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GIRARD CLARIFICATION PETITION (12/06/66)

decided: December 6, 1966.

GIRARD CLARIFICATION PETITION


Appeals from decrees of Orphans' Court of Philadelphia County, July T., 1885, No. 10, in re estate of Stephen Girard, deceased.

COUNSEL

Arthur Littleton, John Russell, Jr., Ernest R. Von Starck, Richard P. Brown, Jr., Gaffney & Gaffney, and Morgan, Lewis & Bockius, for petitioners.

Edward Friedman, Attorney General, for Commonwealth, respondent.

Edward G. Bauer, Jr., City Solicitor, and Levy Anderson, First Deputy City Solicitor, for City of Philadelphia, respondent.

William T. Coleman, Jr., Charles J. Biddle, and Dilworth, Paxson, Kalish, Kohn & Dilks, and Drinker, Biddle & Reath, for individual appellants and respondents.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Jones. Mr. Justice Eagen and Mr. Justice O'Brien join in this concurring opinion. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Musmanno.

Author: Roberts

[ 423 Pa. Page 299]

The sole issue before this Court is whether we should entertain a petition for clarification of two opinions rendered by this Court in the Girard College Trusteeship, 391 Pa. 434, 138 A.2d 844 (1958), and Girard Will Case, 386 Pa. 548, 127 A.2d 287 (1956), eight and ten years ago respectively. Only two members of the present Court participated in the first Girard decision, and three, in the second.

Significantly the district court refused to abstain from deciding the state issues involved in this controversy. Commonwealth v. Brown et al., Trustees of the Estate of Stephen Girard, 260 F. Supp. 323 (E.D. Pa. 1966). Due regard for the proper administration of our federal-state system of dual judicial tribunals suggests that it would be highly inappropriate for this Court to entertain the petition for clarification, since the district court's decision is currently on appeal before the United States Court of Appeals for the Third Circuit.

It should be emphasized, however, that the determination by this Court not to entertain the petition in no way implies a view on the merits of any issue in the controversy presently before the federal courts.

The petition for clarification is therefore denied.

Disposition

The petition for clarification is therefore denied.

Concurring Opinion by Mr. Justice Jones:

I join in that which has been stated by the majority of my colleagues in the denial of this petition.

I would add that, in my opinion, the procedure adopted by the petitioners to obtain clarification not of

[ 423 Pa. Page 300]

    supra,*fn* and Girard College Trusteeship, 391 Pa., supra. Certiorari in this last case was denied by the Supreme Court of the United States in 357 U.S. 570. In each of these cases, the Supreme Court of Pennsylvania heard and considered and decided all of the contentions which the Commonwealth of Pennsylvania and the City of Philadelphia and counsel for Negro boys are now making to the District Court of the United States.

In Girard College Trusteeship, this Court considered inter alia and rejected the contention that the Public Accommodations Act of June 24, 1939, P. L. 872, § 654, 18 P.S. § 4654, applied to Girard College, which this Court has said twice is primarily and principally an Orphanage Establishment for poor male white orphans.*fn** Since the application of the Public Accommodations Act, which was cited by counsel for the Negro boys in a footnote in their brief and was not specifically referred to in the body of this Court's Opinion in Girard College Trusteeship, I believe that clarification of our Opinion (after oral argument on this point) is, under all the circumstances, wise.

Each and all the parties in interest had two appropriate remedies: (1) clarification. See Lawler v. Commonwealth, 347 Pa., supra; Crawford's Estate, 313 Pa., supra; and (2) a petition to the Orphans' Court of Philadelphia County for a reconsideration of Girard's will in the light of (a) changed circumstances, and (b) recent decisions of the Supreme Court of Pennsylvania and of the Supreme Court of the United States.

[ 423 Pa. Page 302]

It is well established that the meaning and interpretation of a State statute is a matter for the State Courts and not for a Federal Court. Erie Railroad Page 302} Company v. Tompkins, 304 U.S. 64; Mine Workers v. Gibbs, 383 U.S. 715, 726.

Every Judge knows, and nearly every attorney knows, that a Court frequently does not specifically discuss and answer in its Opinion in every case, every contention made by either or both of the parties. Since the Public Accommodations Act of 1939 was not specifically discussed and specifically rejected (as inapplicable to Girard College) in this Court's Opinion in the Girard College Trusteeship case, and since Federal District Court Judge Joseph S. Lord, III, in Commonwealth v. Brown, Trustees of the Estate of Stephen Girard, Civil Action No. 39404, 260 F. Supp. 323, based his Opinion on his interpretation of the Public Accommodations Act,**fn** I favor (I repeat) oral reargument in order to clarify our decision on this point.

It is important to note what Judge Joseph S. Lord overlooked was that the Supreme Court of Pennsylvania, in Girard College Trusteeship, 391 Pa., supra, pertinently said (page 445): "The private character of the trust and the privacy of the Orphanage which the trust was established to maintain and administer were aptly described in Girard Will Case, supra, as follows: 'All provisions of the will show that it was not intended to be a public school; indeed, it is not merely a school at all but what Girard himself called in a codicil to his will, an "Orphan Establishment," a home where the fatherless boys eat, sleep, study and live together, enjoying the testator's bounty which provides ...


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