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IN THE UNITED STATES DISTRICT COURT FOR

 THE EASTERN DISTRICT OF PENNSYLVANIA

DOLORES (DEE) BARRETT, : CIVIL ACTION NO.

:

Plaintiff, : 02-CV-4421

:

v. :

:

THE GREATER HATBORO CHAMBER : JURY TRIAL DEMANDED

OF COMMERCE, INC., JOHN J. (BUD) :

AIKEN, and MICKEY GLANTZ, :

:

Defendants. :

MEMORANDUM OF LAW IN SUPPORT 

OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants Greater Hatboro Chamber of Commerce, Inc., John J. (Bud) Aiken, and

Mickey Glantz (collectively, the “Defendants”) hereby file this memorandum of law in support

of their Motion for Summary Judgment:

I. INTRODUCTION

On or about July 3, 2002, Dolores (Dee) Barrett, ("Plaintiff") filed the instant Federal

Civil Action Complaint alleging a violation of Article I § 28 of the Pennsylvania Constitution

and wrongful discharge in violation of public policy under the PHRA. The Court dismissed

Plaintiff’s wrongful discharge claim on August 19, 2003. Accordingly, the only claim which

remains arises under Article I § 28 of the Pennsylvania Constitution. 

 Plaintiff had originally filed the instant action in the Court of Common Pleas of

Montgomery County on April 16, 2001. Defendants moved to dismiss the Plaintiff’s complaint

for failure to state a valid cause of action. Thereafter, Plaintiff filed two amended complaints

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which were similarly attacked by the Defendants for failure to state a claim upon which relief

could be granted. 

In an effort to circumvent a third adverse ruling by the Montgomery County Court of

Common Pleas, Plaintiff filed the instant action in Federal Court on July 3, 2002. Although

Plaintiff had alleged that she had been a citizen and resident of the Commonwealth of

Pennsylvania in her state action, she asserted that she was a resident and citizen of the State of

New Jersey in order to manufacture diversity of citizenship pursuant to 28 U.S.C. §1332, in order

to invoke federal court jurisdiction.

As will be demonstrated herein below, diversity jurisdiction does not exist. Therefore,

the case must be dismissed for lack of jurisdiction. Further, Plaintiff’s claim must be dismissed

for failure to state a valid cause of action. There exists no legal cause of action under the

Pennsylvania Equal Rights Act (“PERA”). Lastly, Defendants Aiken and Glantz cannot be held

individually liable. There is no private right of action against individuals under the PERA. 

Thusly, Defendants Aiken and Glantz are also entitled to Summary Judgment.

II. STANDARD OF REVIEW

FRCP 56(c) provides "the test [for granting summary judgment] is whether there is a

genuine issue of material fact, and if not, whether the [movant] is entitled to judgment as a matter

of law." Ambruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). A "material fact" is

defined as a fact that affects the outcome of the litigation based upon the applicable law. Kelly v.

Drexel Univ., 907 F.Supp 864, 870 (E.D. Pa. 1995). Where the factual record unequivocally

demonstrates that no material issue of fact exists and the non-moving party fails to sustain her

burden of proof, the trial court should grant summary judgment. When filing a motion for

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summary judgment, the movant bears, at all times, the primary burden of establishing the lack of

a material issue in dispute. In ruling upon a summary judgment motion, therefore, the court must

give all benefit of the doubt to the non-moving party, and "view inferences to be drawn from the

underlying facts in the light most favorable to the party opposing the motion." Bartnicki v.

Vopper, 200 F.3d 109, 114 (3d Cir.1999) aff'd, 532 U.S. 514 (2000).

III. LEGAL ARGUMENT

A. There is No Diversity of Citizenship Between the Parties, Thus This Court

Does not Have Jurisdiction

 On July 3, 2002, Plaintiff filed a complaint in the United States District Court for the

Eastern District of Pennsylvania based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. 

This case should be dismissed and remanded back to state court for adjudication because there is

no diversity of citizenship between the parties. Thusly, the Court lacks subject matter

jurisdiction. Plaintiff manufactured diversity in order to avoid the state court’s adverse ruling in

granting Defendants’ third preliminary objections to the state court complaint. The Plaintiff is

and was a citizen and resident of the Commonwealth of Pennsylvania. 

According to the well established law in this Circuit, two elements are necessary for a

citizen of the United States to change his or her domicile. First, an individual must take up

residence at the new domicile; and second, he or she must intend to remain there. Neither the

physical presence nor the intention to remain alone are sufficient. Krasnov v. Dinan, 465 F.2d

1298 (3d Cir. 1972) citing Wright, Federal Courts § 26, at 86 (2d ed. 1970). It is the citizenship

of the parties at the time the action commenced which is controlling. Id. citing Brough v.

Strathmann Supply Co., 358 F.2d 374 (3d Cir. 1966). See also Mollan v. Torrance, 22 U.S. (9

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Wheat.) 537, 6 L. Ed. 154 (1824); Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 7 L. Ed. 518

(1829)(the rule in actions commenced by Plaintiffs in federal court has been that the citizenship

of the parties at the time of commencement of the action determines whether the requisite

diversity exists). “In determining whether a party has intended to establish a domicile in the state

to which he has moved, the factfinder will look to such circumstances as his declarations,

exercise of political rights, payment of personal taxes, house of residence, and place of business.”

Krasnov at 1301, citing Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L. Ed. 584

(1874). 

In the instant case, as established in her deposition testimony, Plaintiff was a resident and

a citizen of the Commonwealth of Pennsylvania on July 3, 2002, the date this complaint was

filed. She was neither a resident nor a citizen of the state of New Jersey. Plaintiff owns two

homes, one in Hatboro, Pennsylvania at 2400 Karen Lane 19040 and another at 103 Beach

Avenue, Pierces Point, Cape May Courthouse, New Jersey. (Pl.’s Dep., p. 3 & 197). Plaintiff has

owned her place in New Jersey since on or about October of 1980. (Id., p. 234). During her

deposition, Plaintiff testified that on the date of said filing of her complaint, she lived at her

Pennsylvania residence but she would stay at the New Jersey residence during the week because

of work. (Pl.’s Dep., pg. 191). Thus, she never “took up residence in the new domicile”, as

required. Moreover, at the time of filing, her intention was to remain in Pennsylvania and keep

Pennsylvania as her domicile.

Specifically, during her deposition, the Plaintiff testified as follows: “I work (in New

Jersey) so I spent, you know, my days there. And we only come home on the weekends after

work on Friday and we leave either Sunday night or early Monday morning because I have to go

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back to work.” (Pl.’s Dep., pg. 191). Similarly, she later explained and testified, “Well, we live

in Cape May for all week and I come home to Pennsylvania on the weekends.” (Id., p. 195). 

Furthermore, referring to Pennsylvania, Plaintiff testified that, “. . .my roots are here. My

friends are here. My family is here.” (Pl.’s Dep. Pg 207). To further solidify her true domicile,

when asked point blank where she lives, Plaintiff testified, “I still live up here in Hatboro and I

live during the week at our shore home and come home on the weekends.”(Id., p. 138). 

Moreover, she testified that in 2002, she voted in Pennsylvania. (Id., p. 138). Furthermore, in

2002, Plaintiff testified that she still filed her tax returns in Pennsylvania. (Id. P. 138). As the

Krasnov Court indicates, exercise of political rights and payment of personal taxes are both

significant indicia of a party’s true intent.

The above factors demonstrate Plaintiff’s intent was to remain a resident of the

Commonwealth of Pennsylvania at the time this complaint was filed. The party invoking the

Court’s jurisdiction bears the burden of establishing that a new domicile has been acquired. 

Coggins v. Carpenter, 468 F. Supp. 270 (E.D. Pa. 1979). Moreover, in addition to demonstrating

that she is a resident of the diverse state, plaintiff must also express, “an intent to remain there for

the indefinite future”. Id. at 277. 

In Gaskin v. Mata Bhagwati Gayatri, Inc., 1987 U.S. Dist. LEXIS 5669 (E.D.Pa. 1987)

aff’d on appeal, 1988 U.S. App. LEXIS 10279 (3d. Cir. 1988), the plaintiff similarly attempted to

manufacture diversity jurisdiction by moving to the State of New Jersey. However, as the

plaintiff’s deposition testimony in that case established, her intent was not to stay in New Jersey. 

In dismissing the case for lack of subject matter jurisdiction, the Court explains, “what is

necessary to the establishment of a new domicile has, in short, been described as an ‘attitude of

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attachment’ to the new place of residence.” citing Avins v. Hannum, 497 F.Supp. 930, 937( E.D.

Pa. 1980).

In the instant case, plaintiff has failed to establish diversity of citizenship. Thusly, this

case must be dismissed for lack of subject matter jurisdiction.

B. Plaintiff Cannot Sustain a Cause of Action 

Under Article I § 28 of the Pennsylvania Constitution.

Plaintiff alleges a cause of action for “Violation of Plaintiff’s Rights Under Article I § 28

of the Pennsylvania Constitution.” However, there is no private right of action under Article I

§28 for damages against a private employer. Article I § 28 of the Pennsylvania Constitution,

commonly known as the Pennsylvania Equal Rights Amendment (“ERA”), provides as follows:

“Equality 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. I § 28 (emphasis added). 

When this Court visited this issue previously, it had been a case of first impression. If your

Honor recalls, Defendants attempted to appeal this issue as they felt very strongly that there

exists no private right of action. With the passage of time, two other learned jurists have opined

on this same issue. Defendants respectfully requests that this Court revisit the Defendants’

position in their Motion to Dismiss with respect to this issue. 

The Supreme Court of Pennsylvania has yet to rule on the issue of whether there is a

private right of action for damages under the state constitution ( regardless of the state action

issue), but the other federal courts in this Circuit that have considered the issue have concluded

that there is no such right under the Pennsylvania Constitution. Since this Court’s decision in

Barrett v. Greater Hatboro Chamber of Commerce, Inc., 2003 U.S. Dist. LEXIS 15498, Civ. A.

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1Douris v. Schweiker, 229 F. Supp.2d 391(E.D. Pa. 2002) (citing Kelleher v. City of Reading, No. 01-3386,

2001 U.S.Dist. LEXIS 14958, at *9-10 (E.D. Pa. Sept. 24, 2001) (citing Dooley v. City of Philadelphia 153

F.Supp.2d 628, 663 (E.D. Pa. 2001); Sabitini v. Reinstein, 1999 U.S. Dist. LEXIS 12820, No. 99-2393 (E.D. Pa.

Aug. 20, 1999); Hartford Acc. and Indem. Co. v. Insurance Com’r of Com., 505 Pa. 581, 482 A.2d 542 (1984),

Holder v. City of Allentown, No.91-240, 1994 U.S. Dis. LEXIS 7220 at *11 (E.D. Pa. May 19, 1994) (all holding

there is no private cause of action for damages under the PERA).

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No. 02-CV-4421 (E.D. Pa. Aug. 19, 2003), two more Courts in the Eastern District of

Pennsylvania have examined the issue of whether a private right of action for damages exists

under the Pennsylvania state constitution. In Ryan v. General Machine Products, 277 F. Supp.2d

585 (E.D. Pa. 2003) the Honorable Judge Baylson held that Plaintiff’s claims under the PERA

fail as a matter of law because there is no private cause of action for damages under the state

constitution. Thereafter, in EEOC v. Lepore & Sons Company et.al., 2004 U.S. Dist. LEXIS

4842, Civ. A. No. 03-CV-5462 (E.D. 2004) the Honorable Judge Davis agreed with Ryan’s

analysis and conclusion. These two decisions are consistent with numerous previous decisions in

this Circuit which have concluded that there is no such right under the Pennsylvania

Constitution.1 These decisions were rendered without regard to the issue of the existence or

absence of state action. In Barrett, your Honor cited the following cases in support of your

decision: Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2dd 779 (3d.Cir. 1990), Kemether v.

Pennsylvania Interscholastic Athletic Association Inc., 15 F.Supp.2d 740 (E.D. Pa. 1998),

Imboden v. Chowns Communications Inc., 182 F.Supp. 453 (E.D. Pa.2002). These cases all

specifically address the issue of whether a Plaintiff may state a claim under the PERA in the

absence of state action, not whether there is a private right of action for damages under the

PERA, which is the issue at bar in this case.

 Furthermore, the Pennsylvania Human Relations Act sets forth jurisdictional

requirements for a cause of action for sexual harassment and it is the exclusive remedy for such

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actions under Pennsylvania state law. The state legislature imposed a jurisdictional limitation on

any action brought pursuant to the Pennsylvania Human Relations Act, excluding employers with

less than four employees. In creating a new cause of action for sexual harassment, this Court

implicitly granted said employees legal rights and remedies which are far greater than those

provided under the Pennsylvania Human Relations Act. For example, under the Pennsylvania

Human Relations Act, there is no right to a jury trial, nor any right to recover punitive damages. 

The decision to create a new cause of action will allow all employees to by-pass the PHRA and

sue immediately in state court without exhausting administrative remedies and without said

restrictions above. Moreover, notably absent in the language of the PHRA is any reference to

the remedy in the Pennsylvania Constitution.

Based on the foregoing, Summary Judgment should be entered in favor of the

Defendants. 

C. Defendants Aiken and Glantz Cannot be held Individually Liable

Defendants John J. (Bud) Aiken and Mickey Glantz are entitled to summary judgement as

a matter of law. Under the PERA, there is no private right of action against an individual. 

Moreover, Defendants Aiken and Glantz were not employed by the Greater Hatboro Chamber of

Commerce.

Comparing the PERA with Title VII, Defendants note that Sheridan v. E.I. Dupont de

Nemours and Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996), is the clearly established Third Circuit

precedent which holds that there is no individual liability under Title VII. Although it is true that

the Circuits are split and that the United States Supreme Court has not ruled on this issue, it is

clear that binding precedent in this circuit precludes such a claim. 

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Furthermore, unlike Title VII, the Pennsylvania Human Relations Act (“PHRA”) does

have a clause for Aiding and Abetting liability. Thus, Summary judgment must be entered in

favor of the individual Defendants Aiken and Glantz.

IV. CONCLUSION

For all of the foregoing reasons, Defendants, the Greater Hatboro Chamber of Commerce,

Inc., John J. (Bud) Aiken, and Mickey Glantz, respectfully request this Honorable Court to grant

their Motion for Summary Judgment and dismiss Plaintiff’s Complaint with prejudice.

Respectfully submitted,

SIDNEY L. GOLD & ASSOCIATES, P.C.

/s/Sidney L. Gold, Esquire-SG1387 

SIDNEY L. GOLD, ESQUIRE

Identification No.: 21374

1835 Market Street, Suite 515

Philadelphia, PA 19103

(215) 569-1999

Attorneys for Defendants

January 10, 2005

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