Ritacco v. Norwin School District

• Decision Date: 03 August 1973
• Docket Number: Civ. A. No. 72-889.
• Citation: 361 F. Supp. 930
• Parties: Elizabeth RITACCO and Roxanne Ritacco, Individually and on behalf of all other persons similarly situated v. NORWIN SCHOOL DISTRICT et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

361 F. Supp. 930

Elizabeth RITACCO and Roxanne Ritacco, Individually and on behalf of all other persons similarly situated v. NORWIN SCHOOL DISTRICT et al.

Civ. A. No. 72-889.

United States District Court, W. D. Pennsylvania.

August 3, 1973.

Behrend & Aronson, Pittsburgh, Pa., for Ritacco.

H. Nevin Wollam, Greensburg, Pa., for Norwin School Dist.

McNees, Wallace & Nurick, Harrisburg, Pa., Kuhn, Engle, Blair & Stein, Pittsburgh, Pa., for Western Pennsylvania Interscholastic League and Pennsylvania Interscholastic Athletic Ass'n.

OPINION AND ORDER

GOURLEY, District Judge.

This is a civil non-jury proceeding in which a declaratory judgment and injunctive relief are sought for alleged deprivation of constitutional rights in violation of the Civil Rights statutes, 42 U.S.C.A. § 1983. The Court has conducted a full and complete trial and has considered the briefs and arguments of counsel. Based thereon, it must be concluded that plaintiff is not entitled to any relief.

Essentially plaintiff contends that she and the class which she assertedly represents have been subject to a deprivation of constitutional rights as a result of a regulation of the Pennsylvania Interscholastic Athletic Association (PIAA), an unincorporated voluntary association of Pennsylvania schools, which required, in effect, separate girls' and boys' teams for interscholastic non-contact sports. Plaintiffs' position is that girls should be permitted to compete on boys' teams, and that there should not be separate teams based on sex.

Plaintiff Roxanne Ritacco graduated from Norwin High School on May 26, 1973. Her mother, plaintiff Elizabeth Ritacco, is a resident and taxpayer of the Norwin School District. It would appear, therefore, that as to these plaintiffs, the case is moot. Thus, if any viability remains in the present action, the validity of the class action which the Court allowed by granting a motion to amend the complaint on June 4, 1973, must remain. However, on reflection, the Court is compelled to the conclusion that there is no valid class action here. Thus the post-trial motion to amend the caption is superfluous.

The class which Miss Ritacco purports to represent is composed of all female students of the Norwin School District. She is no longer a member of this class. It seems clear that a person cannot represent a class if he or she is not a member of it. "In short, a predicate to plaintiff's right to represent a class is his eligibility to sue in his own right. What he may not achieve himself, he may not accomplish as a representative of a class." Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727 (3d Cir. 1970), cert. den., 401 U.S. 974, 91 S.Ct. 1190, 28 L.Ed.2d 323 (1971).

Moreover, this does not constitute a proper delineation of a class action consistent with Rule 23(a) of the Federal Rules of Civil Procedure. The criteria set forth in Rule 23(a) are simply not satisfied since it cannot be determined whether the class is composed of those females who participate in interscholastic athletic contests or those who wish to participate in team sports only if they can do so in competition with males. The record is barren of any indication that any other female student feels that her constitutional rights have been deprived.

It is incumbent on this Court to conclude that no proper class action exists; such a determination may be properly made at any time. As the United States Court of Appeals for the Third Circuit has recently stated, "Rule 23(c)(1) mandates that the district court determine as soon as practicable after commencement of a suit whether a class action is to be allowed. However, the district court retains discretion to modify that determination at any time before a final decision on the merits." Katz v. Carte Blanche Corporation, (3d Cir. Slip Opinion No. 72-1054 filed May 22, 1973, but not as yet published). Without a proper class action, there is no basis for granting plaintiffs any relief.

If the Court is in error in concluding that no proper class action exists, in the alternative, there is no basis for determining that plaintiffs have been denied any constitutional right. Unquestionably the PIAA and the Western Pennsylvania Interscholastic Athletic League (WPIAL), which is an administrative subdivision of the PIAA, have implemented a rule to which all member schools including the Norwin School District are subject, which requires the maintenance of separate...