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decided: August 11, 1978.


No. 572 January Term, 1977, On Appeal from the Order of the Commonwealth Court of Pennsylvania Denying the Petition of the Pennsylvania Human Relations Commission for Enforcement of Orders of the Pennsylvania Human Relations Commission and the Commonwealth Court of Pennsylvania, No. 1056 C.D. 1973. No. 103 March Term, 1977, Appeal from Final Order of Commonwealth Court entered at No. 568 C.D. 1971 on January 13, 1977.


Justin M. Johnson, Persifor S. Oliver, Jr., Frederick A. Boehm, Alan J. Bouffard, Goehring, Rutter & Boehm, Pittsburgh, for appellant.

Jay Harris Feldstein, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Larsen, J., did not participate in the consideration or decision in the case at No. 103 March Term, 1977. Packel, former J., did not participate in the decision in the case at No. 103 March Term, 1977. Nix, J., files a dissenting opinion with respect to both appeals in which Roberts and Manderino, JJ., join.

Author: Pomeroy

[ 480 Pa. Page 402]


These two cases have been briefed and argued separately. They involve nonetheless a common problem -- the integration of the public schools in the major metropolitan centers of this Commonwealth; they have a common point of origin -- the August 17, 1972 decision of the Commonwealth Court in the case entitled Philadelphia School District v. Human Relations Commission, 6 Pa. Commw. 281, 294 A.2d 410 (1972); and they present certain legal questions in common. For those reasons, they are treated here in a single opinion.


     a. The Commission's Amended Final Orders dated September 25, 1972

In 1972, the Commonwealth Court considered the appeals of five school districts -- including the Philadelphia and Pittsburgh School Districts -- from orders of the Pennsylvania Human Relations Commission (the "Commission" or the "PHRC") directing each district to submit a plan to achieve racial balance in its public schools. After consideration of such appeals, the Commonwealth Court remanded the cases to the PHRC for modification of its orders in accordance with the Court's opinion after such further conferences, hearings, conciliation and persuasion as the PHRC deemed appropriate.*fn1 Neither the School District of Philadelphia ("Philadelphia" or "School District") nor the School District

[ 480 Pa. Page 403]

    of Pittsburgh ("Pittsburgh" or "School District") took an appeal from that order.*fn2

Upon remand and without any further proceedings, the PHRC rendered and served upon both Philadelphia and Pittsburgh Amended Final Orders dated September 25, 1972 which, inter alia, required each school district to submit to the Commission by January 2, 1973 a plan that would eliminate racial imbalance in its schools in conformity with the Commission's "Recommended Elements of a School Desegregation Plan" (the "Recommended Elements") dated May 15, 1968 and in accordance with a timetable contained in its Amended Final Orders.*fn3

     b. Subsequent Proceedings in the Pittsburgh Case

Pursuant to the Commission's Amended Final Order and in accordance with an extension of time which the PHRC had granted to it, the Pittsburgh Board of Public Education submitted a school reorganization plan to the Commission on February 26, 1973. Thereafter, the PHRC advised the School District that, in the Commission's view, the proposed plan did not fully comply with the Amended Final Order, and the Commission sought clarification from Pittsburgh as to why the District could not comply.*fn4

During the period from 1973 through 1976, members and representatives of the Pittsburgh Board of Public Education and of the Commission had various conferences and communications about the February 1973 reorganization plan, the

[ 480 Pa. Page 404]

    actions taken by the School District to implement that plan and certain other reorganization plans which the District had under consideration. Although the School District apparently considered various amendments or alternatives to the February 1973 plan during the three year period following its submission, no such revised plan was ever formally adopted by the Board of Education or submitted to the Commission; the February 1973 plan is the only submission from Pittsburgh to the Commission. The various conferences between Pittsburgh and the Commission did not achieve any final resolution of their disagreements, and on August 18, 1976 the Commission, acting pursuant to Section 10 of the Pennsylvania Human Relations Act (the "Act"), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 960, filed with the Commonwealth Court a petition for enforcement of its Amended Final Order of September 25, 1972.

The Commission's petition for enforcement was answered by the School District, and the matter was argued before the Commonwealth Court.*fn5 The School District did not request an evidentiary hearing nor, insofar as the record before us indicates, did the District ever suggest that any evidentiary matters were pertinent to the issue before the court.*fn6 By

[ 480 Pa. Page 405]

    order dated January 13, 1977, the Commonwealth Court directed Pittsburgh to prepare and submit a definitive plan to the Commission "to correct racial imbalance in its schools, in accordance with the law and the Commission's guidelines." That order further directed that the School District's plan "shall conform to the requirements of the Amended Final Order" in all respects save that of the timetable contained therein; in recognition of the passage of time during the course of the negotiations between Pittsburgh and the Commission, the court, in its order, established a new timetable for desegregation which the School District's new plan was to follow. In entering its order, the court noted that counsel for both parties had indicated that "they would be amenable to a resolution of this case by an order requiring [Pittsburgh] to submit a new plan for the correction of racial imbalance in the School District."

From the Commonwealth Court's order of January 13, 1977 the Pittsburgh School District took a timely appeal to this Court. On April 11, 1977, the PHRC filed a motion to quash the appeal and a brief in support of the motion. In the interim, acting by counsel specially retained by it, the School District filed a petition for allowance of appeal, and the Commission filed a brief in opposition to that petition.*fn7 By order dated August 5, 1977, we reserved decision on the Commission's motion to quash and specifically directed the parties to brief and argue the following questions:

(1) Whether the School District is entitled to an appeal as a matter of right; and

(2) Whether any of the issues raised by the School District had been waived or were res judicata as a result of the prior

[ 480 Pa. Page 406]

    proceedings before the Commission and Commonwealth Court.

     c. Subsequent Proceedings in the Philadelphia Case

Following the entry of its Amended Final Order on September 25, 1972, the Commission granted several requests by Philadelphia for extensions of time within which that District might submit a desegregation plan. When Philadelphia failed and refused to submit any plan to the Commission after the expiration of the deadline, as extended, the PHRC filed a Petition for Enforcement of its Amended Final Order with the Commonwealth Court. After hearing, that court, by order dated November 14, 1973, granted the Commission's petition and directed Philadelphia to submit to the Commission by February 15, 1974, a plan and timetable to eliminate the racial imbalance of its schools in accordance with the Commission's Amended Final Order.*fn8

Following the timely submission of a plan by Philadelphia in February, 1974, the Commission reviewed that plan and disapproved it as not being in compliance with its Amended Final Order and not containing any justification for such non-compliance as allowed in the order.*fn9 In consequence, on April 2, 1974, the Commission filed a second petition for

[ 480 Pa. Page 407]

    enforcement with the Commonwealth Court, requesting that the Philadelphia School District be found in contempt of the court's order of November 14, 1973, and further requesting that the court act to effectuate compliance with that order. Following a further hearing, the court issued a Memorandum Order of June 4, 1974, appointing Dr. David H. Kurtzman as an expert to examine the School District's February, 1974 plan and to provide the court with recommendations or modifications of that plan which would put it in compliance with the Commission's Amended Final Order or with reasons that would justify non-compliance. Dr. Kurtzman's report and recommendations were submitted to the court on August 29, 1974.*fn10 An evidentiary hearing was held by the court of that report, and both the Commission and the Philadelphia School District presented evidence in opposition to the Kurtzman recommendation. Faced with that situation, the Commonwealth Court, by order dated October 1, 1974, directed both the Commission and the School District to prepare definitive plans for the desegregation of the public schools of Philadelphia for submission to the court by January 31, 1975.

Following a number of extensions of time which the court granted to the parties, both Philadelphia and the Commission filed plans with the court in July, 1975. Plans were also

[ 480 Pa. Page 408]

    filed by the intervenors Gwynne and certain other interested persons.*fn11 Hearings on those plans were held by the court in Philadelphia in August, 1975, at which evidence was received from the parties, from the intervenors and from members of the general public. The PHRC and the School District presented support for their own plans and produced objections to the other's proposals. After argument to the full court by all concerned parties, the Commonwealth Court found that the plans submitted by the Commission*fn12 and by the School District*fn13 were unsatisfactory.*fn14 Accordingly, by

[ 480 Pa. Page 409]

    opinion and order entered February 13, 1976, the Court "reluctantly" referred the matter back to the School District with the direction that Philadelphia ". . . make a realistic and effective proposal to integrate its schools . . . ." Philadelphia was ordered to prepare and submit to the Commission for its review and approval a definitive plan and timetable for the desegregation of the Philadelphia public schools, together with a written justification for each instance in which it was proposed that a school should remain racially imbalanced. The order further required that the plan be submitted to the Pennsylvania Department of Education for its recommendations as to educational content, and that the submission to both the Commission and the Department be made by July 1, 1976. Pennsylvania Human Relations Commission v. School District of Philadelphia, 23 Pa. Commw. 312, 352 A.2d 200 (1976).

Following a one month extension granted by the court, Philadelphia submitted its July 1976 Desegregation Plan (the "1976 Plan") to the Commission. Thereafter, the Commission reviewed the 1976 Plan with the Department of Education and with representatives of the School District. The Commission notified the District of certain concerns which it had about the 1976 Plan, and the District responded to some of them. On September 27, 1976, the Commission officially voted to disapprove the 1976 Plan and again initiate enforcement proceedings in the Commonwealth Court.*fn15

[ 480 Pa. Page 410]

Accordingly, on November 18, 1976, the Commission filed a third petition for enforcement seeking implementation of its Amended Final Order of September 25, 1972 and of the prior orders of the Commonwealth Court.

In response to that petition, the court convened a hearing on January 13, 1977, at which both parties presented testimony and evidence. Following argument upon the enforcement petition and the legal sufficiency of the 1976 Plan, the Commonwealth Court denied the Commission's petition for enforcement and directed the School District to implement the 1976 Plan, as submitted. Pennsylvania Human Relations Commission v. School District of Philadelphia, 30 Pa. Commw. 644, 374 A.2d 1014 (1977). The Commission's appeal to this Court followed.


At the outset, we are confronted with the anomaly of a motion to quash filed by the Commission in response to Pittsburgh's appeal from the Commonwealth Court order granting the Commission's petition for enforcement and a roughly contemporaneous direct appeal by the Commission from the Commonwealth Court order denying the petition for enforcement which the Commission filed in the Philadelphia case.*fn16 We conclude that the instant orders are appealable to this Court pursuant to the terms of Section 203 of the Appellate Court Jurisdiction Act of 1970, Act No. 223, July 31, 1970, P.L. 673, 17 P.S. § 211.203.

Section 203 provides that this Court "shall have exclusive jurisdiction of appeals from all final orders of the Commonwealth

[ 480 Pa. Page 411]

Court entered in any matter which was originally commenced in said court and which does not constitute an appeal from . . . an administrative agency . . . ."

Each of these cases involves "final order[s] of the Commonwealth Court." In the Philadelphia action, the Commonwealth Court has denied the relief sought by the Commission; in the Pittsburgh action, the court has denied the School District's request for relief and has required it to take certain further affirmative steps. In each case, the court's order disposes of the entire matter before the court, and no piecemeal review is at issue. See Piltzer v. Independence F. S. & L. Assn., 456 Pa. 402, 319 A.2d 677 (1974).

Moreover, we conclude that an enforcement proceeding which the PHRC initiates before the Commonwealth Court constitutes a matter which is "originally commenced" in that court and that an appeal from the order of the Commonwealth Court which disposes of such an enforcement proceeding is not "an appeal from . . . an administrative agency." See Section 203, supra, of the Appellate Court Jurisdiction Act. The proceedings in these matters have, of course, been pursued by and before the Commission itself, have involved extended conciliation efforts, the filing of a complaint, evidentiary hearings, extensive submissions, the review of submitted plans and negotiations concerning such plans, and of course the entry of various orders by the Commission. In both of these cases, however, the issues presented by the petitions for enforcement were originally addressed in the Commonwealth Court.*fn17 The issues presented by these appeals do not directly involve determinations by the Commission itself; rather, they involve determinations by the Commonwealth Court -- that Philadelphia has substantially complied with the court's prior orders and that Pittsburgh is required to submit a desegregation plan pursuant to the Commission's Amended Final Order. The

[ 480 Pa. Page 412]

    issues presented by these appeals have not previously been presented to an appellate court. Accordingly, we believe that these appeals are embraced by Section 203 of the Appellate Court Jurisdiction Act and are appealable to this Court as of right. See Commonwealth of Pennsylvania, Department of Environmental Resources v. Wheeling Pittsburgh Steel Company, 473 Pa. 432, 375 A.2d 320 (1977).


     a. The Pittsburgh Case

The January 13, 1977 order of the Commonwealth Court directs Pittsburgh to submit to the Commission "a definitive plan to correct racial imbalance in its schools, in accordance with the law and the Commission's guidelines." That order sets forth with some specificity the nature of the plan which the School District shall follow and the procedures which shall apply to its review: it establishes a date for the submission of that plan; it directs that the plan shall "conform to the requirements of the Amended Final Order"; it establishes a timetable for the elimination of racial imbalance which the plan shall meet; it requires the submission of the plan to the Department of Education for comment; it requires the Commission to approve or disapprove of the plan in whole or in part with any objections to be set forth in writing with specificity; and it provides for the court's retention of jurisdiction over the matter.

In its opposition to the Commonwealth Court order, Pittsburgh advances a variety of arguments: that the filing of a desegregation plan is not mandated by statute or regulation; that the Commonwealth Court exceeded its jurisdiction under Section 10 of the Act by entering a new order which did not modify an order of the Commission and by failing to take testimony in connection with its entry of that order; that the order appealed from is contrary to law. In addition, the District contends that the order as drawn fails to take into consideration certain particular problems which the School District may have in achieving the prescribed

[ 480 Pa. Page 413]

    degree of desegregation on the time schedule in question, requires more of the District than is practical or feasible, and departs from the case-by-case consideration of such matters mandated by statute and by this Court's prior decisions.*fn18

To a significant degree, much of the argument presented on behalf of the School District is ...

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