J-S38045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MELISSA SULE IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ROBERT J. ECHENBERG M.D. - WOMEN'S 

HEALTH, PELVIC PAIN AND SEXUAL 

WELLNESS, P.C. AND ECHENBERG 

INSTITUTE FOR PELVIC AND SEXUAL 

PAIN, P.C. AND ROBERT J. ECHENBERG, 

M.D.

Appellee No. 3035 EDA 2015

Appeal from the Order Entered September 17, 2015

In the Court of Common Pleas of Lehigh County

Civil Division at No(s): 2014-C-3549

BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED AUGUST 22, 2016

Appellant Melissa Sule appeals from the order granting the summary 

judgment motion filed by Appellees Robert J. Echenberg, M.D. – Women’s 

Health, Pelvic Pain and Sexual Wellness, P.C. (“WHPPSW”), Echenberg 

Institute for Pelvic and Sexual Pain, P.C. (“Echenberg Institute”),1and

Robert J. Echenberg, M.D. We affirm.

____________________________________________

1 Echenberg Institute was formed as a Pennsylvania Corporation after Ms. 

Sule’s employment with WHPPSW ended. Answer and New Matter, 

3/13/2015, at ¶ 10. Ms. Sule alleged Dr. Echenberg transferred all business 

interests and assets of WHPPSW to Echenberg Institute and therefore 

Echenberg Institute was a successor in interest to WHPPSW. Complaint, 

filed 11/6/2014, at ¶ 14.
J-S38045-16

- 2 -

Ms. Sule was a medical receptionist and/or office administrator for 

WHPPSW. Complaint, filed 11/6/2014, at ¶¶ 20-22; Answer and New 

Matter, filed 3/13/2015, at ¶¶ 20-22. She alleges that in January of 2013, 

she was diagnosed with a medical condition that required her to take 

medical leave for surgery and recovery. Id. at ¶¶ 23-25. She alleges she 

informed Dr. Echenberg of the serious medical condition and required 

medical leave. Id. Ms. Sule maintains that she contacted WHPPSW and Dr. 

Echenberg on March 25, 2013 regarding the reasonable accommodations 

she would require when she returned to work. Id. at ¶ 28. She alleges 

WHPPSW and Dr. Echenberg terminated her employment at that time, 

claiming they no longer needed her. Id. at ¶ 29.

In June of 2013, Ms. Sule had contact with the Pennsylvania Human 

Relations Commission (“PHRC”), which resulted in an assigned claim number 

of 201204579. In a letter dated June 7, 2013, Sheldon N. Murray of the

PHRC enclosed a complaint and informed Ms. Sule of the following:

[F]or the Commission to proceed with its investigation, you 

must:

1. Review the complaint. If there are any errors in the 

facts as stated, cross through the errors, write in the 

corrections and put your initials beside the changes you 

have made.

2. Sign the two signature pages and return them with the 

Complaint within ten (10) working days of the letter.

If the complaint is not returned signed on or before June 

21, 2013, I will assume that you no [sic] longer interested 

in pursuing this matter, [then] your complaint will be 

submitted for suspension of processing.
J-S38045-16

- 3 -

However, if because of an emergency and/or reasons of 

hardship, you are unable to return the complaint on or 

before June 21, 2013, please contact me IMMEDIATELY, 

and appropriate and/or reasonable allowances will be 

made to return your complaint. If you have any questions, 

please contact me.

Defendant’s Motion for Summary Judgment Filed Pursuant to Rule 1035.2 of 

the Pennsylvania Rules of Civil Procedure, Exh. A (“June 7, 2013 Letter”). 

Ms. Sule did not return a signed complaint or contact the PHRC following 

receipt of this letter.

On August 5, 2013, Mr. Murray sent Ms. Sule another letter, which 

stated:

The complaint[] I sent out for your review on June 7, 2013 

has not been returned to me. If the complaint is not 

returned signed on or before August 19, 2013, I will 

assume that you’re no longer interested in pursuing this 

matter, [then] your complaint will be submitted for 

suspension of processing. However, if because of an 

emergency and/or reasons of hardship, you are unable to 

return the complaint on or before August 19, 2013, please 

contact me IMMEDIATELY, and appropriate and/or 

reasonable allowances will be made to return your 

complaint. If you have any questions, please contact me.

Plaintiff’s Reply to Defendant’s Motion for Summary Judgment, Exh. B 

(“August 5, 2013”). Ms. Sule also did not return a signed complaint or 

contact the PHRC following receipt of this letter.

On October 17, 2013, Ms. Sule filed a charge of discrimination with the 

Equal Employment Opportunity Commission (“EEOC”) asserting the same 

claims of disability-based discrimination as were previously asserted in her 

June 2013 PHRC claim. This EEOC charge was dually filed with the PHRC. 
J-S38045-16

- 4 -

On November 6, 2014, Ms. Sule filed a complaint in the court of 

common pleas alleging violations of the Pennsylvania Human Relations Act, 

43 P.S. § 952, et al., which, inter alia, prohibits discrimination based on a 

person’s disability. On July 15, 2015, Appellees filed a motion for summary 

judgment, alleging, inter alia, that Ms. Sule failed to file a timely complaint 

with the PHRC and therefore failed to exhaust her administrative remedies 

as required by the PHRA. Ms. Sule filed a response. On September 11, 

2015, the trial court conducted a hearing. On September 17, 2015, the trial 

court granted Appellees’ motion for summary judgment and dismissed 

Appellant’s complaint. On September 28, 2015, Ms. Sule filed a timely 

notice of appeal.

Ms. Sule raises the following issues on appeal:

Whether the [c]ourt of [c]ommon [p]leas erred in placing 

the burden of proving that Appellant’s PHRC [c]omplaint 

had not been dismissed by the PHRC before her EEOC 

[c]harge was filed, in light of the [c]ourt’s finding that 

Appellees had not met their initial burden to establish that 

Appellant’s PHRC [c]omplaint was never dismissed by the 

PHRC?

Whether the [c]ourt of [c]ommon [p]leas erred in holding 

that Appellant’s EEOC [c]harge filed with the EEOC did not 

relate back to the filing date of the timely filed PHRC 

[c]omplaint and therefore, did not cure the defective 

verification of the PHRC [c]omplaint?

Appellant’s Brief at 8. Ms. Sule’s issues are interrelated, and we will address 

them together.

“[S]ummary judgment is appropriate only in those cases where the 

record clearly demonstrates that there is no genuine issue of material fact 
J-S38045-16

- 5 -

and that the moving party is entitled to judgment as a matter of law.” 

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa.2010) (quoting 

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 

(Pa.2002)). A “trial court must take all facts of record and reasonable 

inferences therefrom in a light most favorable to the non-moving party” and 

“must resolve all doubts as to the existence of a genuine issue of material 

fact against the moving party.” Id. (citing Toy v. Metropolitan Life Ins. 

Co., 928 A.2d 186, 195 (Pa.2007)). Therefore, a trial court “may only grant

summary judgment ‘where the right to such judgment is clear and free from 

all doubt.’” Id. (quoting Toy, 928 A.2d at 195). This Court “may reverse a 

grant of summary judgment if there has been an error of law or an abuse of 

discretion.” Id. (quoting Weaver v. Lancaster Newspapers, Inc., 926 

A.2d 899, 902–03 (Pa.2007)). 

Ms. Sule alleged Appellees violated the PHRA. A person cannot file a 

cause of action alleging a violation of the PHRA in the court of common pleas 

unless he or she first exhausts his or her administrative remedies. 43 P.S. § 

962. If a complaint is filed with the PHRC or EEOC, but not resolved by the 

PHRC or the EEOC within one year of the filing of the complaint, the 

individual can file a complaint in the court of common pleas. 43 Pa.C.S. § 

962(c).

The PHRA provides:

(a) The complaint shall be filed [with the PHRC] within 180 

days from the occurrence of the alleged unlawful 

discriminatory practice, but the computation of the 180 
J-S38045-16

- 6 -

days does not include a period of time which is excludable 

as a result of waiver, estoppel or equitable tolling. If the 

alleged unlawful discriminatory practice is of a continuing 

nature, the date of the occurrence of the practice will be 

deemed to be any date subsequent to the occurrence of 

the practice up to and including the date upon which the 

unlawful discriminatory practice shall have ceased.

. . .

(c) A complaint will be deemed filed on the date received 

by the Commission.

(d) Complaints that are not verified or that do not 

otherwise fully conform with a requirement of a complaint 

before the Commission will be considered filed on the date 

received by the Commission but may be quashed, as 

justice may require, if the nonconformity is not remedied 

by amendment or otherwise within a reasonable time. Prior 

to the quashing of a complaint, the Commission will notify 

the complainant, in writing, and will provide an opportunity 

to explain why the complaint should not be quashed under 

this section.

16 Pa.Code § 42.14.

The trial court found:

Here, Appellant argues that she has satisfied the 

requirements of the PHRA by filing a [c]harge of 

[d]iscrimination with the EEOC that was jointly filed with 

the PHRC against WHPPSW and Dr. Echenberg on October 

17, 2013, and that more than one year has elapsed since 

the filing of the [c]harge with the EEOC. Appellees claim 

that Appellant has failed to exhaust her administrative 

remedies as the [c]harge of [d]iscrimination was filed 

outside of the statutorily mandated 180 day time limit 

from the date of the alleged discrimination and that she is 

thus, “barred from seeking judicial relief on each count of 

the [c]omplaint.” Appellant admits that October 17, 2013, 

was outside of the 180 days, but argues that the filing date 

of her [c]harge of [d]iscrimination should be considered to 
J-S38045-16

- 7 -

be June of 2013, when she filed an initial charge with the 

PHRC, but failed to verify and return the [c]omplaint 

mailed to her by the PHRC.[2] The PHRC initially gave 

Appellant’s Claim the Number of 201204579. The October 

17, 2013, filing received the EEOC Number of 

530201400603 and the PHRC Number of 201400574. It is 

unknown whether PHRC claim Number 201204579 was 

dismissed.

. . .

Appellant argues that her initial charge was filed with the 

PHRC in June of 2013, and that [] the October 17, 2013, 

filing was simply a revised charge that was filed to correct 

the defects of the initial charge, namely the lack of a 

verification attached to the [c]omplaint. In order to 

commence proceedings under the PHRA the complainant 

must file “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.” 16 Pa. Code 

§42.31 (emphasis added); see also Pa.C.S. § 959 (“Any 

person claiming to be aggrieved by an alleged unlawful 

discriminatory practice may make, sign and file with the 

Commission a verified complaint, in writing . . .”). Further, 

"[t]he filing of a Charge Questionnaire with the Equal 

Opportunity Commission was not sufficient to constitute 

the filing of a verified complaint with the Pennsylvania 

Human Relations Commission.” Standard Pa. Pract. 2d § 

166.869; Kellam v. Independence Charter Sch., 735 

F.Supp. 2d 248, 254-55 (E.D. Pa. 2010) . . . . Federal 

Courts have distinguished the filing date of the initial 

questionnaire which would then be incorporated into a 

formal complaint and the filing date of the formal verified 

____________________________________________

2

 “The complaint may be amended [at any time prior to the approval of a 

hearing on the merits] to cure technical defects or omissions, to clarify or 

amplify allegations made therein, or 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.” 1925(a) Opinion, at 11 (quoting 16 Pa.Code 43.35).
J-S38045-16

- 8 -

written complaint with the PHRC for purposes of the 

statute of limitations. Altopiedi v. Memorex Telex 

Corp., 834 F.Supp. 800, 806-07 (E.D.Pa.1993) (Permitting 

a Complaint filed on the 181st day after Plaintiff was fired 

when he had returned the questionnaire to the PHRC on 

the 178th day after he was fired and it was the 

bureaucratic delay of the PHRC which prevented him from 

filing on time.).[3]

Here, Appellant never signed and returned the written 

complaint regarding Case No. 201204579, mailed to her by 

Sheldon N. Murray, Human Relations Specialist, from the 

PHRC on June 7, 2013, in response to her initial interaction 

with the PHRC. Appellant failed to sign and return the 

written complaint regarding Case No. 201204579 even 

after receiving a second August 5, 2013, letter from 

Sheldon N. Murray. Thus, the PHRC had no complaint to 

enter on its official docket, no complaint to serve on the 

respondents, and no authority to begin its investigation 

into Appellant’s claims. 16 P[.S.] §959. Without an 

originally filed [c]omplaint, Appellant has nothing for her 

October 17, 2013, filing to amend. 16 Pa. Code § 

42.35(b)(“original filing date of the complaint.”).

Generally, if “the facts alleged by a plaintiff claiming 

discrimination should reasonably have led the agency to 

investigate a claim, he must not lose his day in court 

because he stubs his toe on a procedural doorstep.” 

Bailey [v. Storlazzi], 729 A.2d [1206,] 1217 

[(Pa.Super.1999)]. Indeed, “under the principles of 

‘equitable tolling,’ a claim filed beyond the 180-day time 

limit may be permitted where the defendant 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 right in a 

timely fashion, but in the wrong forum.” Uber v. Slippery 

Rock Univ. of Pa., 887 A.2d 362, 366 (Pa.Cmwlth.2005). 

____________________________________________

3 Decisions from the federal courts, other than the United States Supreme 

Court, are not binding on this Court, but may be considered persuasive 

authority. Stone Crushed Partnership v. Kassab Archbold Jackson & 

O’Brien, 908 A.2d 875, 883 n.10 (Pa.2006).
J-S38045-16

- 9 -

However, “[c]ourts generally disfavor equitable tolling 

where the plaintiff missed the deadline because of a lack of 

due diligence.” Altopiedi, 834 F. Supp. at 806, relying on 

Irwin v. Veterans Affairs, 498 U.S. 89, 96 (1990). 

Here, Appellant has not alleged any of the foregoing 

exceptions. Instead, Appellant demonstrated a lack of due 

diligence by twice ignoring the requests for her signature 

on the [c]omplaint generated by the PHRC in response to 

her initial charge. Appellant’s failure to file a written 

verified complaint with the PHRC was not the result of 

bureaucratic delay inside the PHRC in generating the 

[c]omplaint, but rather was “the result of unexcusable 

neglect” on the part of Appellant. Altopiedi, 834 F. Supp. 

at 806. Without a properly verified complaint, the PHRC 

could proceed no further with investigation or serving the 

complaint on the appellees. 43 Pa.C.S.[] §959. Thus, the 

[c]ourt granted [s]ummary [j]udgment favor of the 

Appellees as the October 17, 2013, [c]harge of 

[d]iscrimination with the EEOC was filed outside the 180 

day[] statute of limitations for the PHRA claims. 

Appellant’s claims are time-barred and the [c]ourt has no 

jurisdiction because Appellant failed to exhaust her 

administrative remedies.

Opinion, filed 12/10/2015, at 9-13 (“1925(a) Opinion”) (internal citations to 

record omitted) (emphasis in original).4

The trial court did not abuse its discretion or commit an error of law. 

Ms. Sule did not file a complaint with the PHRC, and did not respond to two 

requests from the PHRC to do so. Without such a complaint, the PHRC could 

____________________________________________

4 Ms. Sule maintains the trial court placed the burden of demonstrating the 

original filing had been dismissed on her, which, she argues, was error. 

Appellant’s Brief at 15-16. The trial court, however, found Ms. Sule failed to 

file a complaint with the PHRC prior to the October 17, 2013 dual filing. 

1925(a) Opinion at 14. The disposition of the PHRC case number assigned 

in June, and any burden associated therewith, is irrelevant. Id. at 14.
J-S38045-16

- 10 -

not investigate the matter or serve Appellees with the allegations, and there 

was no prior filing with the PHRC to which the EEOC complaint could relate 

back.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/22/2016