Argued: February 7, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE JULIA K. HEARTHWAY, Judge
case involves an issue of first impression, whether a
Catholic college's expulsion decision is reviewable by
the Pennsylvania Human Relations Commission (Commission). A
former African-American student, Allan-Michael Meads
(Student) filed a complaint with the Commission, alleging
Chestnut Hill College (College) expelled him based on racial
discrimination in violation of the Pennsylvania Human
Relations Act (Act) and the Pennsylvania Fair Educational
Opportunities Act (PFEOA). This Court granted College permission
to appeal from the Commission's interlocutory order that
denied a motion to dismiss premised on a lack of
jurisdiction. College argues the Commission lacks
jurisdiction because it is not a public accommodation;
rather, it is distinctly private based on its religious
nature. College also contends the religion clauses of the
First Amendment preclude the Commission from reviewing its
review, we affirm the denial of the motion to dismiss.
Further, we conclude College did not identify any religious
doctrine so as to trigger entanglement. Accordingly, we
remand the matter to the Commission.
was founded by the Sisters of Saint Joseph in 1924 as an
independent, non-profit educational institution affiliated
with the Catholic church. College is staffed by lay faculty
and the Sisters of St. Joseph. At least one-fifth, plus one,
of its Board of Directors is composed of members of the
Sisters of St. Joseph. The congregational president of the
Sisters of Saint Joseph serves as vice-chair of the Board.
Although College acquaints all students with Catholicism and
holds Catholic services that are open to all students,
students are not required to attend religious classes or
his senior year at College, Student collaborated with the
African-American Awareness Society and directed the first
African-American play at the College. He directed four plays
over three days during Black History Month in 2012. The
College hosted rehearsals and funded some play expenses.
Student advertised that proceeds would benefit the Lupus
Foundation of America (Foundation). Of the proceeds, Student
donated $500 to the Foundation, and he expended $800 for a
cast party. The total amount of the proceeds was unknown.
March 2012, College administrator Krista Murphy investigated
Student's use of the proceeds, alleging he improperly
retained them. Student provided receipts and his bank
statement. Nonetheless, College charged Student with theft
and forgery. The College held a hearing on the charges, in
which Student fully participated.
hearing officer recommended Student's expulsion for
misappropriation of funds. Student appealed the
recommendation to the College Appeals Board (Board).
interim, Student offered to pay restitution to the College in
any amount it believed he owed. College rejected his offer.
April 2012, the Board unanimously supported expulsion.
College found Student liable for theft and forgery and ruled
to permanently expel him. College ordered Student to pay $2,
248. After he paid the funds, College donated the funds to
expelled Student a few weeks before his scheduled graduation.
As a result of his expulsion, Student was unable to graduate,
he lost his employment as a resident assistant, he lost his
internship and he was evicted from his housing in Fitzsimmons
Student filed a complaint with the Commission against the
College, alleging his expulsion was based on his race in
violation of the Act.
Commission investigated whether Student's expulsion was a
pretext for discrimination. In the course of its
investigation, it reviewed the College's disciplinary
records from 2007 through 2012. The Commission determined
that African-American students were punished
disproportionately higher than other College students.
The College's Sanctions policy provides:
The following factors will be considered in determining
sanctions: present attitude, past record, both positive and
negative, the severity of the damage, injury harm or
disruption or the potential for such, the student's or
group's honesty, cooperation and willingness to make
Record (R.R.) at 332a. Student had no prior disciplinary
December 2015, the Commission found probable cause to credit
the racial discrimination claims in Student's complaint.
College filed an answer and new matter to the amended
complaint, which added violations of the PFEOA. Four years
later, in March 2016, after Student filed his complaint,
College challenged the Commission's jurisdiction
Motion, College argued the Commission lacked jurisdiction
because it was not a "public accommodation" under
the Act. College also asserted any adjudication would require
decisions regarding the application of the First Amendment,
which exceeded the Commission's subject matter
jurisdiction. College claims that by assuming jurisdiction,
the Commission jeopardizes its First Amendment rights.
Commission issued an interlocutory order denying the Motion
pursuant to 16 Pa. Code §42.131(c)(1) without granting a
stay (Interlocutory Order). In accordance with 42 Pa. C.S.
§702(b), it provided "this Interlocutory Order
involves both constitutional issues and a controlling
question of law as to which there is substantial ground for
difference of opinion, and that an immediate appeal may
materially advance termination of the matter." R.R. at
346a. College filed a petition for permission to appeal the
Interlocutory Order pursuant to Pa. R.A.P.
order dated July 26, 2016, this Court permitted appeal from
the Interlocutory Order. Specifically, this Court granted a
petition for permission to appeal limited to three questions:
1) Whether Catholic colleges and universities are 'public
accommodations' under the Act;
2) Whether the First Amendment of the U.S. Constitution
precludes application of the Act to discipline and expulsion
decisions of Catholic colleges and universities;
3) Whether the PFEOA is unconstitutional as applied to the
disciplinary and expulsion decisions of College as a Catholic
Id. We also stayed the matter before the Commission
pending resolution of this appeal. Student intervened. The
Commission and Student sought reconsideration of our July
26th Order, which we denied.
Philadelphia Commission on Human Relations filed a
friend-of-the-court brief supporting the Commission. After
briefing, the matter is now ready for disposition.
argues it is not a public accommodation under the Act;
rather, it is distinctly private as a Catholic institution.
Consequently, it is not subject to jurisdiction of the
Commission. Further, College asserts that because
Student's claims implicate religious entanglement under
the First Amendment, the Commission lacks subject matter
jurisdiction. In addition, College contends Student's
claims under PFEOA are time-barred.
Commission counters that College did not properly appeal to
this Court, and it challenges our jurisdiction to address a
non-final order. The Commission emphasizes that the Act and
the PFEOA are both neutral antidiscrimination laws. Also, the
Commission asserts the First Amendment is not a
jurisdictional bar; rather, it offers an affirmative defense.
Since College did not timely raise it, the Commission
contends the defense is waived.
asserts College is a public accommodation because it is open
to the general public. Further, he argues the Act and PFEOA
do not violate the First Amendment. He contends the
resolution of this case does not involve issues of Catholic
doctrine so as to lead to entanglement between church and
state. Student also argues the First Amendment does not bar
decisions on racial discrimination claims because elimination
of racial discrimination is of paramount concern.
outset, we address the Commission's challenge to our
jurisdiction to review the Interlocutory Order. The
Commission claims our review is limited to only final orders
under Pa. R.A.P. 341. In so doing, the Commission ignores the
procedural posture of this appeal, whereby this Court
undertook review of the Interlocutory Order by permission
pursuant to Pa. R.A.P. 1311.
the Commission claims that College did not satisfy the
criteria of Rule 1311(b) because it did not seek an amendment
of the Interlocutory Order. This argument presumes such an
amendment was necessary. An interlocutory order may be
appealed by permission provided it contains the statement
required by 42 Pa. C.S. §702(b). Section 702(b) of the
Judicial Code provides:
When a court or other government unit, in making an
interlocutory order in a matter in which its final order
would be within the jurisdiction of an appellate court, shall
be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the
matter, it shall so state in such order. The appellate
court may thereupon, in its discretion, permit an appeal to
be taken from such interlocutory order.
42 Pa. C.S. §702(b) (emphasis added). Rule 1311(b) does
not require a party to apply for amendment of an order unless
such a statement is missing.
the Interlocutory Order contained the requisite statement.
R.R. at 346a. Thus, we may assume jurisdiction over