J-S31044-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
GARY SPATAFORE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : SUGARHOUSE HSP GAMING, L.P. : No. 237 EDA 2025
Appeal from the Order Entered December 23, 2024 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 23002031
BEFORE: PANELLA, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 23, 2026
Appellant Gary Spatafore appeals from the order granting summary
judgment in favor of Appellee Sugarhouse HSP Gaming, L.P., and dismissing
Appellant’s employment-based disability discrimination and retaliation claims.
We affirm in part, vacate in part, and remand for further proceedings.
The trial court summarized the relevant facts of this case as follows:
On or about October 5, 2018, Appellant suffered a heart attack while employed [by Appellee] as a facilities shift manager. Appellant alleges that over the next several years he was denied a promotion [to the position of facilities manager] because of his heart attack; did not receive an accommodation for his alleged condition in a timely manner; and experienced retaliation by Appellee for filing two . . . actions with the Pennsylvania Human Relations Commission [(PHRC), as well as two related Equal J-S31044-25
Employment Opportunity Commission (EEOC) actions,] against Appellee prior to commencing this lawsuit. [1]
Trial Ct. Op., 3/17/25, at 1-2 (some formatted altered).
Appellant raised five counts in his complaint: (1) age discrimination:
failure to promote; (2) disability discrimination: failure to promote; (3) age
discrimination: unequal pay; (4) disability discrimination: failure to provide
accommodation; and (5) retaliation. See Compl., 8/17/23, at 4-8.
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1 We note that the Pennsylvania Human Relations Act (PHRA) provides that
“any complaint filed pursuant to this section must be so filed within [180] days after the alleged act of discrimination[.]” 43 P.S. § 959(h). Further,
[i]n cases involving a claim of discrimination, if a complainant invokes the procedures set forth in this act, that individual's right of action in the courts of the Commonwealth shall not be foreclosed. If within one (1) year after the filing of a complaint with the [PHRC], the [PHRRC] dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the [PHRC] must so notify the complainant. On receipt of such a notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this act.
43 P.S. § 962(c)(1).
Here, the record reflects that Appellant filed a complaint with the PHRC on September 27, 2019, amended June 2, 2020 and April 26, 2021, alleging that Appellee discriminated against Appellant “on or about April 9, 2019” by hiring a candidate who had “no history of cardiac complications” for the facilities manager position that Appellant had applied for. Appellee’s Mot. for Summ. J., 10/7/24, Exs. Q, R, and S. The PHRC dismissed Appellant’s PHRA complaint by letter dated August 19, 2021. See id. at Ex. T. It therefore appears that Appellant filed a timely complaint of discrimination with the PHRC and that PHRC’s dismissal of that complaint established the conditions for Appellant to bring the instant complaint before the trial court. See 43 P.S. §§ 959(h) and 962(c)(1).
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With respect to the disability discrimination: failure to promote claim,
Appellant alleged that his “protected class is disability, his status of having
experienced a heart attack[]” and “he was fully able to carry out the job
duties” of both his position as facilities shift manager and the open position of
facilities manager. Id. at 5. He further alleged that on or about January 19,
2019, Appellee’s director of facilities and Appellant’s supervisor, Seung Kim,
stated to Appellant “that since [Appellant] had experienced a heart attack,
[Mr. Kim] did not feel [Appellant] would be up to the duties of the new
position.” Id. at 4. Appellant alleged that Appellee subsequently hired
Thomas Ambrose, an external candidate, for the facilities manager position,
and that Mr. Ambrose “had no history or cardiac complications or illnesses.”
Id. at 4.
On September 18, 2023, Appellee removed the matter to federal district
court. See Notice of Removal, 9/18/23. On June 11, 2024, the district court
for the Eastern District of Pennsylvania granted summary judgment to
Appellee on Appellant’s two claims of age discrimination and remanded the
remaining claims to the trial court. See Order, 23-CV-03611, 6/11/24. On
July 1, 2024, the trial court set a discovery deadline for September 3, 2024.
See Trial Ct. Order, 7/1/24. On October 2, 2024, the parties stipulated to the
dismissal with prejudice of the claims disposed of by the district court. See
Stipulation, 10/2/24. On October 7, 2024, Appellee moved for summary
judgment and dismissal of all remaining claims. See Appellee’s Mot. for
Summ. J., 10/7/24.
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In the motion for summary judgment, Appellee attached exhibits which
included excerpts from the depositions of Mr. Kim and Appellant, as well as
Mr. Ambrose’s resume. See id., Ex. F, H, L. In his deposition, Mr. Kim
testified that, in comparing the resumes of Appellant and Mr. Ambrose for the
facilities manager position, “I needed somebody that could do heavy lifting in
the facilities. I had confidence with Tom Ambrose[.]” Id., Ex. F, at 107. The
excerpts of Mr. Kim’s deposition do not contain any testimony about whether
Mr. Kim stated that Appellant might not be qualified for the promotion he
sought due to his heart attack.
Appellant testified in his deposition that when he returned to work after
his heart attack that he could “perform[ his] job without any special
accommodations[]” and that, since November of 2018 through to the date of
his deposition, there had been “no change in [his] ability to perform any life
activities[,]” including lifting and driving. Id., Ex. H, at 29, 33. Appellant
testified that Mr. Kim interviewed him for the facilities manager position, and
subsequent to the interview Mr. Kim told Appellant: “[Y]ou’re too sick, it’s too
much stress, you don’t want something like that, those types of statements.”
Id., Ex. H, at 61, 63. Appellant also testified that on several occasions, Mr.
Kim made comments “about [Appellant’s] heart attack” or indicating that
Appellant was “too sick[]” such as “‘[d]on’t lift too much,’” but Mr. Kim did not
make similar remarks to other employees. Id. at 65-66. Appellant also
testified that he was qualified for the open position and more qualified than
Mr. Ambrose. See id. at 68.
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On December 23, 2024, the trial court granted Appellee’s motion for
summary judgment on the remaining disability discrimination and retaliation
claims. See Trial Ct. Order, 12/23/24. On December 27, 2024, Appellant
filed a motion for reconsideration on the basis that Appellant’s counsel had
attempted to timely e-file a response to Appellee’s motion for summary
judgment but the filing was unsuccessful due to “a computer error or mistake
that was inadvertent.” See Appellant’s Mot. for Recons., 12/27/24, at 2
(unpaginated). Appellant provided the trial court with a memorandum and
exhibits responding to Appellee’s summary judgment motion as exhibits to
the motion to reconsider, urging the trial court to “review the grant of
summary judgment with full consideration of [Appellant’s] opposition[.]” Id.
at 2-3 (unpaginated).
On January 21, 2025, the trial court entered an order denying
Appellant’s motion for reconsideration. See Trial Ct. Order, 1/21/25.
Appellant filed a timely notice of appeal from the order granting summary
judgment. Both Appellant the trial court complied with Pa.R.A.P. 1925. 2 ____________________________________________
2 In the first claim in his Rule 1925(b) statement, Appellant claimed that the
record established that Appellee’s decision not to promote Appellant was “due to [a] perceived disability attributable to [Appellant] having had a heart attack, showed the existence of a question of material fact.” Appellant’s Rule 1925(b) statement, 2/18/25, at 1 (unpaginated). Therein, Appellant did not address his causes of action for failure to provide an accommodation for Appellant’s disability and retaliation in Rule 1925(b) statement. Therefore, any issues related to those causes of action are waived on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived”).
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On appeal, Appellant raises the following issue: “Did the trial court err
in granting [Appellee’s] motion for summary judgment in light of a genuine
issue of fact?” Appellant’s Brief at 2. 3
Appellant argues that the trial court erred in concluding that the
complaint did not “provide adequate notice” to Appellee for the claim of
“perceived disability.” Id. at 7 (citing Trial Ct. Op., 3/17/25 at 4-5). Appellant
acknowledges that complaints in Pennsylvania must “‘give the defendant
notice of what the plaintiff’s claim is and the grounds upon which it rests, [as
well as] formulate the issues by summarizing those facts essential to support
the claim.’” Id. at 10-11 (citing Feingold v. Hendrzak, 15 A.3d 937, 942
(Pa. Super. 2011)). Appellant contends that his complaint met this threshold
requirement as it “described the manner in which [Appellant] was perceived
as disabled despite his performance being unaffected by his cardiac condition,
and how that perception drove [Appellee’s] decision not to promote him.” Id.
at 7-8. Specifically, Appellant argues that his complaint set forth “the facts
necessary to establish a prima facie case” to state a cause of action for
disability discrimination under the PHRA4 because he alleged that his prior ____________________________________________
3 In his appellate brief, Appellant does not reference the other two claims raised in his Rule 1925(b) statement, which addressed the denial of his motion for reconsideration. See Appellant’s Rule 1925(b) Statement, 2/18/25. Therefore, he has waived these claims on appeal and we need only review his failure to promote disability claim. See Pa.R.A.P. 2116(a), 2119(a); see also Commonwealth v. McGill, 832 A.2d 1014, 1018 n.6 (Pa. 2003) (finding waiver where the appellant abandoned claim on appeal); see also Resp. to Rule to Show Cause, 3/27/25, at 2. 4 43 P.S. §§ 951-963.
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heart attack was a disability, he sought a promotion to the position of facilities
manager, he was qualified for this position, and that Mr. Kim, who was
Appellant’s supervisor, told Appellant that he was too sick for the promotion
as a result of his heart attack. Id. at 12-13.
Appellant notes that the PHRA defines ‘disability’ in part as “‘being
regarded as having an impairment. . . ’ excluding the use of illicit drugs.” Id.
at 9-10 (quoting 43 P.S. § 954(p.1)(3)). Consistent with the statutory
definition, Appellant argues that his complaint “unambiguously explained that
the ‘disability’ was one that was perceived as opposed to actual” and,
therefore, “the trial court erred in failing to deem the allegations of the
complaint sufficient[]” to state a claim of discrimination. Id. at 9-10, 13.
Next, Appellant contends that Mr. Kim’s statement was “direct evidence
of discrimination” and, “where [a] plaintiff ‘shows by direct evidence that an
illegitimate criterion was a substantial factor in the decision [at issue],’” the
evidentiary burden-shifting framework set forth by the United States Supreme
Court in Price Waterhouse v. Hopkins, 490 U.S. 2285, 276 (1989)
(O’Connor, J. concurring) applies. Id. at 13 (citing Qin v. Vertex, Inc., 100
F.4th 458 (3rd Cir. 2024)5); see also Appellant’s Reply Brief at 6. ____________________________________________
5 We note that Appellant cited this authority as “Qing Qin v. Veritext, No 23-
1031 (3d. Cir. May 2, 2024),” misciting the caption and failing to provide the reporter citation and, further, pinpoint cited to page number 20, whereas the page numbers of the opinion as reported start at 458. See Appellant’s Brief at ii, 13, 14. It appears that Appellant here cited to the opinion as issued by the Third Circuit Court of Appeals. Rule 126(a) of appellate procedure provides that when a party cites “authority that is not readily available” that party “shall attach the authority as an appendix to its filing.” Pa.R.A.P. 126(a).
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Lastly, Appellant argues, to the extent he is required to prove that
Appellee’s “claim that there were legitimate, non-discriminatory reasons for
failing to promote him in 2019 were pretextual[,]” that “there was ample
circumstantial evidence before the trial court to support the pretext prong” of
an employment discrimination claim. Appellant’s Brief at 16-17. Appellant
further contends “that to survive summary judgment in the pretext stage,”
after a defendant has put forth a legitimate, non-discriminatory reason for its
alleged discriminatory conduct, a plaintiff need only “point to some evidence
from which a factfinder could reasonably either (1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe that an invidious discriminatory
reason was more likely than not a motivating or determinative cause of the
employer’s action.” Appellant’s Reply Brief at 8 (citing Kroptavich v.
Pennsylvania Power and Light Co., 795 A.2d 1048, 1059 (Pa. Super.
2002)).
Appellee argues that the “plain language” of Appellant’s complaint set
forth “an actual disability discrimination claim and not a ‘regarded as’ disability
discrimination claim.” Appellee’s Brief at 13. Appellee contends that, even if
Appellant pled “a ‘regarded as’ disability discrimination claim, Appellee was
still entitled to summary judgment because Appellant failed to establish that
Appellee’s reason for not promoting him – [i.e., Appellant] was not the most
qualified candidate – was pretextual for discrimination.” Id. at 14. Appellee
claims that Appellant “offered no evidence to show that [Mr. Kim’s] comment
was related to the hiring decision for the manager position” and, therefore,
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could not “establish that a discriminatory attitude was more likely than not
the motivating factor in Appellee’s decision to hire Mr. Ambrose and not
promote Appellant.” Id. at 18.
In reviewing a grant of summary judgment,
[o]ur standard of review is de novo and our scope of review is plenary. Summary judgment is appropriate where there is no genuine issue of material fact as to a necessary element of a cause of action that can be established by discovery or expert report. Pa.R.C.P. No. 1035.2(1). In reviewing an order granting a motion for summary judgment, an appellate court must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party.
Liberty Mut. Grp., Inc. v. 700 Pharmacy, LLC, 270 A.3d 537, 547-48 (Pa.
Super. 2022) (some citations omitted and formatting altered).
Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law.
Finder v. Crawford, 167 A.3d 40, 44 (Pa. Super. 2017) (citation omitted).
Further, our Supreme Court has held:
The moving party has the burden to demonstrate the absence of any issue of material fact, and the trial court must evaluate all the facts and make reasonable inferences in a light most favorable to the non-moving party. [Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)]. The trial court is further required to resolve any doubts as to the existence of a genuine issue of material fact against the moving party and may grant summary judgment only where the right to such a judgment is clear and free from doubt. . . . An appellate court may reverse a grant of summary judgment only if the trial court erred in its application of the law or abused its discretion. Id. at 1159.
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Bourgeois v. Snow Time, Inc., 242 A.3d 637, 650 (Pa. 2020) (some
citations omitted and some formatting altered); see also Fine v. Checcio,
870 A.2d 850, 862 (Pa. 2005) (emphasizing that “it is not the court’s function
upon summary judgment to decide issues of fact, but only to decide whether
there is an issue of fact to be tried” (citation omitted)).
The PHRA defines “handicap or disability” in relevant part as:
(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities;
(2) a record of having such an impairment; or
(3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance, . . . .
43 P.S. § 954(p.1).
This Court has explained:
Generally, claims brought under the PHRA are analyzed under the same standards as their federal counterparts. Therefore, though not binding on our state courts, federal court interpretations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., serve to inform this Court’s interpretations of the PHRA. Fairfield Township Volunteer Fire Co. v. Commonwealth, 609 A.2d 804 (Pa. 1992).
Established for Title VII cases, where, . . . direct evidence of discriminatory treatment is lacking, is “an allocation of the burden of production and an order for the presentation of proof” according to which a court may assess a plaintiff’s indirect evidence of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This Title VII burden-shifting framework as developed in McDonnell Douglas is a three-part one. First, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. The burden on the plaintiff of presenting a prima facie case under McDonnell Douglas is “minimal.” James v. New York Racing Ass’n, 233 F.3d 149, 153 (2d Cir.2000). If
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the plaintiff cannot meet this minimal burden, the employer is entitled to judgment as a matter of law.
If the plaintiff does establish a prima facie case, a presumption of discrimination arises, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment decision. The employer’s burden in this second part is one of production, not persuasion, and thus involves no credibility assessment. If the employer articulates a legitimate business explanation, “then the presumption of discriminatory intent created by the employee’s prima facie case is rebutted and the presumption simply ‘drops out of the picture.’” Seman v. Coplay Cement Co., 26 F.3d 428, 432 (3d Cir.1994) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).
If the employer satisfies its burden of production, the third and final part of the McDonnell Douglas framework gives the plaintiff the opportunity to show that the legitimate reasons proffered by the employer were pretexts for what, in reality, was a discriminatory motivation. In the pretext discrimination case, “the employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994).
Kroptavich, 795 A.2d at 1055 (some citations omitted).
Here, the trial court granted Appellee’s motion for summary judgment
on the failure to promote disability claim because it concluded that Appellant
had failed to plead that he had an actual disability; failed to sufficiently set
forth a claim that he was discriminated against because Appellee “regarded
[him] as disabled”; and found that, even if Appellant had adequately set forth
a ‘regarded as disabled’ claim, a reasonable jury could not conclude that
Appellee’s justification for hiring Mr. Ambrose instead of promoting Appellant
was a pretext for discrimination. See Trial Ct. Op., 3/17/25, at 4-6.
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After review, we are constrained to disagree with the trial court’s
conclusion. Viewing the record in the light most favorable to Appellant as the
non-moving party, it is clear that Appellant pled and testified to the fact that
his supervisor stated that Appellant was too sick for the promotion he sought;
further, Mr. Kim told Appellant that he should not do heavy lifting, but did not
instruct other employees to avoid heavy lifting. Appellee’s Mot. for Summ. J.,
10/7/24, Ex. H, at 61, 63, 65-66. Furthermore, the same supervisor
interviewed Appellant for the open position. See Compl., 8/17/23, 2, 4-5;
Appellee’s Mot. for Summ. J., 10/7/24, Ex. F, at 107; Ex. H, at 29, 33. As
stated above, for the purposes of the PHRA, a ‘disability’ includes not only an
actual disability but also when individuals are “regarded as having such an
impairment[.]” See 43 P.S. § 954(p.1)(1), (3). Therefore, as a matter of
law pursuant to our de novo review, we conclude on this record that Appellant
pled sufficient facts before the trial court to support his claim of failure to
promote due to disability discrimination to avoid summary judgment for
Appellee. See id.; see also Liberty Mut. Grp., Inc., 270 A.3d at 547-48;
Finder, 167 A.3d at 44; Bourgeois, 242 A.3d at 650.6 Accordingly, we
conclude that Appellant may further litigate his claim. We do not, however, ____________________________________________
6 We note that the trial court treated “Appellant’s argument that he was ‘regarded as disabled’ [as] untimely raised . . .[in his] response to Appellee’s motion for summary judgment[.]” Trial Ct. Op., 3/17/25, at 4-5 (some formatting altered). We disagree. The record reflects that both the complaint and Appellant’s deposition testimony allege that Appellee regarded Appellant as disabled; accordingly, Appellant raised the claim before Appellee motioned for summary judgment. See Compl., 8/17/23, at 4; Appellee’s Mot. for Summ. J., 10/7/24, Ex. F, at 107; Ex. H, at 63, 65-66.
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address the merits of the claim, a task ultimately reserved for the jury as fact-
finder.
Additionally, the trial court determined that Appellee was entitled to
summary judgment because a reasonable jury could not conclude that
Appellee’s proffered reason for hiring Mr. Ambrose instead of promoting
Appellant was a pretext for illegal discrimination. See Trial Ct. Op., 3/17/25,
at 5-6.
Based on our review of the record, we are again constrained to disagree
with the trial court. As stated above, Appellee asserted that its decision to
hire Mr. Ambrose instead of promoting Appellant was that Mr. Ambrose was
more qualified than Appellant for the open position. Id. at 5. However,
Appellant alleged and testified that he was qualified for the promotion. See
Compl., 8/17/23, at 2; Appellee’s Mot. for Summ. J., 10/7/24, Ex. H, at 68.
On this record, we conclude that the facts established in the deposition
testimony from Appellant and Mr. Kim could allow a jury to find that
Appellant’s perceived disability due to cardiac illness played a role in Appellee’s
decision not to promote Appellant because Mr. Kim expressed concerns about
Appellant’s ability to do heavy lifting and that he had more confidence in the
other candidate’s ability to “do heavy lifting in the facilities.” See Appellee’s
Mot. for Summ. J., 10/7/24, Ex. F, at 107; Ex. H, at 61, 63, 65-66, 68. As
noted, Appellant alleged that Mr. Ambrose, the successful candidate, “had no
history of cardiac complications or illnesses.” Compl., 8/17/23, at 4.
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As a matter of law this Court is unable to conclude that a reasonable
jury could not find that Appellee’s justification for its hiring decision was a
pretext for illegal discrimination. See Kroptavich, 795 A.2d at 1055; see
also Liberty Mut. Grp., Inc., 270 A.3d at 547-48; Finder, 167 A.3d at 44;
Bourgeois, 242 A.3d at 650; Fine, 870 A.2d at 862. Viewing the record in
the light most favorable to Appellant as the non-moving party, we find that
Appellant has presented sufficient evidence to establish genuine issues of
material fact concerning the failure to promote disability claim and, therefore,
the trial court erred in granting Appellee’s motion for summary judgment on
that issue.7 See Liberty Mut. Grp., Inc., 270 A.3d at 547-48; Bourgeois,
242 A.3d at 650.
Accordingly, we vacate the part of the trial court’s order granting
summary judgment in favor of Appellee and dismissing Appellant’s claim for
failure to promote on the basis of disability. We affirm the trial court’s order
granting summary judgment in favor of Appellee on all of Appellant’s other
claims.
Order affirmed in part and vacated in part. Case remanded for further
proceedings consistent with this memorandum upon remittal of the record.
Jurisdiction relinquished. ____________________________________________
7 As noted above, Appellant did not preserve any issues related to the trial
court’s order granting summary judgment in favor of Appellee on Appellant’s claims of failure to provide an accommodation for his disability and retaliation in his Rule 1925(b) statement. Therefore, those claims are waived and we affirm the trial court’s order with respect to those claims.
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Date: 1/23/2026
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