Appeal from the Orders of the Motions Commissioner of the Pennsylvania Human Relations Commission, in the cases of Shirley Harris, on behalf of her minor daughter, Catrina Harris v. John W. Hallahan High School, Docket No. P-2175; Vernell L. Sebrell, on behalf of his minor son, Philip Sebrell v. St. Stephen's School, Docket No. P-2416; Jose Torres, on behalf of his minor son, Michael Torres v. Northeast Catholic High School for Boys, Docket No. P-2636, and Delores T. Martin, on behalf of her minor daughter, Tonya James and others similarly situated v. Lansdale Catholic High School, Docket No. P-2691, dated November 23, 1987.
Philip J. Murren, Ball, Skelly, Murren & Connell, with him, Sandra A. Girifalco and James K. Grasty, Stradley, Ronon, Stevens and Young, for petitioners.
Theresa Homisak, Assistant Chief Counsel, for respondent.
President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and McGinley. Opinion by Judge Barry. Judge Doyle did not participate in the decision in this case. Dissenting Opinion by Judge Craig. Judge MacPhail joins in this dissent. Dissenting Opinion by Judge MacPhail. Judge Craig joins in this dissent.
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This case involves interlocutory orders of the Motions Commissioner of the Pennsylvania Human Relations Commission. The cases concern racial or ethnic discrimination allegedly perpetrated by Roman Catholic schools operated by the Roman Catholic Archdiocese of Philadelphia. The complaint at Docket No. P-2175,
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States. The appellee contends none of the incidents complained of concern or even touch upon matters peculiar to the religion of the operators of the schools and that the Commission is required by statute to accept such complaints, to embark on mandated investigation, and if appropriate to remedy the complained of practices. Appellee contends that the Pennsylvania Human Relations 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. Appellee further contends that the only exclusion that could be applicable to such institutions would require a showing that these schools are "distinctly private" which the appellants' church run schools cannot demonstrate.
At issue is Section 4(l) 43 P.S. Section 954(l) which states:
(l) The term 'public accommodation, resort or amusement' means any accommodation, resort or amusement which is open to, accepts or solicits the patronage of the general public, including but not limited to inns, taverns, roadhouses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restaurants or eating houses, or any place where food is sold for consumption on the premises, buffets, saloons, barrooms or any store, park or enclosure where spirituous or malt liquors are sold, ice cream parlors, confectioneries, soda fountains and all stores where ice cream and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises, drug stores, dispensaries, clinics, hospitals, bathhouses, swimming pools, barber shops, beauty parlors, retail stores and establishments, theatres, motion picture
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houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, gymnasiums, shooting galleries, billiard and pool parlors, public libraries, kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses and all educational institutions under the supervision of the Commonwealth, nonsectarian cemeteries, garages and all public conveyances operated on land or water or in the air as well as the stations, terminals and airports thereof, financial institutions and all Commonwealth facilities and services, including such facilities and services of all political subdivisions thereof, but shall not include any accommodations which are in their nature distinctly private.
We have set forth the entire text of the definition because in interpreting section 4 the long list of types of accommodation obviously does not say "parochial schools" and the legal maxim "expressio unius est exclusio alterius" may govern in this instance.
The Motions Commissioner in each of the four cases involved points out that appellants clearly acknowledge that students who are not Catholic are admitted into the schools and concludes that the schools are not "distinctly private".
The appellants in their brief counter-argue that the church-schools are the principal organs for the transmission of the Catholic faith to new generations of Catholics. They cite various documents of the Vatican II Council of 1965 and statements and publications of the Catholic Bishops of the United States Conference for this purpose. However, in the present posture of this case, where no testimony has been taken and we are concerned only with preliminary motions, the Court is
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not able to consider any of these sources which are not in evidence and which are not part of the record. We note, however, the case of Lemon v. Kurtzman, 403 U.S. 602 (1971), which involved the issue of whether the religion clauses of the First Amendment were violated by state statutes which provided state aid to church-related elementary and secondary schools, and to teachers therein, with regard to instruction in secular matters. Finding the statutes violated the First Amendment, the Court made the following observation on the findings of the district court which 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.
Lemon at 616. The concurring opinion of Mr. Justice Douglas, joined by Mr. Justice Black, also points out:
The analysis of the constitutional objections to these two state systems of grants to parochial or sectarian schools must start with the admitted and obvious fact the raison d'etre of ...