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ALPHA TAU OMEGA FRATERNITY TAU CHAPTER UNDERGRADUATE STUDENTS v. UNIVERSITY PENNSYLVANIA AND GEORGE S. KOVAL (08/19/83)

filed: August 19, 1983.

ALPHA TAU OMEGA FRATERNITY TAU CHAPTER UNDERGRADUATE STUDENTS, APPELLANTS,
v.
UNIVERSITY OF PENNSYLVANIA AND GEORGE S. KOVAL, ACTING VICE PROVOST FOR UNIVERSITY LIFE



No. 975 Philadelphia, 1983, Appeal from the Order entered April 8, 1983 In the Court of Common Pleas of Philadelphia County, Civil Division, No. 6300 March Term, 1983.

COUNSEL

George F. Schoener, Jr., Philadelphia, for appellants.

A. Grant Sprecher, Philadelphia, for appellee.

Cercone, President Judge, and McEwen and Hoffman, JJ.

Author: Cercone

[ 318 Pa. Super. Page 295]

Appellants, plaintiffs below, are members of a chapter of the national fraternity, Alpha Tau Omega, which is located at the University of Pennsylvania. Named as defendants below are the University of Pennsylvania and George S. Koval, Acting Vice Provost for University Life. Appellants come before us seeking reversal of an order by the Honorable Charles P. Mirarchi, Administrative Judge, by which he dismissed appellant's complaint in equity for lack of jurisdiction, dissolved a temporary restraining order which had been in effect, and denied appellant's petition for a preliminary injunction. We conclude that appellants' arguments are meritorious, and therefore reverse the order of the lower court.

On February 17, 1983, the Alpha Tau Omega fraternity (A.T.O.) sponsored a party at the fraternity house on the University of Pennsylvania campus. On February 22, 1983

[ 318 Pa. Super. Page 296]

    a woman complained to the university that she was raped by several members of A.T.O. while a guest in the fraternity house.

Investigations were conducted by the University Judicial Officer and the Office of Fraternity Affairs. As a result of the investigations, a hearing was held before the Fraternity/Sorority Advisory Board on March 23, 1983. Evidence was taken from witnesses who were members of the fraternity and those outside the fraternity. The fraternity submitted a "position paper" about itself. At the conclusion of the hearing, the Advisory Board recommended that the fraternity be suspended from the University through January of 1984.

Based upon this procedure, the decision was announced by the Acting Vice Provost to withdraw the recognition status of A.T.O. from the University of Pennsylvania, with a proviso that no active chapter will be permitted to exist on the campus earlier than September, 1984; it further provided that the national A.T.O. fraternity may submit a detailed plan for reconstitution of the chapter and for provisional recognition for the University to review.

A.T.O. then filed a Complaint in Equity and a Motion for Preliminary Injunction against any action by the school enforcing the decision to withdraw recognition. A temporary restraining order was issued; after oral argument on the matter of the preliminary injunction, the lower court found there was no authority for it to assume jurisdiction over the internal disciplinary actions of a Private Academic Institution. It is from the order dissolving the temporary restraining order, denying the preliminary injunction, and dismissing the complaint that A.T.O. now appeals.

A.T.O. frames its complaint in terms of having been denied its procedural due process and equal protection rights in violation of the Fourteenth Amendment to the Federal Constitution and of the state constitution. At the hearing on this matter, the University expressed an oral preliminary objection by which it ...


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