Milton Hershey School v. Pennsylvania Human Relations Commission, 110419 PACCA, 665 C.D. 2019

Docket Nº:665 C.D. 2019
Opinion Judge:COHN JUBELIRER JUDGE.
Party Name:Milton Hershey School, Petitioner v. Pennsylvania Human Relations Commission, Respondent
Judge Panel:BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge. Judge Fizzano Cannon did not participate in the consideration of this matter.
Case Date:November 04, 2019
Court:Commonwealth Court of Pennsylvania
 
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Milton Hershey School, Petitioner

v.

Pennsylvania Human Relations Commission, Respondent

No. 665 C.D. 2019

Commonwealth Court of Pennsylvania

November 4, 2019

Argued: September 9, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge.

OPINION

COHN JUBELIRER JUDGE.

Before this Court is the petition for review filed by permission pursuant to Pennsylvania Rule of Appellate Procedure 1311 (note), Pa.R.A.P. 1311 (note), 1 of Milton Hershey School (MHS or School), which asserts that the Pennsylvania Human Relations Commission (Commission) erred in denying MHS's Motion to Dismiss for Lack of Jurisdiction (Motion to Dismiss) a Complaint filed against MHS pursuant to the Pennsylvania Human Relations Act2 (Act). Pursuant to the June 26, 2019 Order of this Court, granting MHS permission to file its petition for review, the issue before us is "[w]hether [MHS] qualifies as a 'public accommodation' under Section 4(l) of the [Act], 43 P.S. § 954(l)." A Commission Motions Examiner concluded that MHS was a public accommodation and, therefore, denied the Motion to Dismiss in an April 16, 2019 interlocutory Order. For the reasons that follow, we vacate that Order and remand for further proceedings, which shall include an evidentiary hearing on this jurisdictional question.

Also before the Court is "The Application for Partial and Prospective Reconsideration of the Granting of Petitioner's Application to Seal the Record" (Application) filed by Intervenor, the complainant, requesting that the Court reconsider its prior order sealing this case and record. Given the multiple privacy interests involved, we will maintain the case and record under seal, but this opinion is designated a reported opinion so as to allow public review of the issue before the Court. Therefore, Intervenor's Application is granted in part and denied in part. Consistent with the sealing of the record and the privacy interests involved, the underlying facts related to the Complaint and the actions taken after its filing will not be referenced in this opinion beyond stating that the Complaint involved a student's readmission to the School following a leave of absence.

I. Background

a. The Motion to Dismiss and Responses

On November 19, 2018, MHS filed the Motion to Dismiss, asserting that the Commission lacked jurisdiction because MHS is not a public accommodation under the Act. A "public accommodation," as relevantly defined, is

any accommodation, resort or amusement which is open to, accepts or solicits the patronage of the general public, including but not limited to . . . kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses and all educational institutions under the supervision of this Commonwealth, . . . but shall not include any accommodations which are in their nature distinctly private.

43 P.S. § 954(l) (emphasis added). In its Motion to Dismiss, MHS requested an evidentiary hearing and set forth factual averments it believed supported its arguments that because the School is distinctly private in nature, is neither open to nor accepts or solicits the patronage of the general public, and/or is not supervised by the Commonwealth, it is not a public accommodation. In support, MHS cited this Court's decision in Roman Catholic Archdiocese v. Pennsylvania Human Relations Commission, 548 A.2d 328 (Pa. Cmwlth. 1988), which held that Catholic parochial schools, despite being schools and accepting non-Catholic students, were distinctly private in nature due to their religious character and, therefore, not public accommodations.

The Commission's Chief Counsel responded to the Motion to Dismiss, maintaining that MHS was "clearly a public accommodation" as "[i]t is undeniably a school included in the list of public accommodations of" Section 4(l). (Reproduced Record at 92a.) The response disputed the claims that MHS was not open to and did not solicit or accept patronage of the general public, and asserted that the School was open to all students who met the School's minimum requirements. It likewise disputed that MHS was like the Catholic parochial schools that were found not to be public accommodations in Roman Catholic Archdiocese.

MHS filed a reply, including therein additional arguments and factual averments, and attaching thereto supporting declarations of School employees, to respond to the arguments and facts asserted in opposition to the Motion to Dismiss. It, again, requested a hearing and asked that the resolution of this jurisdictional issue occur prior to any hearing on the merits of the underlying Complaint. MHS further requested that, if the Motion to Dismiss was denied, the issue be certified for immediate appeal to this Court, as the Commission had done in Roman Catholic Archdiocese and Chestnut Hill College v. Pennsylvania Human Relations Commission, 158 A.3d 251, 256 (Pa. Cmwlth. 2017), both of which involved denials of motions to dismiss for lack of jurisdiction.

Intervenor filed a sur-reply, challenging the accuracy of MHS's averments and the propriety of the arguments the School made in its reply brief.

b. The Decisions Denying the Motion to Dismiss and Refusal to Certify

Despite MHS's requests, no evidentiary hearing was held on the Motion to Dismiss. Instead, the Commission's assigned Motions Examiner denied the Motion to Dismiss in the April 16, 2019 Interlocutory Order. Motions Examiner rejected each of MHS's arguments that the Commission lacked jurisdiction in turn. In rejecting MHS's contention that it is distinctly private, Motions Examiner did not address MHS's particular factual claims as to why it is distinctly private. Rather, Motions Examiner held that Roman Catholic Archdiocese was distinguishable because, in that case, "the schools in question were found to be distinctly private principally because the schools [were] the 'principal organs for transmission of the Catholic faith to new generations of Catholics, '" and the fact that the schools admitted non-Catholics did not change the "religious character" of those schools. (April 16, 2019 Order at 3.) Motions Examiner concluded MHS could not succeed in its argument that it is distinctly private because it "quite simply meets the definition of a public...

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