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Uber v. Slippery Rock University of Pennsylvania of the State System of Higher Education11/23/2005
e tolling" because the University misled him or because he had filed an internal complaint with the University's Director of Social Equity. (5/13/04 Trial Ct. Op. at 4-8.) The trial court noted that Uber received the communication which he claims misled him after the 180-day time limit had run, and there was no authority for the proposition that filing an internal complaint with an employer tolls the statute of limitations for filing a claim with the PHRC. (5/13/04 Trial Ct. Op. at 5-8.)
The trial court also granted summary judgment with respect to several aspects of Uber's Count II, which relates to his retaliation claims. However, pertinent to the appeal before us, the trial court denied the motion with respect to the single claim that Uber was given a poor performance evaluation in 1999 in retaliation for his complaints. Therefore, a non-jury trial was held on that single issue and, at the conclusion of Uber's case, the trial court granted the University's Motion for Non-suit. In an order dated January 19, 2005, the trial court held that Uber failed to meet his burden of establishing that the University took an adverse employment action against him and dismissed the case. (1/10/05 Trial Ct. Order.) Uber now appeals to this Court.
On appeal, Uber argues that the trial court erred by granting: 1) the University partial summary judgment on the claim of age discrimination; and 2) the University's Motion for Non-suit after he rested in the January 2005 non-jury trial.
This Court's review of a trial court's grant of summary judgment and non-suit is limited to determining whether the trial court abused its discretion or committed an error of law. D.C. v. Sch. Dist. of Philadelphia, 879 A.2d 408, 413 n.3 (Pa. Cmwlth. 2005); Gramlich v. Lower Southampton Twp., 838 A.2d 843, 845 (Pa. Cmwlth. 2003), pet. for allowance of appeal denied, 578 Pa. 696, 851 A.2d 143 (2004). Summary judgment is proper only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Kincel v. Dep't of Transp., 867 A.2d 758, 761 n.7 (Pa. Cmwlth. 2005). Likewise, " non-suit should be entered only in a clear case, and, on appeal from the refusal to take off a compulsory non-suit, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of plaintiff." Rutter v. Northeastern Beaver County Sch. Dist., 496 Pa. 590, 595-96, 437 A.2d 1198, 1200 (1981)(quoting Cushey v. Plunkard, 413 Pa. 116, 117, 196 A.2d 295, 296 (1964)).
Uber first argues that the trial court erred in granting the University a partial summary judgment on the claim of age discrimination because his time deadline of 180 days should have been extended under the theory of equitable tolling. In general, any complaint filed pursuant to the PHRA must be filed within 180 days after the alleged discrimination. 43 P.S. 959(h). Here, Uber was notified of the alleged discrimination on March 26, 1998; thus, the 180 days expired on September 22, 1998. However, he did not file a claim with the PHRC until May 29, 1999. There is no dispute that Uber was late in filing his age discrimination claim. However, under the principals of "equitable tolling," a claim filed beyond the 180-day time limit may be permitted where the defendant actively misleads the plaintiff regarding the cause of action; where extraordinary circumstances prevent the plaintiff from asserting his rights; and where a plaintiff has asserted his rights in a timely fashion, but in the wrong forum. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3rd Circ. 1994).
Ub
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