               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
