PITTSBURGH – Litigation from a local man with a chronic lung condition against a Western Pennsylvania supermarket, a suit alleging it violated the Pennsylvania Human Relations Act when it turned him away for his decision not to wear a mask while shopping in June 2020, has been stayed until the autumn.
Robert Haggerty of Brackeridge first filed suit in the Allegheny County Court of Common Pleas on April 22 versus Community Supermarket, of Verona.
“Haggerty is a person with several physical conditions that substantially limit his major life activity of breathing and his respiratory and immune system. Plaintiff has a chronic lung condition, including a nodule in his right lung. Healthcare providers have cautioned him against wearing a mask,” the suit said.
“The events complained of occurred at the Community Supermarket in Natrona Heights on June 13, 2020. Haggerty had shopped at this location weekly. Haggerty was in the store shopping without a mask. He was confronted by several employees who swore at him and threatened violence, because Haggerty would not put on a mask. Plaintiff responded that there is no state law requiring him to wear a mask, and that he could not wear a mask due to his medical conditions. The manager said he personally agreed with Haggerty, but he had to enforce the corporate policy.”
The suit explained when Haggerty pointed out that there were customers checking out at the registers without wearing masks, he was told that if people make it to the check-out line without a mask and without being confronted by a manager, they are permitted to purchase their groceries. Subsequently, Haggerty was turned away.
Haggerty explained that when infectious disease mitigation measures were first implemented at the beginning of the pandemic by Gov. Tom Wolf and then-Secretary of the Department of Health Dr. Rachel Levine, exceptions were made for individuals who cannot wear a mask due to a medical condition.
“Despite the Pennsylvania Secretary of Health’s order and CDC recommendations, Community Supermarket implemented policies and procedures that require all customers to wear cloth masks even if they are disabled, and they cannot wear a mask due to their medical conditions,” the suit stated.
“Community Supermarket’s policy and procedure violated the PHRA because complainant was denied equal enjoyment of the public accommodation, because of his disability. Complainant believes that he was denied access to a public accommodation and retaliated against because of his disability, in violation of the PHRA.”
On June 6, the defendant filed preliminary objections, charging that Haggerty failed to exhaust his administrative remedies with the Pennsylvania Human Relations Commission.
“Haggerty’s complaint against Community Supermarket suffers from an obvious procedural defect – he neglected to first exhaust his administrative remedies with the Pennsylvania Human Relations Commission (PHRC) before filing his complaint. Haggerty’s failure to exhaust his available administrative remedies is fatal, under black letter law, to his claims here. Based on allegations on the face of Haggerty’s complaint, the statute of limitations on his claims expired long ago,” the objections stated.
“Haggerty alleges in his complaint, without any support or attached proof, that he ‘has exhausted administrative remedies as he filed a complaint with the Pennsylvania Human Relations Commission more than one year ago.’ Community Supermarket has never received notice of a PHRA complaint against it by Haggerty despite the requirement that the PHRC serve a complaint filed with the PHRC on every named respondent. Haggerty’s failure to exhaust his administrative remedies as required by the PHRA and applicable Pennsylvania law bars him from the relief sought in the complaint.”
The defendant argued that pursuant to 231 Pennsylvania Rule of Civil Procedure 1028(a)(7), Community Supermarket requests that the Court sustain this preliminary objection and dismiss the complaint – and furthermore, because “the timeframe for Haggerty to file a timely PHRA complaint against Community Supermarket has now lapsed, and any amendment to the complaint would be futile.”
UPDATE
In an Aug. 1 response, the plaintiff said that he had “clearly alleged exhaustion of administrative remedies by filing a complaint with the PHRC more than one year ago” and as a result, the defendant’s preliminary objections should be overruled.
Allegheny County Court of Common Pleas Judge Mary C. McGinley issued an order staying the case until at least October.
“Upon consideration of the foregoing petition, it is hereby ordered, adjudged and decreed that (1) A rule is issued upon the respondent to show cause why the moving party defendant is not entitled to the relief requested, i.e. why the complaint should not be dismissed for failure to exhaust administrative remedies; (2) The petition shall be decided under Pennsylvania Rule of Civil Procedure No. 206.7; (3) Depositions shall be completed within 60 days of this date; (3a) Any motion to compel and/or motion for protective order in regard to the resolution of this rule shall be presented to the General Motions Judge,” McGinley said.
“(4) Petitioner’s brief to be filed on or before Oct. 14, 2022; (5) Respondent’s brief to be filed on or before Oct. 29, 2022; (6) Argument shall be scheduled by praecipe with the Chief Motions Clerk upon completion of depositions (i.e. depositions must be transcribed and filed with the Department of Court Records – Division); (7) Notice of the entry of this order shall be provided to all parties by the petitioner; and (8) All proceedings shall be stayed in the meanwhile.”
For a lone count of violating the Pennsylvania Human Relations Act, the plaintiff is seeking compensatory damages in excess of the compulsory arbitration limits, reasonable attorney’s fees and costs, in addition to a trial by jury.
The plaintiff is represented by Thomas B. Anderson of Thomson Rhodes & Cowie, in Pittsburgh.
The defendant is represented by Matthew R. Mazgaj of Marcus & Shapira, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-004626
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com