IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DOLORES (DEE) BARRETT, :

Plaintiff, : CIVIL ACTION

:

v. :

: NO. 02-4421

THE GREATER HATBORO :

CHAMBER OF COMMERCE, INC., et al., :

Defendants. :

Tucker, J. August 19, 2005

MEMORANDUM AND ORDER

Presently before this Court are Defendants’ Motion for Summary Judgment (Doc. 23) and

Plaintiff’s Memoranda in Opposition (Docs. 25-27). For the reasons set forth below, the Court will

deny Defendants’ motion for summary judgment.

I. FACTUAL BACKGROUND

From the evidence of record, taken in a light most favorable to the Plaintiff, the pertinent

facts are as follows. Plaintiff, Dolores Barrett (“Barrett”), was an employee of the Greater Hatboro

Chamber of Commerce (the “Chamber”) for approximately ten (10) years. At the time of Plaintiff’s

hiring, Defendant John Aiken (“Aiken”) was the Vice President of the Chamber Board and

Plaintiff’s supervisor. Plaintiff’s duties included building membership, running the Chamber’s

affairs, organizing events, and accompanying Defendant Aiken on his visits with Chamber members.

On these visits, Plaintiff alleges that Defendant Aiken would touch her thighs when they were sitting

down and compliment her appearance and performance.

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Around Christmas 1991, Plaintiff alleges that Defendant Aiken inappropriately kissed her

on the lips in the Chamber’s office during work hours. In 1993, Plaintiff alleges that she began to

work with Defendant Aiken more frequently in computerizing accounting records. During this time,

Defendant Aiken continued to touch her inappropriately. Plaintiff objected on these occasions and

asked Aiken to stop, and pulled away. Instead of Defendant Aiken honoring Plaintiff’s request, he

would laugh and belittle her. Plaintiff alleges that the harassment continued throughout 1994.

In 1995, Plaintiff claims she attempted to formally discuss with Defendant Aiken his

harassing behavior, but he refused. Approximately two weeks later, Defendant Aiken came into

Plaintiff’s office and suddenly tried to put his fingers down the front of her blouse. Plaintiff

contends that she was shocked and pulled away quickly. Plaintiff asked him to stop, but Defendant

Aiken allegedly responded by saying that he was “just a friendly guy who liked to kid around.” The

next incident occurred in 1996, when Defendant Aiken began touching Plaintiff again. Plaintiff

claims that Defendant Aiken told her that his wife would not have sex with him. Plaintiff told Aiken

that he and his wife needed to see a marriage counselor.

After the Christmas parade in 1999, Defendant Aiken offered to help Plaintiff put away the

Christmas signs, posters, and parade paraphernalia. Plaintiff knelt on the floor to move things

around in the closet and when she turned around Defendant Aiken stood before her with his pants

unzipped and his penis exposed, massaging himself. Plaintiff hit him above the knees, pushed him

away and shouted at Aiken to get out. Plaintiff also threatened to tell Aiken’s wife about the incident

and her husband. Thereafter, Defendant Aiken stopped coming to her office.

Plaintiff also had encounters with Defendant Glantz as well. In 1995, Glantz became

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President of the Chamber Board. Plaintiff alleges that the harassment by Defendant Glantz started

after he became President. Plaintiff claims that Defendant Glantz called her a “Wop,” and routinely

asked her whether she had sex the night before. Plaintiff alleges that Defendant Glantz called her

an “Italian bitch” and compared her to his wife, who was also Italian. Thereafter, Plaintiff attempted

to discuss Defendant Glantz’s comments and his conduct with him, but he erupted into an abusive

shouting tirade, wherein he also threatened to fire her. Subsequently, Glantz claimed he was only

joking. 

Around March 1998, Plaintiff wrote a formal complaint to Defendant Glantz regarding his

verbal abuse and his conduct. After her formal complaint, Plaintiff claims Glantz became more

abusive. Thereafter, Plaintiff went to Defendant Glantz’s place of business to have him sign checks

for the Chamber’s bills. After Plaintiff left, Defendant Glantz called her and made sexually

offensive remarks to her. Plaintiff contends that Aiken frequently heard Glantz’s remarks but Aiken

did not take any actions himself. In the Fall of 1999, Plaintiff alleges that Defendant Glantz’s

behavior became more offensive. Plaintiff told him that she did not appreciate the way he talked to

her, and when he was not responsive, Plaintiff threatened to go to the Board of Directors if he did

not stop his harassing ways. 

Late December 1999 or early January 2000, Plaintiff alleges that she took several checks to

Defendant Glantz’s office for his signature. Defendant Glantz noticed her new car and made a

sexually inappropriate comment to her. Plaintiff alleges that Glantz continued to harass her through

2000. Around October 2000, the Chamber Board advised Plaintiff that she would be demoted

because she had “grown the Chamber” and the job is “too big for one person.” Thereafter, Plaintiff

learned that Defendant Aiken would take over her administrative duties, and the Chamber Board

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offered her a job as a chief marketing director for half the salary, or $15,000 a year. The Chamber

Board gave Plaintiff two choices: (1) sign a voluntary separation agreement, or (2) be involuntarily

discharged. Plaintiff did not accept the job demotion at half pay, and she was involuntarily

discharged. Plaintiff contends that the Chambers never created or filled the position of chief

marketing director and that the position was a ploy to terminate her. 

As a result of these events, Plaintiff filed the present action claiming violations of the Equal

Rights Amendment to the Pennsylvania Constitution (the”PERA”), Pa. Const. Art. 1, § 28, and the

Pennsylvania Human Relations Act (the “PHRA”), 43 Pa. Cons. Stat. Ann. § 951 et seq. Defendants

moved to dismiss both of Plaintiffs’ claims. The Court granted the motion to dismiss as to the

PHRA claim and denied the motion to dismiss the PERA claim. Defendants now move for summary

judgment on the PERA claim.

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for

the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute

is “material” if it might affect the outcome of the case under the governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the

district court of the basis for its motion and identifying those portions of the record that it believes

demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

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Section 1332 grants District Courts “original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $ 75,000...and is between...Citizens of different States.” 28 U.S.C. § 1332.

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322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the

movant’s initial Celotex burden can be met simply by “pointing out to the district court that there is

an absence of evidence to support the non-moving party’s case.” Id. at 325. After the moving party

has met its initial burden, “the adverse party’s response, by affidavits or otherwise as provided in this

rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P.

56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making

a factual showing “sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “[I]f the

opponent [of summary judgment] has exceeded the ‘mere scintilla’ [of evidence] threshold and has

offered a genuine issue of material fact, then the court cannot credit the movant’s version of events

against the opponent, even if the quantity of the movant’s evidence far outweighs that of its

opponent. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.

1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most

favorable to the opposing party. Anderson, 477 U.S. at 255. Credibility determinations, the

weighing of evidence, and the drawing of legitimate inferences from facts must await trial. Id.

III. DISCUSSION

A. Subject Matter Jurisdiction

Plaintiff Barrett attempts to invoke the jurisdiction of this Court through diversity of

citizenship.1 See 28 U.S.C. § 1332. Defendants challenge diversity of citizenship, claiming that the

parties in this case are all citizens of Pennsylvania, and therefore not diverse. Defs.’ Mem. at 3.

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According to Defendants, Plaintiff Barrett manufactured diversity by falsely claiming to be a New

Jersey citizen. Defs.’ Mem. at 4. Plaintiff owns homes in both Pennsylvania and New Jersey.

Defendants contend that Plaintiff’s New Jersey home is a vacation home and not her primary

residence. In April 2001, Plaintiff became the Executive Director of the Greater Wildwood Hotel

Motel Association. Pl.’s Mem. at 4,7. Plaintiff contends that at that time, her New Jersey home

became her permanent residence. In diversity cases, district courts must look at the citizenship of

the parties at the time of the commencement of the action. Brough v. Strathmann Supply Co., 358

F.2d 374 (3d Cir. 1966). Plaintiff filed this action on July 3, 2002. The Court must determine

whether on that date, she was a New Jersey citizen.

The Court finds that the Plaintiff was a New Jersey citizen at the time she filed this action.

Change of citizenship is determined by a party’s intent to establish domicile in the new state.

Krasnov v. Dinan, 465 F.2d 1298, 1300-01 (3d Cir. 1972) (citation omitted). To change domicile,

a person must (1) have a physical presence in the new jurisdiction and (2) have the intent to remain

there indefinitely. Krasnov, 465 F.2d at 1300-01. The “vague possibility of eventually going

elsewhere,” or the possible action of “returning whence one came” are irrelevant. Gallagher v.

Philadelphia Transp. Co., 185 F.2d 543, 546 (3d Cir. 1950). (quotations omitted). The party’s

declarations, exercise of political rights, payment of taxes, house of residence, and place of business

are all indicia of intent to establish domicile. Id. at 1301 (citing Wright Federal Courts § 26, at 87

(2d ed. 1970); Mitchell v. United States, 88 U.S. 350, 353 (1874)). 

All of the Gallagher factors favor the Plaintiff’s position. In April 2001, the time Plaintiff

claims she changed her state citizenship, both Plaintiff and her husband were employed in New

Jersey. Pl.’s Mem. at 4,7. Neither Plaintiff nor her husband have worked in Pennsylvania since that

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date. Id. Plaintiff and her husband pay New Jersey state income taxes and have both of their

automobiles registered and insured in the state of New Jersey. Id. at 3-4. Moreover, Plaintiff

testified in her deposition of her intent to remain in New Jersey due to her husband’s illness. Id. at

4-5. Therefore, Plaintiff has established an intent to establish domicile in New Jersey. Defendants’

motion for summary judgment for lack of subject matter jurisdiction is denied.

B. Pennsylvania Equal Rights Amendment Claim

Plaintiff brings her state claim for discrimination under the PERA, which states that

“[e]quality of rights under the law shall not be denied or abridged in the Commonwealth of

Pennsylvania because of the sex of the individual.” Pa. Const. Art. 1, § 28. Defendants make two

arguments in support of summary judgment. First, Defendants contend that they are entitled to

summary judgment because Pennsylvania does not recognize a private right of action for damages

for PERA violations. Defs.’ Mem. at 6. Secondly, Defendants argue that the PHRA, 42 Pa. Cons.

Stat. § Ann. 951 et seq, preempts a private cause of action under the PERA. Id. at 7-8. The

Pennsylvania Supreme Court has not ruled on this issue and there is a split in this district as to

whether such a cause of action exists. Compare Ryan v. Gen. Mach. Prod., 277 F. Supp. 2d 585

(E.D. Pa. 2003) (refusing to recognize a private cause of action under the PERA for a claim of

gender wage discrimination), with Spirk v. Centennial Sch. Dist., 2005 U.S. Dist. LEXIS 2782 (E.D.

Pa.. 2005)(holding that a private right of action for damages was available for gender discrimination

under the PERA). Therefore, this Court must predict whether the Pennsylvania Supreme Court

would recognize a private cause of action under the PERA, if it were presented with that issue.

It is clear to the Court that Plaintiff’s claim should survive. When confronted with the same

issue, the Third Circuit Court of Appeals predicted that the Pennsylvania Supreme Court would

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 Defendants also argue that individual Defendants Aiken and Glantz are entitled to summary judgment

because there is no private right of action against individuals under the PERA. Defs.’ Mem. at 8. This Court

disagrees. There is nothing in the text of the PERA that precludes a claim for individual liability. See Clark v.

Amerisourcebegen Corp., 2005 U.S. Dist. LEXIS 1459 (E.D. Pa. 2005) (allowing a plaintiff to state a PERA claim

against private, individual defendants). The Court has already held that a plaintiff can state a claim against

individuals for PERA violations. Defendants’ motion is denied.

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recognize a private right of action under the PERA. Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d

779,789 (3d Cir. 1990) (citations omitted) (“[w]e are of the view that a private right of action is

available for cases of gender discrimination under the Pennsylvania ERA”). Specifically, the Pfeiffer

court opined that “damages...may be available under the [Pennsylvania] ERA.” Id. This Court

agrees with the Court of Appeals and holds that Pennsylvania does recognize a private cause of

action for damages under the PERA.

Furthermore, a claim under the PERA is not precluded by the PHRA as Defendants suggest.

While the PHRA may prevent a plaintiff from bringing common law claims for discrimination, it

does not address claims brought pursuant to the PERA. See Imboden v. Chowns Communs., 182 F.

Supp. 2d 453, 458 (E.D. Pa. 2002) (citations omitted). The voters of Pennsylvania ratified the PERA

in 1971, sixteen years after the Pennsylvania legislature enacted the PHRA. Id. The Pennsylvania

legislature could not have intended to preempt a right that did not exist at the time they considered

the legislation. Consequently, the PHRA cannot act as a bar to PERA claims. Defendants’ motion

here is denied.2

IV. CONCLUSION

For the reasons stated above, this Court will deny Defendants’ Motion for Summary

Judgment. Plaintiff has meet her burden to establish subject matter jurisdiction based on diversity

of citizenship. Additionally, the Court finds that Plaintiff can state a claim for discrimination under

the PERA against all of the named Defendants in this case. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DOLORES (DEE) BARRETT, :

Plaintiff, : CIVIL ACTION

:

v. :

: NO. 02-4421

THE GREATER HATBORO :

CHAMBER OF COMMERCE, INC., et al., :

Defendants. :

Tucker, J. August 19, 2005

ORDER

AND NOW, on this 19th day of August, 2005, upon consideration of Defendants’ Motion for

Summary Judgment (Doc. 23) and Plaintiff’s Memoranda in Opposition (Docs. 25-27), IT IS

HEREBY ORDERED AND DECREED that Defendants’ Motion is DENIED.

BY THE COURT:

/S/ Petrese B. Tucker

_____________________________

Hon. Petrese B. Tucker, U.S.D.J.

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