Milton Hershey School v. PHRC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Milton Hershey School, :

Petitioner : CASE SEALED

:

v. : No. 665 C.D. 2019

: Argued: September 9, 2019

Pennsylvania Human Relations :

Commission, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: November 4, 2019

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

1

The note to Rule 1311 provides that:

[w]here the administrative agency or lower court refuses to amend its order to

include the prescribed statement, a petition for review under Chapter 15 of the

unappealable order of denial is the proper mode of determining whether the case is

so egregious as to justify prerogative appellate correction of the exercise of

discretion by the lower tribunal. If the petition for review is granted in such a case,

the effect . . . is the same as if a petition for permission to appeal had been filed and

granted, and no separate petition for permission to appeal need be filed.

Pa.R.A.P. 1311 (note).

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

2

Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.

2

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.

3

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 accommodation and the argument that it is not is rejected.”

(Id. at 4.)

4

In rejecting MHS’s argument that the School is not open to the “general

public,” Motions Examiner explained that “no school is open to the ‘general public’”

but schools “are open to students of certain ages who live in certain areas.” (Id. at

3.) Motions Examiner held that a school’s selectivity in its admission process, one

of the bases for MHS’s argument, “does not deter from the fundamental fact [that it]

draw[s] students from the general public.” (Id.) Further, Motions Examiner

concluded the Act’s definition of public accommodation clearly includes “primary

and secondary schools, high schools” and it was “without question that [MHS] is

indeed a ‘school.’” (Id.)

Finally, in rejecting MHS’s argument that it was not a school subject to

supervision by the Commonwealth, Motions Examiner held that “a liberal reading”

of the definition reflects that “any and all schools are covered under Section 4(l).”

(Id. at 3 (emphasis added).) Motions Examiner further explained that although the

Commission had found “a difference between private schools and those schools

under the supervision of the Commonwealth,” it had found that “clearly, both [types

of schools] are covered” by Section 4(l). (Id.)

Motions Examiner did not address MHS’s request for immediate certification

for appeal. Upon MHS’s renewal of that request, the Commission, through the same

Motions Examiner, declined to amend the April 16, 2019 Order to allow for

immediate appeal, explaining as follows. (May 8, 2019 Order.) “For the reasons

outlined in the April 16, 2019 Order, the [Commission] finds that there is not

‘substantial’ grounds for difference of opinion regarding the issue of whether [MHS]

meets the [Act’s] definition of a public accommodation.” (May 8, 2019 Order at 2.)

“Simply stated, [MHS] is clearly a school that need not be supervised by the

5

Commonwealth and that members of the general public can and do attend.”

(Id. (emphasis added).)

II. MHS’s Petition for Review to this Court

a. The June 26, 2019 Order of this Court

Subsequent to the refusal to certify the matter for appeal, MHS filed a petition

for review seeking appellate review of these Orders under Appellate Rule 1311

(note). Following argument, this Court granted permission in an order dated June

26, 2019. Therein, we granted review of the following issue: “Whether [MHS]

qualifies as a ‘public accommodation’ under Section 4(l) of the . . . Act, 43 P.S.

§ 954(l).” We further granted MHS’s application to maintain the case and record

under seal. We now consider whether, based on this record, the Commission,

through Motions Examiner, erred in concluding that MHS is a public

accommodation.

b. The Parties’ Arguments

MHS generally argues the Commission’s conclusion that “any and all schools

are covered under Section 4(l)” of the Act, (April 16, 2019 Order at 3), is contrary

to that section’s plain language and this Court’s precedent. MHS asserts this holding

is contrary to Roman Catholic Archdiocese, which, MHS argues, rejected such a

broad interpretation of Section 4(l). While MHS does not appear to dispute that

there may be some circumstances when it could be considered a public

accommodation for purposes of the Act, for example, a high school basketball game

open to the public, it asserts that, under these circumstances, it does not meet any of

the three requirements necessary to render it a public accommodation. Further, MHS

maintains that the record on appeal consists of the facts, as set forth in its filings and

6

attachments thereto, which have not been challenged. According to MHS, this

Court, after reviewing those unchallenged facts as to each of its claims, can resolve

this issue at this time. Based on that record, MHS argues, it is not a public

accommodation, and, therefore, the Order denying its Motion to Dismiss must be

reversed and the Complaint dismissed for lack of jurisdiction.3

Intervenor argues that MHS’s arguments are premised on the narrowest and

most technical interpretations of the Act, which is required to be construed liberally,

Section 12(a) of the Act, 43 P.S. § 962(a) (“The provisions of this act shall be

construed liberally for the accomplishment of the purposes thereof . . . .”). Intervenor

attaches exhibits to Intervenor’s brief, which are intended to counter MHS’s factual

averments and the conclusions MHS draws from those averments regarding each of

the reasons MHS maintains it is not a public accommodation.

The Commission argues that MHS would not be entitled to a reversal as to the

denial of the Motion to Dismiss because MHS has not established that, as a matter

of law, it is not a public accommodation. The Commission asserts it has the authority

to decide its own jurisdiction in the first instance, even where it is not clear whether

it has jurisdiction. Pittsburgh Bd. of Pub. Educ. v. Pa. Human Relations Comm’n,

820 A.2d 838, 841-42 (Pa. Cmwlth. 2003). Additionally, it maintains that, in

deciding whether MHS is a public accommodation, the three-factor test MHS asserts

is incorrect, citing a two-factor test used by the Supreme Court in Pennsylvania

Human Relations Commission v. Lansdowne Swim Club, 526 A.2d 758, 761 (Pa.

1987). The Commission observes that, due to the procedural posture of this case,

3

We note that MHS, as well as the Commission and Intervenor, go into greater detail in

their arguments on each of the particular reasons why MHS maintains it is not a public

accommodation. However, due to the manner in which we resolve the issue before us, setting

forth those detailed arguments, and the factual averments upon which they are premised, is not

necessary.

7

there has been no hearing at which MHS has presented evidence in support of its

claim that the Commission lacks jurisdiction and no determination on the issue by

the Commission. It maintains a factual inquiry into MHS’s allegations must be

conducted before the Commission’s adjudicatory arm because whether an entity is

a public accommodation depends upon the specific factual situation involved.

Lansdowne Swim Club, 526 A.2d at 761. The Commission asserts that there is

undeveloped, factual evidence that must be weighed by the trier of fact as to whether

MHS is a public accommodation subject to the Commission’s jurisdiction. Contrary

to MHS’s position, the Commission argues, there is no record here, only factual

allegations that have not been subject to examination, cross-examination, and fact

finding. Therefore, the Commission requests that the Court dismiss MHS’s Petition

and allow it to determine whether it has jurisdiction over MHS.

MHS argues in response that no evidentiary hearing is necessary to determine

its status as a public accommodation. It asserts the Commission ceded the right to

contest the School’s factual averments when Motions Examiner chose not to hold an

evidentiary hearing and when the Commission did not challenge those factual

allegations in the Commission’s filings before Motions Examiner.

c. Discussion

After reviewing the parties’ arguments, the relevant statutory provisions, and

the precedent interpreting those provisions, we agree with MHS that Motions

Examiner and, therefore, the Commission, erred in concluding that MHS was a

public accommodation as a matter of law at this stage. However, we disagree with

MHS that no evidentiary hearing before the Commission is required to resolve this

jurisdictional issue.

8

It is well-settled that the Commission has the authority to determine its

jurisdiction in the first instance, even where it may not be clear that it would have

jurisdiction over a particular entity. Id. at 761; Pittsburgh Bd. of Pub. Ed., 820 A.2d

at 841. Our Supreme Court has clarified that when determining whether an entity is

a public accommodation under Section 4(l), which is a prerequisite to the

Commission having jurisdiction, “[t]he[] references to the general concepts of

‘public’ and ‘private’ [in that section] take on meaning only as applied to specific

factual situations.” Lansdowne Swim Club, 526 A.2d at 761 (emphasis added). It

is the Commission that “is ‘[t]he appropriate body’ to apply the concepts of public

and private to assess the nature of the accommodation before it.” Chestnut Hill Coll.,

158 A.3d at 258.

The factual nature of this inquiry is reflected in our decisions in Roman

Catholic Archdiocese and Chestnut Hill College. In both of those cases, we were,

as here, reviewing the denial of motions to dismiss for lack of jurisdiction. This

Court, in both cases, noted the procedural posture of the appeals and the resulting

lack of an evidentiary record. Chestnut Hill Coll., 158 A.3d at 261; Roman Catholic

Archdiocese, 548 A.2d at 330. In Roman Catholic Archdiocese, the Archdiocese

submitted documents and publications to this Court to support its argument that

parochial schools were distinctly private based on their role in transmitting the

Catholic faith. The Court was not able to consider the documentation given “the

present posture of th[e] case, where no testimony has been taken and we are

concerned only with preliminary motions” and because the documentation was “not

in evidence and . . . [was] not part of the record.” Roman Catholic Archdiocese, 548

A.2d at 330. However, the United States Supreme Court had already found, in

9

Lemon v. Kurtzman, 403 U.S. 602, 616 (1971),4 that Catholic parochial schools play

a significant role in the religious mission of the Catholic faith and the substantial

religious activity and purpose of those schools. Therefore, this Court, bound to apply

that finding, determined that the Catholic parochial schools were distinctly private

in nature due to the religious character, citing Lemon.

In Chestnut Hill College, we were asked to expand Roman Catholic

Archdiocese’s holding to Catholic colleges, although lacking “the benefit of a factual

record.” Chestnut Hill Coll., 158 A.3d at 260. We explained, however, that the

holding in Lemon could not be applied to Catholic colleges because the factual

differences between the religious activities and purposes of Catholic parochial

schools and Catholic colleges had been recognized in federal court decisions. Id.

Thus, because Catholic colleges were factually distinguishable from the Catholic

parochial schools at issue in Roman Catholic Archdiocese, a factual record was

necessary. We could not, “at this stage, when the factual record remains

undeveloped,” determine that “[the c]ollege is not absolutely excluded from the

definition of ‘public accommodation’ based on its religious nature.” Chestnut Hill

Coll., 158 A.3d at 261 (emphasis added). The Court did “not foreclose the

possibility that [the c]ollege may demonstrate its distinctly private nature

4

In Lemon, the Supreme Court observed that the district court had

concluded that the parochial schools constituted an “integral part of the religious

mission of the Catholic church.” The various characteristics of the schools make

them “a powerful vehicle for transmitting the Catholic faith to the next generation.”

This process of inculcating religious doctrine is, of course, enhanced by the

impressionable age of the pupils, in primary schools particularly. In short,

parochial schools involve substantial religious activity and purpose.

403 U.S. at 616. The concurring opinion authored by Justice Douglas and joined by Justice Black

noted “the admitted and obvious fact that the raison d’etre of parochial schools is the propagation

of a religious faith.” Id. at 628 (Douglas, J., concurring).

10

during the proceedings before the Commission, based on a factual . . .

determination.” Id. (emphasis added).

Thus, the question of whether an entity is a public accommodation is one

determined by the specific factual situation of each case. See, e.g., Lansdowne Swim

Club, 526 A.2d at 761; Chestnut Hill Coll., 158 A.3d at 261; Gilbert v. Milton

Hershey School, No. 1:16-CV-1798, (M.D. Pa. Aug. 30, 2017), 2017 WL 3727447,

at *6 (dismissing claim under the Act because of the plaintiff’s “fail[ure] to aver

sufficient facts from which the court could conclude that [MHS], a private school,

would qualify as a ‘public accommodation’ as defined by the Act”) (emphasis

added). With this in mind, we consider the Orders at issue.

We begin with the Commission’s assertion that it has not made a

determination on MHS’s status as a public accommodation. Here, Motions

Examiner issued the Orders denying MHS’s Motion to Dismiss and request to certify

that issue for immediate appeal. Pursuant to the Commission’s regulations, such

orders are considered “a ruling of the Commission for all purposes.” 16 Pa. Code

§ 42.131(e). That these Orders were made on behalf of the Commission is further

reflected by the fact that each Order ends with “Pennsylvania Human Relations

Commission” followed by Motions Examiner’s signature. Thus, we do not agree

that the Commission has not addressed this jurisdictional issue. However, this does

not end our inquiry, and we now turn to the Orders themselves to determine whether

they are erroneous, as asserted by MHS.

The April 16, 2019 Order denying MHS’s Motion to Dismiss did so based on

its conclusion, without limitation or qualification, that “any and all schools are

covered under Section 4(l),” and that MHS “quite simply meets the definition of a

public accommodation.” (April 16, 2019 Order at 3-4 (emphasis added).) In the

11

subsequent May 8, 2019 Order denying certification for immediate appeal, Motions

Examiner stated there were “not ‘substantial’ grounds for difference of opinion

regarding the issue of whether [MHS] meets the [Act’s] definition of public

accommodation,” (May 8, 2019 Order at 2). This order further explained, “[s]imply

stated, [MHS] is clearly a school that need not be supervised by the Commonwealth

and that members of the general public can and do attend.” (Id.) These broad

conclusions were made without the benefit of an evidentiary hearing and reflect that

they were statements made as a matter of law, rather than based on an examination

of the particular factual situation.

First, to the extent Motions Examiner found that “any and all schools are

covered under Section 4(l),” (April 16, 2019 Order at 3), this Court rejected a similar

argument in Roman Catholic Archdiocese. In that case, the Commission argued that

the “Act lists schools as within the purview of the public accommodation sections

of the Act without limitation or qualification as to private or sectarian schools.”

Roman Catholic Archdiocese, 548 A.2d at 329. Examining the educational entities

listed in Section 4(l), we observed this list did not include “parochial schools” and,

therefore, those schools were excluded under the legal maxim of “expressio unius

est exclusio alterius.” Id. at 329-30. Thus, not all schools are covered by Section

4(l). Moreover, even if the type of school or educational entity is included in that

list, it remains possible that the school may be excluded from Section 4(l) if it can

prove that it is distinctly private in nature. Chestnut Hill Coll., 158 A.3d at 260-61

(noting that colleges and universities were specifically listed as public

accommodations in Section 4(l), but providing the college the opportunity to present

facts to establish that it would be excluded as distinctly private in nature).

12

Accordingly, the conclusion that “any and all schools are covered under Section

4(l)” is erroneous. (April 16, 2019 Order at 3.)

Second, as noted above, because there was no evidentiary hearing, Motions

Examiner could not rely on any particular evidence to find that MHS is a public

accommodation. Rather, Motions Examiner relied only on the conclusions that

MHS is a school that he believed admitted members of the general public, without

fully addressing the factual allegations made by MHS regarding it not being open to

the general public. More critically, Motions Examiner left unaddressed MHS’s

factual allegations related to the multiple reasons it claims it is distinctly private in

nature. While Motions Examiner observed that Roman Catholic Archdiocese

involved Catholic parochial schools, leaving unsaid that MHS is not a Catholic

parochial school, this fact is not determinative on whether a school is a public

accommodation. See Chestnut Hill Coll., 158 A.3d at 260-67 (remanding for factual

development on the issue of whether the college was distinctly private in nature).

Under the circumstances here, which do not involve a Catholic parochial school, an

evidentiary hearing is necessary to address MHS’s specific claims that it is not a

public accommodation subject to the Commission’s jurisdiction. Due to the

undeveloped factual record in this case, Motions Examiner’s conclusion that MHS

is a public accommodation was not based on an examination of the specific factual

situation as required by Lansdowne Swim Club, 526 A.2d at 761. Accordingly, the

Orders finding that MHS is a public accommodation subject to the Commission’s

jurisdiction are vacated, and this matter is remanded for an evidentiary hearing at

which a record can be created in order to resolve this jurisdictional question, which

is a determination for the Commission in the first instance. Lansdowne Swim Club,

526 A.2d at 761; Pittsburgh Bd. of Pub. Ed., 820 A.2d at 841-42.

13

Finally, we address what factors the Commission should consider, on remand,

in determining whether MHS is a public accommodation. MHS asserts there are

three: is it open to or solicits or accepts the patronage of the general public; is it a

school under the supervision of the Commonwealth; and/or is it distinctly private in

nature. The Commission, in contrast, asserts that the Supreme Court in Lansdowne

Swim Club, addressed only the first and the third factors and, therefore, only those

two factors are relevant. However, Lansdowne Swim Club did not involve a school

or educational entity, but a swimming pool and club, and, therefore, it was not

necessary for the Supreme Court to discuss the second factor cited by MHS as

relevant in this factual situation. In addition, there is a dispute as to whether, based

on the language of Section 4(l), supervision of the Commonwealth is a requirement

for all educational facilities or entities listed, and, if it is, whether MHS is, factually,

under such supervision. Motions Examiner held only that, based on a liberal

interpretation of that section, all schools are public accommodations, regardless of

whether they are supervised by the Commonwealth, without fully analyzing the

issue. Because the issue of jurisdiction is one for the Commission in the first

instance, the Commission must resolve this issue, both legally and, if necessary,

factually, when determining MHS’s status under the Act.

14

III. Conclusion

For the foregoing reasons, we vacate the April 16, 2019 Order denying the

Motion to Dismiss and finding that MHS is a public accommodation, and we remand

for the Commission to hold an evidentiary hearing and issue a new determination

regarding MHS’s status under the Act. Further, Intervenor’s Application is granted

in part and denied in part.

_____________________________________

RENÉE COHN JUBELIRER, Judge

Judge Fizzano Cannon did not participate in the consideration of this matter.

15

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Milton Hershey School, :

Petitioner : CASE SEALED

:

v. : No. 665 C.D. 2019

:

Pennsylvania Human Relations :

Commission, :

Respondent :

ORDER

NOW, November 4, 2019, the April 16, 2019 Order of the Pennsylvania

Human Relations Commission is hereby VACATED, and this matter is

REMANDED for further proceedings in accordance with the foregoing opinion.

“The Application for Partial and Prospective Reconsideration of the Granting of

Petitioner’s Application to Seal the Record” filed by Intervenor is GRANTED IN

PART to the extent that the foregoing opinion is designated a reported opinion, and

DENIED IN PART to the extent that the case and record otherwise remain sealed.

Jurisdiction relinquished.

_____________________________________

RENÉE COHN JUBELIRER, Judge