Commonwealth of Pennsylvania v. Brown

Decision Date28 February 1967
Docket NumberNo. 16256.,16256.
Citation373 F.2d 771
PartiesCOMMONWEALTH OF PENNSYLVANIA, Attorney General of the Commonwealth of Pennsylvania, City of Philadelphia and Alan Levi Bond, by His Mother, Mrs. Ruby Bond, Charles William Hicks and Theodore Lewis Hicks, by Their Mother, Mrs. Marie Hicks, James Scruggs and Henry Scruggs, by Their Mother, Mrs. Ardella Scruggs, Tyrone Karl White and Terry Sherwood White, by Their Mother, Mrs. Charlotte L. White, on Behalf of Themselves and All Others Similarly Situated v. Revelle W. BROWN et al., Trustees of the Estate of Stephen Girard, Appellants.
CourtU.S. Court of Appeals — Third Circuit

Ernest R. von Starck, Philadelphia, Pa. (Gaffney & Gaffney, Philadelphia, Pa., Morgan, Lewis & Bockius, Philadelphia, Pa., Arthur Littleton, John Russell, Jr., Richard P. Brown, Jr., Philadelphia, Pa., on the brief), for appellants.

Charles J. Biddle, Jr., Philadelphia, Pa., continuing William T. Coleman, Jr., Philadelphia, Pa. (Drinker, Biddle & Reath, J. Alan Kugle, Henry S. Hilles, Jr., Dilworth, Paxson, Kalish, Kohn & Levy, Robert W. Maris, Philadelphia, Pa., on the brief), for appellees.

Before STALEY, Chief Judge, and McLAUGHLIN, KALODNER, SMITH and SEITZ, Circuit Judges.

KALODNER, Circuit Judge.

The defendants, Trustees of the Estate of Stephen Girard,1 refused to admit the seven minor plaintiffs, Negro male orphans, to Girard College, a charitable educational establishment created under the Will of Stephen Girard, on the sole ground that Girard's Will expressly restricts admission to the College to "poor male white" orphans.

The guardians of the minor plaintiffs, the Commonwealth of Pennsylvania and its Attorney General, and the City of Philadelphia, filed a complaint in the District Court praying for an injunction restraining the defendants from denying the minor plaintiffs, and others similarly situated, admission to the College simply because they are Negroes.

The complaint consists of three counts. Count I charges in sum that Girard College "is so impressed with state involvement and state action" that its acts must be imputed to the state itself, and thus the denial of admission to the College on racial grounds violates the Fourteenth Amendment; Count II seeks application by the District Court of the cy pres doctrine to benefit all poor male orphans, irrespective of race or color, in accordance with Girard's alleged testamentary intent to benefit the City of Philadelphia and its citizens; Count III alleges that denial of admission to the seven minor plaintiffs solely because they are Negroes violates the Pennsylvania Public Accommodations Act, 18 P.S. § 4654.

The defendants moved to dismiss the complaint on these grounds: (1) the District Court lacked jurisdiction over the subject matter; (2) the issues were res adjudicata by reason of prior related proceedings in the state courts; (3) the complaint failed to state a claim upon which relief could be granted; and (4) the Commonwealth of Pennsylvania, its Attorney General, and the City of Philadelphia lacked the requisite standing or capacity to bring the action.

The District Court in its opinion, reported at 260 F.Supp. 323 (E.D.Pa.1966), held that it had jurisdiction with respect to all three counts of the complaint. It based its jurisdiction as to Count I under 28 U.S.C.A. § 1343(3) and 42 U.S. C.A. § 1983, because "the complaint sufficiently raises substantial questions of whether the defendants are, `under color of' state authority, depriving the individual plaintiffs of their right to the equal protection of the laws".2 It further ruled that it had pendent jurisdiction as to Counts II and III, because "the three counts of the complaint constitute a single `case' for a single trial * * * the proof required on the several counts is overlapping, the constitutional issues are at least as significant as the state law questions, and the relief sought is unitary and identical".3

The District Court made this further specific deposition with respect to the defendants' motion to dismiss:

It denied the motion insofar as it related to Counts I and II "without prejudice to the rights of the defendants to renew it at the appropriate time"; it denied the motion as to Count III "insofar as the seven individuals are parties-plaintiff", and granted it as to Count III "insofar as the Commonwealth of Pennsylvania, the Attorney General of Pennsylvania, and the City of Philadelphia are parties-plaintiffs",4 on the ground that they "are precluded by res judicata from claiming that Girard College is violating the Pennsylvania Public Accommodations Act".5

The District Court further ruled that "decision on the merits of counts one and two will be deferred" (260 F.Supp. 357), stating that, "So far as count one is concerned, the issues of nonobvious state involvement are probably the kind that courts are rightly reluctant to decide on a motion to dismiss anyway * * * and They require concrete development to evaluate properly by the process of `sifting facts and weighing circumstances'. Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)".6

After this disposition "of the liminal questions of jurisdiction and standing", the District Court held that the question presented by Count III of the applicability of the Pennsylvania Public Accommodations Act ("Act") was one of first impression, since "The issue was not decided by the Pennsylvania courts in any of the former proceedings",7 which had challenged the exclusion of Negro male orphans from Girard College for the assigned reason that the Will of Stephen Girard, the creator of the College, limited admission to the institution to "poor male white orphans". It further held, after extended discussion of the Act, which makes it a misdemeanor to practice racial discrimination in places of public accommodation and educational institutions generally, except where they are "in * * * their nature distinctly private",8 that "This statute forbids discrimination in schools such as Girard", and, "Accordingly, if the individual plaintiffs can prove count three of their complaint, continued racial discrimination in the selection of students for admission to Girard College will be enjoined".9

Having thus ruled, the District Court granted leave to the defendants to answer the complaint within 30 days of the filing of its opinion on September 2, 1966. The answer was filed on September 21, 1966. Prior thereto, the individual plaintiffs, on September 16, 1966, filed a motion for an early hearing at which evidence could be adduced as to any disputed factual issues with respect to Count III, and for a preliminary injunction "enjoining defendants from discriminating against plaintiffs and all others similarly situated in admission to Girard College on the basis of race".

Hearing was had on the motion for a preliminary injunction on October 3, 1966.10 Evidence was then adduced bearing on Count III. Upon counsel's advice that no additional evidence on that Count would be offered on final hearing, the District Court ordered, without objection by counsel, that the preliminary hearing be treated as on final hearing.

In an Adjudication filed November 2, 1966, reported at 260 F.Supp. 358, the District Court ruled that Girard College "is covered" by the Pennsylvania Public Accommodations Act;11 that "Said Act prohibits defendants from refusing plaintiffs admission to Girard College on the ground that they are not white, if they are otherwise qualified"; and that the minor plaintiffs "are entitled to a permanent and final injunction", which would give effect to its holding.12

The District Court specifically stated in its "Discussion" of its disposition that "This adjudication, of course, reaches and disposes of finally only count three of the complaint. * * * We believed that a single trial would have disposed of the common issues of fact involved in all counts of the complaint. However, plaintiffs' insistence upon proceeding preliminarily (as it turned out, finally) on count three has made this an impossibility". (Emphasis supplied.)13

In the Decree accompanying the Adjudication, the District Court stated in part in Paragraph 1: "Defendants are permanently enjoined from denying to minor plaintiffs admission to Girard College on the sole ground that they are not white, provided that they are otherwise qualified for admission". Paragraph 4 of the Decree provided that "Plaintiffs may institute an action in the Orphans' Court of the County of Philadelphia, in order that the courts of the Commonwealth of Pennsylvania may have due opportunity to decide promptly and expeditiously all issues involved in count two of the plaintiffs' complaint the cy pres count". In Paragraph 5 of the Decree the District Court stated that it "will retain jurisdiction over all allegations of the complaint, pending a final determination of plaintiffs' right to the relief granted * * *."14

The defendants appealed. In their brief they state the issues presented to be as follows:

1. Did the District Court err in holding that a substantial federal question was presented in Count I?
2. Did the District Court err in holding that it had pendent jurisdiction over Counts II and III and cy pres jurisdiction over Count II?
3. Did the District Court err in refusing to abstain from deciding Count III and in retaining jurisdiction over Count II after abstaining from deciding it?
4. Did the District Court err in holding that the orphanage is a place of public accommodation within the meaning of the state Public Accommodations Act?

This must immediately be said with respect to the stated issues.

As earlier established, the District Court specifically said that "this adjudication, of course, reaches and disposes of finally only count three of the complaint". (Emphasis supplied.)

In paragraph 3 of its Decree it stated "The court determines expressly that there is no just reason...

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