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decided: May 28, 1987.


Appeal from the Order of the Pennsylvania Commonwealth Court dated January 31, 1986, Entered at No. 1695 C.D. 1985. Commonwealth Court Opinion Not Reported.


Elisabeth S. Shuster, General Counsel, Harrisburg, Michael Hardiman, Asst. Gen. Counsel, Philadelphia, for appellant.

Jeffrey L. Pettit, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., files a dissenting opinion, in which Zappala and Papadakos, JJ., join. Zappala, J., files a dissenting opinion.

Author: Hutchinson

[ 515 Pa. Page 2]


The Pennsylvania Human Relations Commission (Commission) appeals an order of Commonwealth Court denying

[ 515 Pa. Page 3]

    the Commission's petition for enforcement of a subpoena duces tecum. The Commission sought to compel appellee, the Lansdowne Swim Club (Swim Club), to provide various documents it had subpoenaed during its investigation of a complaint of racial discrimination filed against the Swim Club under the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, §§ 1-13, as amended, 43 P.S. §§ 951-963. Commonwealth Court determined that the Commission was bound by its decision to dismiss a previous case against the Swim Club. In dismissing that case, which involved a complaint of racial discrimination filed by a different party, the Commission said the Swim Club was not a place of public accommodation over which the Commission would have jurisdiction. Commonwealth Court declined to enforce the subpoena issued in the present case, apparently holding the Commission was precluded from questioning the Swim Club's private status and thus was not entitled to the subpoenaed materials.

We disagree and hold that the question of the Commission's jurisdiction is to be resolved initially by the Commission during an investigation authorized under the Act. Commonwealth Court erred in usurping this function and in concluding prematurely that the Commission lacked jurisdiction. We therefore reverse the order of Commonwealth Court and remand for further proceedings in conformity with this opinion.

The complaint in this case was filed on July 23, 1984, by James T. Ryan, a resident of Lansdowne, on behalf of himself and his minor children, Maria Ramona, Teresa and Ramon. The Ryan complaint alleges that the Swim Club's denial of their application for family membership in the Club was based on race, color or ancestry and hence was discriminatory. Mr. and Mrs. Ryan are white; Maria Ramona is of Puerto Rican ancestry, and Teresa and Ramon are of black and hispanic ancestry.

In August, 1984, the Swim Club filed an Answer and Motion to Dismiss Complaint with the Commission. In October, 1984, the Commission issued an order denying this

[ 515 Pa. Page 4]

    motion. By letter dated November 13, 1984, the Commission requested the Swim Club to provide certain data and documents. In December, 1984, the Swim Club forwarded a "partial response" to this request. The Commission issued its subpoena duces tecum on January 16, 1985. The Swim Club responded in February, 1985, objecting to the subpoena on the grounds of relevancy, confidentiality and the Commission's lack of jurisdiction in the matter. On April 3, 1985, the Commission issued an order overruling these objections and requiring production of the subpoenaed documents within twenty days. The Swim Club again declined to produce the documents, and the Commission responded by filing its Petition for Enforcement of Subpoena in Commonwealth Court.

Commonwealth Court held an evidentiary hearing on the enforcement petition in October, 1985, during which the Commission produced both testimonial and documentary evidence in support of its petition. The Swim Club called as its only witness the President of the Club, who testified regarding the Club's organization and membership process. In January, 1986, Commonwealth Court issued its order denying the petition for enforcement of the Commission's subpoena.


At the threshold, we must determine whether the Commission is entitled to appellate jurisdiction in this matter as of right, or only by discretion. We hold that jurisdiction on this appeal from Commonwealth Court is vested in this Court as of right pursuant to Section 723(a) of the Judicial Code. That section gives us exclusive jurisdiction of appeals from final orders entered in any matter originally commenced in Commonwealth Court, "except an order entered in a matter which constitutes an appeal" to that court. 42 Pa.C.S. § 723(a). Our jurisdiction over appeals such as this one involving a ...

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