Harmony Volunteer Fire Co. v. Commonwealth

459 A.2d 439, 73 Pa. Commw. 596, 1983 Pa. Commw. LEXIS 1557
CourtCommonwealth Court of Pennsylvania
DecidedApril 26, 1983
DocketAppeal, No. 1979 C.D. 1981
StatusPublished
Cited by35 cases

This text of 459 A.2d 439 (Harmony Volunteer Fire Co. v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harmony Volunteer Fire Co. v. Commonwealth, 459 A.2d 439, 73 Pa. Commw. 596, 1983 Pa. Commw. LEXIS 1557 (Pa. Ct. App. 1983).

Opinion

Opinion by

Judge Craig,

The Harmony Volunteer Fire Company and Relief Association (fire company) appeals from a decision and order of the Pennsylvania Human Rela[598]*598tions Commission, which, found that the fire company had violated the Pennsylvania Human Relations Act, Act of October 27,1955, P.L. 744, as amended, 43 P.S. §§951-962.2 (act). After a public hearing, the hearing commissioners concluded that the fire company had rejected the membership application of Pamela White because of her sex, a violation of §5(a) of the Act, 43 P.S. §955 (a).1 The commission also concluded that the fire company had violated §5(d) of the Act, 43 P.S. §955(d),2 by retaliating against Frederich H. White, a fire company member and Pamela White’s father, because of his assistance and support of the complaint she had filed before the commission. The commission adopted the recommendations and conclusions of the hearing commissioners.3

The fire company contends here that the commission did not have subject matter jurisdiction because the fire company is not an employer under the act. [599]*599The company also argnes that the record does not contain substantial evidence to support the commission’s decision.

We must affirm an adjudication of an administrative agency unless the agency violated constitutional rights, made findings of fact not supported by substantial evidence or committed an error of law.4 Following that standard, we must reject the fire company’s contentions and affirm the order of the commission.

1. Factual Background

The fire company is a nonprofit corporation which voluntarily provides fire protection and emergency ambulance and rescue services for the Borough of Harmony, Pennsylvania. When Pamela White applied for membership, the constitution of the fire company, which provided the criteria for eligibility, required that firefighters be: (1) male, (2) eighteen or older, and (3) a resident of the territory which the company served.5

In order to become a member, an interested person obtained an application from a member, completed the form and returned it to the company. An investigating committee of three members interviewed the applicant, and, if they approved him, signed the application and returned it to an officer. When the committee members knew the applicant well it was not unusual for them to forego the interview and merely sign the application.

At the next monthly meeting of the company, a member presented the completed application to those [600]*600assembled. The company took no further action until the following month, when those present voted secretly on whether to accept the applicant as a member. The rejection rate of the company was extremely low. However, at the time of Pamela White’s application, no woman had ever become a member of the fire company.

Pamela White, an adult female resident of the Borough of Harmony, applied for membership in the fire company in January of 1979, by completing an application form and delivering it to her father, Prederich H. White, a member of the fire company. At that time Pamela White was certified as an Emergency Medical Technician.

At its February meeting, the fire company voted to reject Pamela White’s application, and she filed a complaint with the commission on March 16, 1979, alleging a violation of the Human Relations Act. In April, Tim Sapienza, the fire chief, ordered the emergency fire phone removed from Prederich White’s residence. The following month Prederich White attended a commission conference on his daughter’s complaint, and at the May meeting he resigned from the fire company in order to avoid expulsion. Prederich White then filed a second complaint with the Human Relations Commission.

2. Jurisdiction

The subject matter jurisdiction issue was the primary focus of both the briefs and the arguments before this court. The act provides, in relevant part:

The term “employer” includes the Commonwealth or any political subdivision . . . thereof and any person employing four or more persons within the Commonwealth. . . . The term “employer” with respect to discriminatory prac[601]*601tices based on . . . sex . . . includes, religious, fraternal, charitable and sectarian corporations and associations employing four or more persons. .. ,6

The act does not define employment; therefore, we rely, as did the commission, upon common law concepts as to master-servant status.

In a 1906 case, our Supreme Court discussed the standard which is still in effect. “ ‘The relation of master and servant exists where the employer has the right to select the employee, the power to remove and discharge him, and the right to direct both what work shall be done, and the way and manner in which it shall be done.’ ”7 The employer’s power to control the nature and the parameters of the employee’s activities is the key to the relationship. Although the duty to pay a salary is often coincident with the status of employer, it is not an absolute prerequisite.8

The fire company, through its membership process, selects its own firefighters. It has the power to discharge them for non-performance of their duties, and it directs both the work they do and the manner in which they perform that work. The company also provides a good measure of training for its firefighters in such relevant fields as first aid, emergency medical procedures and firefighting techniques.

[602]*602The commission concluded, and we agree, that, in view of the extensive control which the fire company exercises over its members, it is an employer for purposes of the Human Relations Act.

Both the nature of the work which the fire company performs and the pervasiveness of governmental involvement in the company’s activities reinforce our conclusion.

In its argument that fire protection is not a traditional governmental function, the fire company relies heavily upon the district court’s discussion of the state action issue in Janusaitis v. Middlebury Volunteer Fire Department, 464 F. Supp. 288 (D. Conn. 1979). Although many of the considerations involved in the present case are also a part of a state action determination, the company’s presentation of that ease in its brief is inaccurate, and its reliance upon it is misplaced. The district court indeed refused to hold that the volunteer fire company in that case was involved in state action, but the court of appeals went to some length to explain its rejection of the district court’s position. That court specifically stated “ [f]ire protection is a function public or governmental in nature . . . which would have to be performed by the Government but for the activities of volunteer fire departments.”9

We concur with that statement and with the position of the commission that the fire company’s primary function, the provision of fire and emergency services, is governmental in nature.

Numerous legislative enactments further interweave the functioning of the government and the fire [603]*603company.

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Bluebook (online)
459 A.2d 439, 73 Pa. Commw. 596, 1983 Pa. Commw. LEXIS 1557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harmony-volunteer-fire-co-v-commonwealth-pacommwct-1983.