Subchapter D. PLEADINGS AND OTHER
PRELIMINARY MATTERS
Sec.
42.31. Commencement of proceedings by complaint and answer under the acts.
42.32. Contents of complaint and answer.
42.33. Effect of answer and new matter; effect of failure to file answer; rule to show cause.
42.34. Motions.
42.35. Amendment of complaint or answer.
42.36. Complaints seeking relief for persons other than the named complainant.§ 42.31. Commencement of proceedings by complaint and answer under the act.
(a) A proceeding may be commenced by filing a verified complaint with the Commission. The Commission will, thereafter, enter the complaint on its official docket and serve the complaint by sending a copy to each named respondent, within 30 days of the date of the entry of the complaint on its docket; except that if the complaint contains one or more allegations under section 5(h) or 5.3 of the act (43 P. S. § § 955(h) and 955.3), involving unlawful housing discrimination cognizable under the Fair Housing Act, or under section 5(d) or (e) of the act, if the underlying or supporting action involves unlawful housing discrimination cognizable under the Fair Housing Act, the complainant shall be advised of the time limits for processing such a complaint, and of the choice of forums as set forth in § 42.101(c) (relating to hearings), and the complaint shall be served within 10 days after the date of filing, along with a notice to the respondent of the respondent’s rights and duties.
(b) The Attorney General or the Commission, by the Executive Director or by another person the Commission may authorize, may commence a proceeding by filing a complaint at any office of the Commission.
(c) The respondent shall file with the Commission, and serve on each named complainant, a written, verified answer within 30 days of service of the complaint, including those complaints containing one or more allegations under section 5(h) or 5.3 of the act, involving unlawful housing discrimination cognizable under the Fair Housing Act, or under section 5(d) or (e) of the act, if the underlying or supporting action involves unlawful housing discrimination cognizable under the Fair Housing Act. Upon written request of the respondent, and for good cause shown, the Commission may grant an extension of not more than 30 days in which to file the answer. The respondent shall serve a copy of the answer on each named complainant, and where an attorney has entered an appearance on behalf of a named complainant, shall also serve a copy on the attorney.
(d) Failure to file an answer within the required time will be deemed to place the respondent in default and may result in appropriate action under § 42.33(c) and (d) (relating to effect of answer and new matter; effect of failure to file answer; rule to show cause).
(e) Subsections (a)—(d) supplement 1 Pa. Code § 35.9 (relating to formal complaints generally).
Source The provisions of this § 42.31 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; reserved April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909; amended December 17, 1993, effective December 18, 1993, 23 Pa.B. 5897. Immediately preceding text appears at serial page (156351).
Notes of Decisions Commission action may be invoked by a verified complaint transmitted from a federal agency, since nothing requires that a complainant file in person, the exclusive action provision of the Pennsylvania Human Relations Act (43 P. S. § 962(b)) only bars those who have previously sought relief under the laws of the Commonwealth rather than a Federal remedy, and 16 Pa. Code § 42.11 (relating to time of filing) preserves Commission discretion to entertain complaints in noncompliance with 16 Pa. Code § 42.31. Lukus v. Westinghouse Electric Corp., 419 A.2d 431 (Pa. Super. 1980).
Cross References This section cited in 16 Pa. Code § 42.33 (relating to effect of answer and new matter; effect of failure to file answer; rule to show cause).
§ 42.32. Contents of complaint and answer.
(a) The complaint may be by letter or other writing and shall set forth the following:
(1) The name and address of the person claiming to be aggrieved, the Commission or the Attorney General, who will be designated as the complainant.
(2) The name and address of the person, labor organization, employment agency or educational institution alleged to have committed the practice complained of, who will be designated as the respondent.
(3) The particulars of the unlawful discriminatory practice complained of.
(4) A verification consisting of a sworn oath or affirmation or an unsworn statement by the signer to the effect that the complaint is made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).
(5) Other information as may be required by the Commission.
(b) The answer to a complaint shall be in writing and verified. The verification shall be as specified in subsection (a)(4). The answer shall be so drawn as to fully and completely advise the parties and the Commission as to the nature of all defenses, shall admit or deny with specificity each averment of fact in the complaint, and shall state clearly and concisely the facts and matters of law relied upon.
(c) Subsection (a) supersedes 1 Pa. Code § 35.10 (relating to form and contents of formal complaints), and subsection (b) supersedes 1 Pa. Code § 35.35 (relating to answers to complaints and petitions).
Source The provisions of this § 42.32 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (60567).
§ 42.33. Effect of answer and new matter; effect of failure to file answer; rule to show cause.
(a) An allegation of new matter contained in the answer, including the alleged facts underlying defenses raised, will be deemed denied without the necessity of a reply.
(b) Averments of fact in the complaint are admitted if not denied specifically or by necessary implication in a timely answer. A statement by the respondent in the answer that after reasonable investigation the respondent is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect of a denial.
(c) If the Commission staff determines that a complaint sets forth sufficient facts to raise an inference of unlawful discrimination under the act, and the respondent has failed to deny these facts in an answer, or has failed to file a timely answer, the staff may petition the Commission, through the appropriate motions commissioner or examiner, for a rule to show cause why this failure should not result in a finding of probable cause, and a judgment for the complainant on the issue of liability. If the Commission staff fails to file a petition within 10 days of the respondent’s failure to file a timely answer, including extensions granted under § 42.31 (relating to commencement of proceedings by complaint and answer under the acts), the complainant may, thereafter, also file a petition. The Commissioner or examiner will then cause the rule to be issued and served on the respondent for a reply.
(d) Upon consideration of the petition, replies to the rule to show cause, and other information as the motions commissioner or examiner may deem necessary or appropriate, the commissioner or examiner will do one of the following:
(1) For good cause, permit an otherwise untimely answer, which has been filed and is well pled, to stand, and return the case to the staff for further appropriate action.
(2) Order an answer to be filed by a date certain, with the failure to file resulting in an appropriate order or recommendation under paragraph (3) or (4).
(3) Return the case to the staff for further appropriate action, if the complaint does not appear to set forth sufficient facts to raise an inference of unlawful discrimination.
(4) Recommend to the Commission a finding of probable cause, and the entry of a judgment for the complainant on the issue of liability, to be followed by a public hearing on the issue of damages if conciliation efforts fail.
(e) Subsections (a)—(d) supersede 1 Pa. Code § 35.35 (relating to answers to complaints and petitions).
Source The provisions of this § 42.33 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial pages (60567) to (60568).
Cross References This section cited in 16 Pa. Code § 42.31 (relating to commencement of proceedings by complaint and answer under the acts).
§ 42.34. Motions.
(a) Motions or other requests for procedural rulings or relief shall be filed with the Commission in writing, set forth the ruling or relief sought, state the grounds therefor and the statutory or other authority relied upon, include a proposed order and comply with § 42.12 (relating to caption).
(b) Motions made during a preliminary or public hearing under this chapter may be stated orally on the record. The presiding officer may require oral or written supplementation as the officer deems necessary or appropriate.
(c) Replies to motions filed in accordance with subsection (a) shall be in writing. The staff counsel shall reply to motions, which seek to limit the Commission’s ability to proceed with a complaint, by making whatever good faith arguments may exist in favor of the Commission’s continued ability to proceed.
(d) Written motions and replies thereto shall be served by the submitting party upon all parties to the proceeding.
(e) Upon the filing and consideration of a motion, any replies thereto, and other information the Commission may deem necessary or appropriate to obtain, the Commission will issue and serve the parties with a written ruling thereon, including the reasons for the ruling.
(f) Subsections (a)—(c) and (e) supplement 1 Pa. Code § 35.54 (relating to motions as to complaint).
(g) Subsection (d) supplements 1 Pa. Code § § 33.31—33.37 (relating to service of documents).
Source The provisions of this § 42.34 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial pages (60568) and (84181).
Cross References This section cited in 16 Pa. Code § 42.131 (relating to Motions Commissioners and Motions Examiners).
§ 42.35. Amendment of complaint or answer.
(a) The complaint or answer may be amended at any time prior to approval of a hearing on the merits and thereafter by leave of the Commissioners, hearing commissioners or permanent hearing examiner.
(b) The complaint may be amended to cure technical defects or omissions, to clarify or amplify allegations made therein, or to add material allegations which are related to or grow out of the subject matter of the original complaint, and these amendments shall relate back to the original filing date of the complaint.
(c) The complaint may not be amended to delete an allegation under § 42.36(a) (relating to complaints seeking relief for persons other than the named complainant) except by leave of the Commission upon a showing that the amendment will not prejudice the interests of the class of unnamed persons upon whose behalf the complaint was brought.
(d) Subsections (a)—(c) supersede 1 Pa. Code § 35.48(b) (relating to amendment of pleadings generally).
Source The provisions of this § 42.35 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; corrected August 20, 1976, effective August 14, 1976, 6 Pa.B. 1985; amended October 28, 1983, effective October 29, 1983, 13 Pa.B. 3283; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84181).
§ 42.36. Complaints seeking relief for persons other than the named complainant.
(a) Whenever a person seeks relief for unnamed persons, other than a cease and desist order, the complaint shall include an allegation to the effect that the complaint is made on behalf of other persons who have been affected by the alleged unlawful discriminatory practice.
(b) The Commission will not enter into an adjustment or settlement of a complaint, which includes a subsection (a) allegation, unless the Commission determines that the adjustment or settlement does not prejudice or, in the alternative, adequately protects the interests of the class of unnamed persons upon whose behalf the complaint was brought.
(c) The inclusion of any person within a class of unnamed persons under subsection (a) does not preclude the person from filing and pursuing an individual complaint of unlawful discrimination before the Commission.
Source The provisions of this § 42.36 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
Cross References This section cited in 16 Pa. Code § 42.35 (relating to amendment of complaint or answer).
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