, denied, 460 U.S. 1014 
(1983)........................................ 5

Eichman v. Fotomat Corp., 759 F.2d 1434 (9th Cir.
1 9 8 5 )..............................................  10

General Electric Corp. v. Gilbert, 429 U.S. 125
(1976) . . .............    7

Gregory v. Chehi, 843 F.2d 111 (3d Cir. 1988)... 5

TABLE OF AUTHORITIES



TABLE OF AUTHORITIES (Continued)

Cases: Page
Haring v. Prosise, 462 U.S. 306 (1983).......... 16,18

Kadrmas v. Dickinson Public Schools,___ U.S.
___ , 101 L.Ed.2d 399 (1988)........................  19

Kelley v. TYKRefractories, Inc., 860 F.2d 1188 (3d
Cir. 1988)....................................................... 5,1 1

Kremer v. Chemical Construction Corp., 456 U.S.
461 (1982)..................        passim

Kusnir v. Leach, 64 Pa. Commw. 65, 439 A.2d 223
(1982)........       8,11

Lukus v. Westinghouse Electric Corp., 276 Pa.
Super. 232, 419 A.2d 43 (1980)..................... passim

Marrese v. American Academy o f Orthopaedic Sur­
geons, 470 U.S. 373 (1985) ..................... . passim

McCarter v. Mitcham, 883 F.2d 196 (3d Cir. 1989) 5,10
McNasby v. Crown Cork & Seal Co., Inc., 656 F.

Supp. 206 (E.D. Pa. 1987).............. ..............  2
McNasby v. Crown Cork & Seal Co., Inc., 832 F.2d

47 (3d Cir. 1987), cert, denied,___ U.S_____ ,
99 L.Ed.2d 273 (1988)....................   2,14

McNasby v. Crown Cork & Seal Co., Inc., 888 F.2d
270 (3d Cir. 1989)......................  9,10

Migra v. Warren City School District Board o f Edu­
cation, 465 U.S. 75 (1984).............................  16,18

Murphy v. Commonwealth o f Pennsylvania Human 
Relations Commission, 506 Pa. 549, 486 
A.2d 388, appeal dismissed, 471 U.S. 1132 
(1985)............   ..6,7,15,19



Vll

TABLE OF AUTHORITIES (Continued)

Cases: page
Nanavati v. Burdette Tomlin Memorial Hospital,

857 F.2d 96 (3d Cir. 1988), cert, denied,___
U.S------- , 103 L.Ed.2d 834 (1989) .......... .. 5,10

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 
( 1 9 8 0 ) . . . . . . . . . . . . . . . . . . . . . ...........................

Ostroff v. Yaslyk, 204 Pa. Super. 66, 203 A.2d 347 
(1964), rev’d on other grounds, 419 Pa. 183,
213 A.2d 72 (1965).......................................  11

Parsons Steel, Inc. v. First Alabama Bank, 474 U.S.
518 (1986)....................................................... 16,18

Pennsylvania Department o f Aging v. Lindberg, 503
Pa. 423, 469 A.2d 1012 (1983)....................  11

Pennsylvania Human Relations Commission v. St.
Joe Mineral Corp., 476 Pa. 302, 382 A.2d 732 
(1978).......................... ... ................................  7

Placid v. Commonwealth o f Pennsylvania Unem­
ployment Compensation Board o f Review, 58 
Pa. Com m w. 250, 427 A.2d 748 (1981)........  8,11

Yellow Freight System, Inc. v. Donnelly, No. 89- 
431, 1989 Oct. Term (argued February 28, 
1990). . . . . .................... ....................................  12

Thomas v. Washington Gas Light Co., 488 U.S.
261 (1980) ..................................    7,14,16

University o f Tennessee v. Elliott, 478 U.S. 288
(1986)...........      14,17

Zahorian v. Russell Fitt Real Estate Agency, 62 
N J. 399, 301 A.2d 754 (1973) ..................... 10



vm

Cases: page
Zamantakis v. Pennsylvania Human Relations 

Commission, 10 Pa. Commw. 107, 301 A.2d 
612, afTd, 478 Pa. 454, 387 A.2d 70 (1978) 10

Statutes:

28 U.S.C. § 1 7 3 8 . . . . . . . . . . . . . . . . . . . . . ..........  passim
42 Pa. Cons. Stat. Ann. §721 . . . . . . . . . . . . . . .  11
42 Pa. Cons. Stat Ann. §722 ...............  6,11
42 Pa. Cons. Stat. Ann. §724 .............  6,11
42 Pa. Cons. Stat. Ann. §742 .........................    5

42 Pa. Cons. Stat. Ann. §761 . . . . . ___ . . . . . .  8,11
42 Pa. Cons. Stat. Ann. §762 .............  8
42 Pa. Cons. Stat. Ann. §763 ...  8
42 U.S.C. §2000e, et seq. . . . . . . . . . . . . . . . . . . .  20
43 Pa. Cons. Stat Ann. §951 . . . . . . . . . . . . . . .  3,19
43 Pa. Cons. Stat Ann. §956 . . . . . . . . . . . . . . .  7
43 Pa. Cons. Stat. Ann. §962(b).......   passim
New York Executive Law, Section 300 (Mc­

Kinney 1972) . . . . . . ......      9

O ther A uthorities:

Restatement (Second) of Judgments §26___   10
2 Almanac of the Judiciary, (Prentice Hall 

Law & Business 1989)

TABLE OF AUTHORITIES (Continued)

3,4



IX

TABLE OF AUTHORITIES (Continued)

Page

Congressional M aterial:

H.R.Rep. 914, 88th Cong,, 1st Sess., 1964 
Leg. Hist, at 2150 ............................................... 13

Law Review:

Shreve, Preclusion and Federal Choice o f Law,
64 Tex. L. Rev. 1209, 1255-56 (1986).. . .  17

Burbank, Interjurisdictional Preclusion, Full 
Faith and Credit and Federal Common Law,
A General Approach, 71 Cornell L. Rev. 733 
0 9 8 6 ) . . . . . . . . . . .......... 17,18



In T he

(Emtrl of %  Inttrfr States
October T erm, 1989

No. 89-1264

Crown Cork & Seal Co., Inc.,
Petitioner,

v.

Elizabeth M cN asby, Catherine Beres, 
H enrietta Elliott, M argaret Felmey,

A nn Jacyszyn, V irginia Knowles,
Lorraine M ason, Edith M cG rody,

Betty (Ponath) M oyer, Joan M urphy,
Eleanor N eyer, M arie Pekala and 

D oris Y ocum, on behalf o f themselves 
and  all others similarly situated,

Respondents.

R E S P O N D E N T S ’ BR IEF  
IN O P P O S IT IO N  T O  PETITIO N  
FO R  A  W R IT  O F  C ER T IO R A R I 

TO THE UNITED STATES COURT OF APPEALS 
FO R  TH E  T H IR D  CIRCUIT

COUNTER STATEMENT OF THE CASE
1. The suggestion at page 4 of the Petition that Mrs. 

McNasby had “private counsel” who participated in the 
proceedings before the Pennsylvania Human Relations

1



2

Commission (“PHRC”), is not correct. Under the Penn­
sylvania Human Relations Act (“PHRA”), as it existed 
before 1982 (see Act 1982-47 (approved December 9, 
1982), Laws of Pennsylvania, Session of 1982, at 1053, 
1054-55.) Mrs. McNasby could not have private counsel lit­
igate her claim before the PHRC. When, following the 
PHRC’s issuance of its Proposed Findings of Fact and Con­
clusions of Law in 1981, Mrs. McNasby obtained counsel, 
and requested reconsideration, the PHRC did not ever rule 
on that request, nor respond to counsel’s request for an op­
portunity to brief and argue certain issues. Moreover, the 
PHRC’s Supplementary decision did not even mention 
Mrs. McNasby’s counsel’s request for reconsideration, or 
any of the issues her counsel sought to raise. See McNasby 
v. Crown Cork & Seal Co., Inc., 656 F. Supp. 206, 208 
(E.D. Pa. 1987).

2. The district court first granted Mrs. McNasby’s mo­
tion for partial summary judgment and denied Petitioner’s 
motion for summary judgment. Id. Petitioner appealed to 
the Court of Appeals For The Third Circuit, which dis­
missed the appeal. McNasby v. Crown Cork & Seal Co., 
Inc., 832 F.2d 47 (3d Cir. 1987), cert, denied, Crown Cork
& Seal Co., Inc. v. McNasby,___ U .S .____ , 99 L Ed 2d
273 (1988).



3

REASONS FOR DENYING THE WRIT 
ARGUMENT

I. REVIEW OF THE DECISION OF I IIE COURT OF 
APPEALS OF THE THIRD CIRCUIT INTERPRET­
ING PENNSYLVANIA LAW IS NOT WARRANTED 
UNDER ANY PRINCIPLE PREVIOUSLY ENUNCI­
ATED BY THIS COURT.
A. Introduction

Petitioner’s efforts to persuade the court of appeals to 
apply a special rule of preclusion to the Pennsylvania 
Human Relations Act (43 Pa. Cons. Stat. Ann. §951, 
§962(b) [“PHRA”]) different from that applied to other 
causes of action by Pennsylvania courts, failed despite liber­
al marbling of its arguments in that court with personal at­
tacks on Respondent’s counsel. Now faced with the 
historical reluctance of this Court to review interpretations 
of local law by the courts of appeals, see Bishop v. Wood, 
426 U.S. 341, 345-47 (1976), Petitioner chooses to cast as­
persions on the court of appeals, accusing it of “evading” its 
duty (Petition at 9), “manufacturing]” and “creating] leg­
islative intention,” (Id. at 12, 14) and “distorting]” and 
“inventing] a jurisdictional competency exception to Penn­
sylvania claim preclusion law.” (Id. at 15). In truth, the 
court of appeals’ interpretation of Pennsylvania preclusion 
law is consistent with applicable statutory language, analo­
gous Pennsylvania common law decisions, the majority rule 
among the states, the Restatement (Second) of Judgments, 
logic and sound public policy.

The court of appeals’ opinion was authored by the 
Honorable Edward R. Becker. Judge Becker has been a 
Judge of the United States Court of Appeals for the Third 
Circuit since 1981, following eleven (11) years on the 
United States District Court for the Eastern District of 
Pennsylvania, and a career as a practicing attorney in Phila­
delphia. 2 Almanac of The Federal Judiciary, 3d Circuit 3 
(Prentice Hall Law & Business 1989). His colleagues on the



4

panel that heard the case and joined in his opinion were 
Judge Walter K. Stapleton' and Senior Judge Max Rosenn.1 2 
It is revealing that Petitioner sees fit to resort to an intem­
perate and unjustified attack on these judges, and by infer­
ence, on the other members of the court of appeals, who 
voted without public dissent to deny the Petition For Re­
hearing and Rehearing En Banc. 3As will be shown below, 
the court of appeals was correct.

B. This Court should not review the decision below 
because it rested on the sound application o f Penn­
sylvania law derived from a reasonable reading o f ex­
isting state appellate court decisions.

Preclusion under the Full Faith Credit Statute, 28 
U.S.C. §1738, upon which Petitioner relied in its motion for 
summary judgment, and in its briefs below, depends upon 
the scope of the preclusive effect that would be given to the 
judgment upon which preclusion is premised by the courts

1. Judge Stapleton was appointed to the United States Court of Ap­
peals for the Third Circuit in 1985, after serving fifteen (15) years on the 
United States District Court for the District of Delaware. 2 Almanac of the 
Federal Judiciary, 3d Circuit 6 (Prentice Hall Law & Business 1989)

2. Judge Rosenn has been a member of the United States Court of Ap­
peals for the Third Circuit since 1970. Previously, he was in private prac­
tice in Pennsylvania for more than thirty years and served as Chair of the 
Pennsylvania Human Relations Commission. Id. at 3d Circuit 12.

3. Among the active Judges of the United States Court of Appeals for 
the Third Circuit considering the motion were several judges with exten­
sive experience in applying Pennsylvania law even before being appointed 
to the court of appeals. E.g., Judge A. Leon Higginbotham, Jr. served on 
the United States District Court for the Eastern District of Pennsylvania 
from 1964 until 1967; Judge Carol Los Mansmann served on the United 
States District Court for the Western District of Pennsylvania from 1982 to 
1988; Judge Anthony J. Scirica served on the United States District Court 
for the Eastern District of Pennsylvania and the Court of Common Pleas of 
Montgomery County, Pennsylvania; and Judge William D. Hutchinson, 
served as Associate Justice, Pennsylvania Supreme Court from 1982 to 
1987. Id. at passim.



5

of the state rendering that decision. Marrese v. American 
Academy o f Orthopaedic Surgeons, 470 U.S. 373 (1985).

In reversing the district court’s opinion below, the court 
of appeals carefully analyzed the preclusion law of Penn­
sylvania, which it has been called upon to consider fre­
quently in recent years. E.g., McCarter v. Mitcham, 883 
F.2d 196, 199-201 (3dCir. 1989) (claim preclusion); Kelley 
v. TYKRefractories, Inc., 860 F.2d 1188, 1193-98 (3d Cir. 
1988) (issue preclusion); Gregory v. Chehi, 843 F.2d 111, 
117 (3d Cir. 1988) (claim preclusion); Davis v. U.S. Steel 
Supply, 688 F.2d 166, 170 (3d Cir. 1982) (en banc), cert, 
denied, 460 U.S. 1014 (1983) (claim preclusion). C.f, 
Nanavati v. Burdette Tomlin Memorial Hospital, 857 F.2d
96 (3d Cir. 1988), cert, denied,___ U.S_____ , 103 L.Ed.2d
834 (1989) (claim preclusion, applying New Jersey law).

Given the experience of the United States Court of Ap­
peals for the Third Circuit in analyzing the manner in which 
the state courts within its circuit apply their own preclusion 
law, and particularly the manner in which the Pennsylvania 
law would be decided, its decision in this case on that issue 
must be given great deference, and not re-examined unless 
it is entirely untenable. Bishop, 426 U.S. at 345-47.

C. The court o f appeals’ interpretation ofsection 962(b) o f 
the Pennsylvania Human Relations Act was correct.

1. Section 962(b) does not purport to preclude or other­
wise relate to actions arising under federal law.

In Lukus v. Westinghouse Electric Corp., 276 Pa. 
Super. 232, 419 A.2d 431 (1980), a nearly unanimous,4 
en banc, decision of the Pennsylvania superior court,5

4. The only judge who did not join in the majority opinion, Judge Van 
Der Voort, concurred in the result without filing a separate opinion.

5. The Pennsylvania superior court is an intermediate appellate court 
of general, state-wide jurisdiction. 42 Pa. Cons. Stat. Ann. §742. Because

(footnote continued on next page)



6

defendant sought to preclude litigation of a claim under the 
PHRA in state court, based upon the plaintiffs prior com­
mencement and voluntary dismissal of a Title VII claim in 
federal court arising out of the same facts and circum­
stances. The superior court affirmed the dismissal of defen­
dant’s preliminary objections, holding that section 962(b) of 
the PHRA was not intended to “address the relationship be­
tween the PHRA and federal discrimination laws. . . . ” Id. 
at 269, 419 A.2d at 451.

The court of appeals relied, in part, on this holding in 
Lukus. Petitioner, on the other hand, deftly attempts to ig­
nore Lukus, preferring to fashion, without any citation of 
authority, its own theory of the legislative purpose of section 
962(b). (Petition at 12-13)

Petitioner’s arguments that section 962(b) is designed 
to promote efficiency and expertise in the Pennsylvania 
Human Relations Commission (“PHRC”) (Petition at 12), 
and to conserve state resources by requiring that a claimant 
proceed in only one state forum (Petition at 13) are irrele­
vant. Assuming, without agreeing with Petitioner’s unsup­
ported hypothesis, that Petitioner is correct, neither policy is 
undermined by the superior court’s interpretation of section 
962(b) in Lukus, or by the decision of the court of appeals 
below.6

(footnote continued from preceding page)

the Pennsylvania Supreme Court’s appellate jurisdiction in civil cases is 
very narrowly confined with respect to appeals as of right, Id. at §722, the 
remainder of its civil appellate jursidiction being subject to discretionary 
review pursuant to Petition For Allowance of Appeal, Id. at §724, the supe­
rior court is the highest court in which the vast majority of civil cases are 
heard.

6. Equally probable, given the difference between Title VU’s require­
ment that victims of discrimination are entitled to “make whole relief”, 
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), and the virtually un- 
reviewable discretion vested by the PHRA in the PHRC to fashion a reme­
dy that best serves the public interest, Murphy v. Commonwealth of

(footnote continued on next page)



7

The PHRC’s jurisdiction is narrowly circumscribed by 
its enabling legislation. Murphy v. Commonwealth o f Penn­
sylvania Human Relations Commission, 506 Pa. 549, 556- 
57, 486 A.2d 388, 392, appeal dismissed, 471 U.S. 1132 
(1985); Pennsylvania Human Relations Commission v. St. 
Joe Mineral Corp., 476 Pa. 302, 310, 382 A.2d 731, 735- 
36 (1978) (concerning the power of the PHRC: “A doubtful 
power does not exist”). Under the PHRA, the Commission 
is given jurisdiction only with respect to claims arising 
under the PHRA — not those arising under Title VII. 43 
Pa. Cons. Stat. Ann. §956. (Purdon Supp. 1989). Thus, per­
mitting a proceeding under Title VII of the Civil Rights Act 
of 1964 after the PHRC has had an opportunity to investi­
gate, conciliate and adjudicate the complaint brought under 
the PHRA will have no adverse impact on the evolution of 
law under the PHRA, nor on the development or mainte­
nance of the Commission’s expertise. Indeed, Pennsylvania 
courts have charted their own course in applying the 
PHRA, reaching results different from those compelled by 
Title VII. Compare Anderson v. Upper Bucks County Area 
Vocational School, 30 Pa. Commw. 103, 373 A.2d 126
(1977) with General Electric Corp. v. Gilbert, 429 U.S. 125 
(1976). Similarly, permitting a subsequent lawsuit in federal 
court under federal law can have no impact upon the integ­
rity of state law, C.f, Thomas v. Washington Gas Light Co., 
448 U.S. 261, 281, 283-84 (1980), the expertise of the 
PHRC or the burden on scarce state resources.

(footnote continued from preceding page)

Pennsylvania Human Relations Commission, 506 Pa. 549, 559, 486 A.2d 
388, 393 (1985), is the inference that the Pennsylvania Legislature and the 
superior court believed that the PHRC was not an appropriate forum in 
which to assure that the policy of the federal law would be carried out. C.f, 
Thomas v. Washington Gas Light Co., 448 U.S. 261, 281-82 (1980).



8

Conversely, the interpretation of section 962(b) sug­
gested by Petitioner would not effect any saving of scarce ju­
dicial resources, but at best merely alter the sequence in 
which proceedings would be brought.

Because Section 962(b) does not preclude bringing a 
claim arising under the PHRA after litigation of a claim 
arising under Title VII, Lukus, 276 Pa. Super, at 269, 419
A.2d at 451, the result advocated by Petitioner would coun­
sel victims of discrimination to pursue their Title VII claims 
before resorting to state law remedies. This is directly con­
trary to the structure laid out by Congress in Title VII.7 Of 
course, 28 U.S.C. §1738 rather than the PHRA is the 
source of whatever preclusive effect is required here. But, 
because section 962(b) of the PHRA does not preclude sub­
sequent litigation of any federal claim based on the prior lit­
igation under the PHRA — as the superior court suggested 
in Lukus8 — then section 1738 will not preclude that claim. 
Marrese v. American Academy o f Orthopaedic Surgeons.

7. Moreover, even if state courts have concurrent jurisdiction over 
suits arising under Title VII, the potential burden on state courts would be 
greater. Complaints under the PHRA must be brought before the PHRC.
Clay v. Advanced Computer Applications, Inc .,___ Pa_____ , 559 A.2d
917 (1989). Appeals from decisions of the PHRC, must go to the Com­
monwealth Court, whose jurisdiction is limited in such cases to review of 
that which was actually before the PHRC. 42 Pa. Cons. Stat. Ann. §761- 
763 (Purdon Supp. 1989). See also Kusnir v. Leach, 64 Pa. Commw. 65 
70, 439 A.2d 223, 226 (1982); Placid v. Unemployment Compensation 
Board of Review, 58 Pa. Commw. 250, 255, 427 A.2d 748, 750 (1981). 
Thus, if  section 962(b) purported to impose claim preclusion on subse­
quent Title VII actions based upon a decision under the PHRA, a com­
plainant desiring to pursue both state and federal claims would have to 
pursue them in separate proceedings, thereby increasing the burden on 
state courts.

8. Section 962(b) precludes actions under the PHRA based on prior 
actions in other courts, and precludes other actions based upon prior pro­
ceedings under the PHRA. The superior court, in Lukus, however, held 
that a prior Title VII action does not preclude a subsequent action under

(footnote continued on next page)



9

2. Pennsylvania may, and does, interpret its Human 
Relations Act differently from the interpretation 
applied by other states to similar language in their 
civil rights statutes.

The heart of Petitioner’s argument is its assumption 
that, in Kremer v. Chemical Construction Corp., 456 U.S. 
461 (1982), this Court held that the New York Executive 
Law, Section 300 (McKinney 1972), whose language is sub­
stantially the same as that of section 962 of the PHRA, re­
quires claim preclusion. Petitioner, however, overreads 
Kremer. It must also be noted that the question of whether 
New York courts would interpret section 300 to require 
claim preclusion or issue preclusion was not at issue in 
Kremer. Rather, if either claim or issue preclusion applied 
at all it would have precluded Kremer’s Title VII action. 
456 U.S. at 280-281. The Court in Kremer was thus not 
faced with the argument that the state statute at issue itself 
differentiated in its preclusive effect between federal claims 
and state claims.

Even if Petitioner’s assumption is correct, the court of 
appeals below properly ruled that New York’s interpreta­
tion of its statute “does not bind us to conclude that Penn­
sylvania would interpret its similar statute similarly___”
McNasby v. Crown Cork & Seal Co., Inc., 888 F.2d 270, 
280 (3d Cir. 1989).

Petitioner acknowledges that “virtually identical lan­
guage might be construed differently by courts of different 
states.” (Petition at 10). Indeed, Lukas’ holding to this effect 
is not unique in Pennsylvania’s application of its Human 
Relations Act. Pennsylvania has demonstrated its willing­
ness to disregard the interpretations by courts of other states 
of language similar to that of the PHRA in the equal rights

(footnote continued from preceding page)

the PHRA because the other actions referred to in section 962 are only ac­
tions arising under Pennsylvania law, not federal law. Lukus, 276 Pa. 
Super, at 269, 419 A.2d at 451.



10

statutes of those states. C.f, Zamantakis v. Pennsylvania 
Human Relations Commission, 10 Pa. Commw. 107, 116- 
117, 308 A.2d 612, ajfd, 478 Pa. 454, 307 A.2d 70 (1978) 
(holding that compensatory damages are not available 
under the PHRA, although they are available under the 
New Jersey statute whose language is similar: “Admittedly, 
the New Jersey statute is similar to ours, and is silent on 
damages. However, in the case of Zahorian v. Russell Fitt 
Real Estate Agency, 62 N.J. 399, 301 A.2d 754 (1973) cited 
by our Commission, the majority opinion refers to ‘minor 
or incidental awards’ justified by the evidence. We find the 
New Jersey result to be confusing and unacceptable under 
the Pennsylvania statute”).

3. Pennsylvania’s common law of preclusion would not 
apply claim preclusion to prevent litigation of Re­
spondent’s Title VII claim because no adjudicatory 
body in Pennsylvania in which the Respondent liti­
gated her claims under the PHRA ever had jurisdic­
tion over her Title VII claim.

The court of appeals found that under the common law 
of Pennsylvania, where the court first hearing a dispute does 
not have subject matter jurisdiction over a claim raised in a 
subsequent case, the former adjudication will not be given 
claim preclusive effect over the latter. McNasby, 888 F.2d 
at 276-77. Petitioner fails to cite a single Pennsylvania deci­
sion in support of its assertion that the court of appeals mis­
applied Pennsylvania’s common law of preclusion. (Petition 
at 15-17). Far from engaging in “independent law making,” 
(Petition at 15), the court of appeals determined that Penn­
sylvania follows what had been referred to as a rule of 
“nearly universal” application. McCarter v. Mitcham, 883 
F.2d 196, 199 (3d Cir. 1989). See also Eichman v. Fotomat 
Corp., 759 F.2d 1434, 1437 (9th Cir. 1985). C.f, Marrese, 
470 U.S. at 382; Nanavati, 857 F.2d at 112; Restatement 
(Second) of Judgments §26.



11

Pennsylvania courts have consistently applied the very 
rule applied by the court of appeals below. See, City o f Phil­
adelphia v. Stradford Arms, Inc., 1 Pa. Commw. 190, 195, 
274 A.2d 277, 280 (1971); Ostroffv. Yaslyk, 204 Pa. Super 
66, 69, 203 A.2d 347 (1964), rev’d on other grounds, 419 
Pa. 183, 213 A.2d 272 (1965). C.f, McCarter, 883 F.2d 
196 (3d Cir. 1989); Kelley, 860 F.2d at 1196 n.14; BM Y v. 
Commonwealth o f Pennsylvania Unemployment Compensa­
tion Board o f Review, 94 Pa. Common. 579, 588, 504 A.2d 
946, 951 (1986).

Proceedings in this case began before the PHRC which 
only has subject matter jurisdiction over complaints arising 
under the PHRA. Respondent’s appeal from the decision of 
the PHRC went, as required, directly to the commonwealth 
court. The commonwealth court’s jurisdiction was, and is, 
limited to questions arising out of matters actually consid­
ered by the PHRC.’ See Kusnir, 64 Pa. Commw. at 70, 439 
A.2d at 226; Placid, 58 Pa. Commw. at 255, 427 A.2d at 
750. Thus, the commonwealth court did not have subject 
matter jurisdiction over Respondent’s Title VII claims. 
Similarly, the Pennsylvania Supreme Court never had juris­
diction over Respondent’s Title VII claims, either as a mat­
ter of its original or appellate jurisdiction. See 42 Pa. Cons. 
Stat. Ann. §721-724 (Purdon 1981). Thus, as a matter of 
state law, no state adjudicatory body that considered this 
case ever had subject matter jurisdiction over Respondent’s 
claims arising under Title VII. Therefore, Respondent’s Ti­
tle VII claims could not have been raised and adjudicated in 
the prior state court proceedings. Consequently, the deci­
sions of the PHRC, the commonwealth court and the Penn­
sylvania Supreme Court in the prior action, would not have 9 *

9. The commonwealth court’s original jurisdiction would likewise not 
have encompassed Respondent’s Title VII claims because they would not 
have been brought by or against the Commonwealth of Pennsylvania.
42 Pa. Cons. Stat. Ann. §761 (Purdon 1981). See also Pennsylvania De­
partment of Aging v. Lindberg, 503 Pa. 423, 469 A.2d 1012 (1983).



12

been given claim preclusive effect by any other Penn­
sylvania court if Respondent’s Title VII claims were there­
after brought in state court.10

II. THIS CASE IS SINGULARLY INAPPROPRIATE 
AS A VEHICLE TO ADVANCE THE NOVEL THE­
ORY THAT SECTION 1738 AND TITLE VII RE­
QUIRE BROADER PRECLUSION THAN THAT 
PROVIDED BY THE LAW OF PENNSYLVANIA.

A. The language and purpose o f section 1738 require that 
the preclusive effect be the same as that applied by 
state law.

Throughout this litigation, Petitioner has premised its 
arguments upon its interpretation of state law. Only after 
the court of appeals finally rejected Petitioner’s argument 
did Petitioner change its tack and argue for the first time 
that section 1738 or Title VII require rejection of Penn­
sylvania’s preclusion rules and the creation of a broader fed­
eral rule." Its new argument is as unpersuasive as was the 
earlier one. Section 1738 is quite explicit that the full faith 
and credit given to such prior state judicial precedings is to 
be “the same . . .  as they have by law or usage in the courts 
of such state . . . . ” 28 U.S.C. § 1738. This Court held in

.10 A fortiori, if, as a matter of federal law, state courts do not have 
subject matter jurisdiction of claims arising under Title VII, c.f Bradshaw 
v. General Motors Corp., 805 F.2d 110 (3d Cir. 1986), Pennsylvania courts 
would not apply claim preclusion here. But c.f, Yellow Freight System, 
Inc. v. Donnelly, No. 89-431, 1989 Oct. Term (argued February 28, 1990) 
Petitioner’s argument that Mrs. McNasby must be claim precluded because 
Title VII jurisdiction is concurrent and because she could have filed a Title 
VII suit in the Court of Common Pleas, is absurd. That logic would lead to 
the conclusion that states have virtually exclusive jurisdiction over Title 
VII claims. Moreover, no provision of Title VII or of section 1738 requires 
claimants to pursue remedies available to them in state courts. See Kremer 
456 U.S. at 469. 11

11. This argument was first raised by Petitioner in its Petition for Re­
hearing in the court of appeals.



13

Marrese that the language of section 1738 means just what 
it says, “the same” — no more and no less. Moreover, the 
purpose of full faith and credit, to give proper respect and 
deference to the judicial proceedings of the states, is best 
served when the federal courts apply the “same” rules of 
preclusion as would be applied by other state courts.

Title VII is a particularly inappropriate statute on 
which to attempt to engraft a broader rule of preclusion 
than that provided in section 1738. The legislative history 
of Title VII makes abundantly clear that the members of 
congress expected Title VII issues to be litigated in federal 
courts before federal judges.12 This Court, of course, held in 
Kremer, that that intent was subject to the mandate of sec­
tion 1738. Nevertheless, it would be anomalous, having 
found that applying section 1738 to Pennsylvania preclu­
sion law does not result in precluding Respondent from 
having her Title VII claims heard in federal courts before

12. See, e.g., Representative McCullouch on the question of whether 
administrative agencies or courts should be responsible for enforcement: 
“A substantial number of committee members . . .  preferred that the ulti­
mate determination of discrimination rest with the Federal judiciary . . .  
H.R. Rep. 914, 88th Cong., 1st Sess., reproduced in 1964 Leg. Hist, at 
2150; Senator Cotton; “[T]he process will lead to one place — the door of 
the Federal Court.” Id. at 3308. “[Ojrdinarily, a suit will be brought in a
Federal district co u rt___ [T]he party allegedly discriminated against
may . . .  bring his own suit in Federal court___The suit against the re­
spondent, whether brought by the Commission or by the complaining par­
ty, would proceed in the usual manner for litigation in the Federal Courts.” 
Interpretive Memorandum of Senators Clark and Case, Id. at 3044. Simi­
larly, when Congress considered a series of amendments to Title VII in 
1972, which became the Equal Employment Opportunity Act of 1972, the 
members of both Houses assumed exclusive federal jurisdiction over Title 
VII actions. E.g., Representative Erlenbom: “My bill would require any 
case to be tried [in the Federal District Courts]”. Leg. Hist, at 249; Speaker 
Albert: “[T]he protection of the principles of justice requires that these 
cases be heard only in Federal courts.” Id. at 261; Senator Dominick: “In 
the district courts where under the Dominick amendment [defeated, but
later revised and adopted], suits would have to be filed___” Id. at 905.
C.f, Alexander v. Gardner-Denver Co., 415 U.S. 36, 45, 47-49 (1974).



14

federal judges, to create, out of whole cloth, a broader rule 
of preclusion just for Title VII claims.13

Moreover, this case is a particularly inappropriate vehi­
cle for engaging in such an effort. It is clear, that on the key 
issue of discrimination, after a lengthy hearing the PHRA 
concluded that the Petitioner engaged in a blatant pattern 
and practice of invidious discrimination which inured to the 
great harm of plaintiffs.14 Only because of the peculiarities 
of state law, and the handling of the case by the staff of the 
PHRC was Mrs. McNasby deprived of make whole relief,

13. When this Court did consider the question of the preclusive effect 
of a prior state proceeding not covered by Section 1738, i.e. decisions of 
state administrative agencies acting in a judicial capacity, it ruled that 
“traditional principles” or “general rules” of preclusion would apply. In so 
doing, the Court held that issue preclusion, not claim preclusion, properly 
served both the interests of federalism and the need for finality. University 
of Tennessee v. Elliott, 478 U.S. 288, 796-99 (1986). C.f, Thomas v. 
Washington Gas Light Co., 488 U.S. 261 (1980); Alexander v. Gardner- 
Denver Co., 415 U.S. 36 (1974). Thus, even if the Court were to accept 
Petitioner’s invitation to reject the court of appeals’ application of Penn­
sylvania law, and hold that Pennsylvania law is not dispositive as to 
whether claim or issue preclusion applies here, it is likely that the result 
would be precisely that which flows from the decision of the court of ap­
peals — the application of issue preclusion, not claim preclusion based up­
on the prior state proceedings.

14. At the conclusion of its more than 130 Findings of Fact the PHRC 
concluded that the record revealed that Petitioner was guilty of one of the 
“most blatant patterns of discriminatory employment practices that has 
ever been brought to this Commission’s attention . . .  all operating to the 
detriment of women employees.” The PHRC found specifically, that Peti­
tioner “engaged in a pattern and practice of discrimination based upon sex, 
female, of applicants and employees in hiring, job assignment, job transfer, 
compensation layoff and recall from layoff, on a continuing basis . . . ” and 
operated a sex-segregated job-classification and seniority system. Interest­
ingly, Petitioner has never challenged the accuracy of these findings, 
McNasby v. Crown Cork & Seal Co. Inc., 832 F.2d 47, 48 (3d Cir. 1987).



15

and were the remaining parties deprived of all relief.15 In­
deed, the application of a rule of preclusion broader than 
that required by Section 1738 in this case would fly in the 
face of this Court’s decision in New York Gaslight Club v. 
Carey, 447 U.S. 54 (1980). In New York Gaslight Club this 
Court acknowledged, inter alia, that Title VII was intended 
as a supplement to state law, and held that in a subsequent 
Title VII action in federal court, plaintiff could obtain a 
remedy beyond the relief obtained in prior proceedings 
under state law. C.f, Gardner-Denver, 415 U.S. at 47-49.

B. Petitioner’s contention that an aberrant preclusion rule 
be imposed upon Title VII cases contradicts an unbro­
ken line o f cases, including those o f this Court, apply­
ing the full faith and credit Statute, 28 U.S.C. §1738, as 
well as this Court’s Opinion in Kremer v. Chemical 
Construction Corp.

This Court held in Kremer:

It has long been established that §1738 does not allow 
federal courts to employ their own rules of res judicata 
in determining the effect of state judgments. Rather, it

15. Mrs. McNasby was denied the M l measure of back pay to which 
she would be entitled under Title VII by the PHRC’s, essentially unreview- 
able, discretionary decision to award back pay starting with the date on 
which she filed her complaint of discrimination, rather than from the date 
the discriminatory acts of Petitioner began to affect her pay adversely; and 
by the PHRC’s staffs unilateral decision to reserve litigation of post-1975 
damages until after the PHRC had decided the liability issues. The remain­
ing parties were denied relief because they were relying on the Commis­
sion’s staff to protect their rights; but the class action complaint filed by the 
staff failed to comply with Pennsylvania pleading rules and was not 
amended until after the statute of limitations had run on the claims. The 
Pennsylvania Supreme Court held that the amendment did not relate back 
to the filing of the original complaint. Murphy v. Commonwealth of Penn­
sylvania Human Relations Commission, 506 Pa. 549, 486 A.2d 388 
(1985). See also, McNasby, 656 F. Supp. at 208.



16

goes beyond the common law and commands a feder­
al court to accept the rules chosen by the state from
which the judgment is taken.

456 U.S. at 481-82. In Marrese v. American Academy of 
Orthopaedic Surgeons, 470 U.S. 373, 380 (1985), this Court 
stated, “ [sjection 1738 embodies concerns of comity and 
federalism that allow the states to determine, subject to the 
requirements of the statute and the due process clause, the 
preclusive effect of judgments in their own courts.” See also, 
Migra v. Warren City School Dist. Bd. ofEduc., 465 U.S. 75 
(1984).

Petitioner asks this Court to create an exception to its 
decisional law regarding section 1738, Elliott, supra; Par­
sons Steel, Inc. v. First Alabama Bank, 474 U.S. 518 
(1986); Marrese, supra; Migra, supra; Haring v. Prosise, 
462 U.S. 306 (1983); Kremer, supra; Allen v. McCurry, 449 
U.S. 90 (1980); Thomas v. Washington Gas Light Co., 448 
U.S. 261 (1980), and declare a special federal doctrine of 
preclusion applicable to this Title VII action on the basis of 
its assertion that Pennsylvania preclusion law is unclear. To 
so hold, however would require throwing aside both the in­
struction in Marrese that “an exception to § 1738 will not be 
recognized unless a later statute contains an express or im­
plied repeal.” 470 U.S. at 381, quoting from Kremer 456 
U.S. at 468; the holding of Kremer that “Title VII does not 
repeal §1738, either expressly or impliedly,” 456 U.S. at 
468; and the rule that federal courts may not give “greater 
preclusive effect to a state court judgment then state court 
would give to Petitioner.” Marrese, 470 U.S. at 388 (Burger
C.J., concurring) citing Migra v. Warren City School District 
Board o f Education, 465 U.S. 75 (1984).

Because no controlling precedent permits such an argu­
ment, Petitioner relies upon the concurring opinion of for­
mer Chief Justice Burger in Marrese for the proposition that 
“when state law is indeterminate or ambiguous, a clear fed­
eral rule would promote substantive interests as well.” 470



17

U.S. at 390. In Marrese, however, no Illinois court had de­
cided whether a state antitrust claim would have preclusive 
effect on a federal antitrust action arising out of the same 
facts as did the state law claim. Therefore, the Illinois pre­
clusion law was, in fact, indeterminate, and Chief Justice 
Burger expressly so noted. Id. at 287.

The court of appeals in this case, however, found that 
not only has Pennsylvania considered the express interrela­
tionship of section 962(b) of the PHRA and Title VII, see 
Lukus v. Westinghouse Elec. Corp., 276 Pa. Super 232, 419 
A.2d 431 (1980), but it has determined that the exclusivity 
provisions of the PHRA have no bearing on parallel Title 
VII proceedings. McNasby, 888 F.2d at 280-81. Moreover, 
the court of appeals also found that there is a common law 
of preclusion in Pennsylvania which is consistent with its in­
terpretation of section 962(b). Id. at 276-78. The applicabil­
ity of Pennsylvania law is clear, and thus Chief Justice 
Burger’s suggestion of what might be done where the law is 
indeterminate is of no moment.

Finally, Petitioner argues that there “is a federal inter­
est in the uniform treatment of Title VII claims of different 
states.” Its principal authority16 for this proposition is a law 
review article, Burbank, Interjurisdictional Preclusion, Full

16. The reference to Shreve, Preclusion and Federal Choice of Law, 
64 Tex. L. Rev. 1209, 1255-56 (1986), is certainly the triumph of hope 
over reality. The legislative history of Title VII contains repeated com­
ments from Senators and Representatives of both parties recognizing the 
importance of the right to a trial in federal court. C.f. Elliott, 478 U.S. at 
795-96; Gardner-Denver, 415 U.S. at 45,47-49. See, supra note 12 and ac­
companying text. There is, quite literally, no basis for suggesting a broader 
rule of preclusion for Title VII cases than that mandated by Section 1738 
and applicable state law. If any thing, the legislative history of Title VII 
suggests the narrowest possible application of preclusion. 415 U.S. at 45, 
47-49.



18

Faith and Credit and Federal Common Law, A General Ap­
proach, 71 Cornell Law Rev. 733 (1986).17 Professor Bur­
bank theorizes that the decisions of this Court in Parsons 
Steel, Marrese, Migra, Haring, Kremer and Allen are wrong 
because no state court will ever be called upon to decide 
whether claim preclusion arises from its parallel civil rights 
acts to preclude subsequent Title VII actions and that there­
fore, a preclusion doctrine imposed by the federal courts 
will support a general and allegedly more efficient, resolu­
tion of cases. Professor Burbank’s theory, however, fails to 
recognize the fact that in addition to cases such as Lukus, 
which do consider the applicability of the state’s preclusion 
rules to employment discrimination cases arising under 
both federal and a state law, Pennsylvania as well as other 
states have general rules of preclusion which guide the 
courts in this application to specific cases. Thus, there is no 
justification for this Court to ignore all of its decisions ap­
plying section 1738, and superimpose onto this proceeding 
a special federal preclusion law.

III. THE COURT OF APPEALS’ DECISION INTER­
PRETING SECTION 962(b) DOES NOT VIOLATE
THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.

Petitioner’s “last resort”18 is to urge that this Court 
grant its petition, and consider, after full briefing and argu­
ment, whether section 962(b) of the PHRA, as interpreted 
by the Superior Court of Pennsylvania in Lukus and the

17. Professor Burbank was counsel for Petitioner in the Court of 
Appeals, and when Petitioner filed its prior Petition for a Writ of Certiora­
ri, Crown Cork & Seal Co., Inc. v. McNasby, No. 87-1198, 1987 Oct. 
Term.

18. Petitioner’s argument does call to mind, Mr. Justice Holmes’ ref­
erence to allegedly improper classification as “the usual last record of con­
stitutional arguments.” Buck v. Bell, 274 U.S. 200, 208 (1927).



19

court of appeals below, violates the Equal Protection Clause 
of the Fourteenth Amendment.

Unless a statute provokes strict judicial scrutiny be­
cause it interferes with a ‘fundamental right’ or dis­
criminates against a ‘suspect class,’ it will ordinarily 
survive an equal protection attack so long as the chal­
lenged classification is rationally related to a legitimate 
governmental purpose.

Kadrmas v. Dickinson Public Schools,___ U.S.____ , 101
L.Ed.2d 399, 409 (1988). Petitioner apparently concedes 
that the classification allegedly created by section 962(b) of 
the PH RA does not interfere with a “fundamental right” 
nor discriminate against any “suspect class.” Petition at 24- 
25. Thus, Petitioner must carry the heavy burden of dem­
onstrating that the statute, as interpreted “is both arbitrary 
and irrational.” Id. a t ___ , 101 L.Ed.2d at 422.

Nevertheless, Petitioner argues that the only legitimate 
governmental interest would be preventing duplicative liti­
gation. Even if that were so, that interest is well served by 
section 962(b)’s non-inclusion of federal claims.19 More­
over, the fact that the PHRC’s jurisdiction is limited to the 
enforcement of the PHRA, the additional fact that the 
PHRA (unlike Title VII) encompasses discrimination in, 
e.g., housing and public accommodations, as well as em­
ployment 43 Pa. Cons. Stat. Ann. §951 et seq. (Purdons 
Supp. 1989), and that its mandate is to serve the public in­
terest of Pennsylvania rather than represent individuals, 
Murphy, 506 Pa. at 559, 486 A.2d at 393, it is equally 
probable that in limiting section 962(b) Pennsylvania decid­
ed that the PHRA was not an appropriate vehicle to ensure 
the protection of the congressional policies underlying fed­
eral civil rights claims. C.f, Lukus, 276 Pa. Super, at 269, 
419 A.2d at 450-51.

19. See supra pages 5-8.



20

IV. CONCLUSION
The court of appeals, familiar with application of 

Pennsylvania law, after careful review of applicable deci­
sions of Pennsylvania appellate courts held that under 
Lukus v. Westinghouse Electric Corp., 276 Pa. Super. 232, 
419 A.2d 431 (1980), the exclusivity provision of the Penn­
sylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. 
§962(b), does not preclude subsequent litigation of a claim 
arising under Title VII of the Civil Rights Act of 1964, 42 
U.S.C. §2000 e, et seq. There is no reason to disturb that de­
termination. Similarly, there is no reason to use this case as 
a vehicle for re-examining the continuous line of decisions 
in this Court, and cases throughout the federal court system, 
holding that the Full Faith and Credit Statute, 28 U.S.C. 
§1738, requires that federal courts give the same preclusive 
effect to a prior state court decision as would be accorded 
that decision in another court of that state. Finally, Petition­
er has raised no issue or argument that would justify this 
Court’s entertaining of a claim that section 962(b) of the 
PHRA violates the Equal Protection Clause of the Four­
teenth Amendment.

Respectfully submitted,

A lan M. Lerner 
0Counsel o f Record) 

J effrey Ivan Pasek 
Stephen V. Yarnell 
John F. L icari 
Cohen, Shapiro, Polisher, 

Shiekman and Cohen 
22nd Floor, PSFS Building 
12 South 12th Street 
Philadelphia, PA 19107 
(215) 922-1300 

and
Seth F. Kreimer 
3400 Chestnut Street 
Philadelphia, PA 19107 
(215) 898-7447 

Counsel for Respondents