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Fulton v. City of Philadelphia

United States District Court, E.D. Pennsylvania

July 13, 2018

SHARONELL FULTON, et al., Plaintiffs,
v.
CITY OF PHILADELPHIA, et al., Defendants.

          MEMORANDUM

          Tucker, J.

         The gratitude we owe to all those working to better the lives of Philadelphia's most vulnerable children is too great to convey in words. While our gratitude is ultimately ineffable, the Court still begins by recognizing the Parties in this case for their many years of sacrifice and labor. The Court thanks Sharonell Fulton, Cecelia Paul, Toni Lynn Simms-Busch, Catholic Social Services (“CSS”), the City of Philadelphia, the Department of Human Services (“DHS”), and the Commission on Human Relations for their individual sacrifices and contributions in service of Philadelphia's children and its families. As witnesses called to testify in this case have made clear, fostering children is challenging work, but challenging work that can form part of a full and good life.

         Until recent events, the Parties have had a fruitful relationship; a relationship that has benefited Philadelphia's children in immeasurable ways. For this reason, the Court would prefer that the Parties seek out some compromise to their current dispute without court intervention. Creative problem solving through concerted and thoughtful discourse without court intervention is often the best method to avoid what may appear to the parties, or to other persons in the public, to be harsh legal results. Still, when parties place a matter before the Court, the Court must act pursuant to its obligations under the law. Accordingly, the Court turns to the legal matter presented in this case.

         Before the Court are Plaintiffs' Motion For A Temporary Restraining Order And Preliminary Injunction (“Injunction Motion”) (ECF No. 13), [1] The City Of Philadelphia's Memorandum Of Law In Opposition To Plaintiffs' Motion For Temporary Restraining Order And Preliminary Injunction (ECF No. 21), Proposed Intervenors' Memorandum of Law, Or, In The Alternative, Amicus Brief, In Opposition To Plaintiffs' Motion For A Temporary Restraining Order And Preliminary Injunction (“Amicus Brief”) (ECF No. 34);[2] Defendants' Proposed Findings Of Facts And Conclusions Of Law (ECF No. 45), and Plaintiffs' Proposed Findings Of Fact And Conclusions of Law (ECF No. 46). Upon careful consideration of the foregoing and all the evidence presented by the Parties in their written submissions and the evidentiary hearing held on June 18, 2018, June 19, 2018, and June 21, 2018, for the reasons explained below, Plaintiffs' Injunction Motion (ECF No. 13) is DENIED.

         I. PROCEDURAL BACKGROUND

         On May 17, 2018, Plaintiffs asserted sixteen causes of action against Defendants related to, among other things, Defendants' suspension of referrals of new children to Plaintiffs' care and Defendants' alleged violations of Plaintiffs' religious and free speech rights. See generally Compl., ECF No. 1; but see Mem. of Law Supp. Pl.s' Injunction Mot. 8 (asserting that CSS “filed a complaint in this Court on May 16, 2018”). Nineteen days later, [3] on June 5, 2018, Plaintiffs filed their Injunction Motion seeking a court order to compel Defendants to resume referrals of children to Plaintiffs' care in advance of the June 30 expiration of Plaintiffs' current services contract with Defendants under which Plaintiffs provide various professional services in exchange for public funds. In view of the urgency of the matter, the Court set an expedited briefing schedule and ordered an evidentiary hearing. Jun. 6, 2018 Order, ECF No. 11. Less than two weeks later, on June 18, 2018, the Court held an evidentiary hearing. The hearing concluded on June 21, 2018.[4]

         II. FACTUAL BACKGROUND[5]

         A. CSS's Services Contract With DHS And Philadelphia

         It is an intractable tragedy that children in our community are sometimes unable to remain in their own homes. Pennsylvania has, in response to this tragic reality, charged individual county agencies with the duty of establishing a system to address the well-being of these children consistent with the best interests of each child. Jun. 19, 2018 Hr'g Tr. 152:18-24 (Figueroa). In Philadelphia County, the county agency charged with this duty is DHS. In performing its duty, DHS contracts with a number of private foster care agencies. Jun. 18, 2018 Hr'g Tr. 87:2-4 (Ali). Presently, DHS has contracts with thirty private foster care agencies. Jun. 19, 2018 Hr'g Tr. 155:14-16 (Figueroa). Each of these private foster care agencies is expected to provide foster care services consistent with a services contract with DHS. See, e.g., Jun. 19, 2018 Hr'g Tr. 162:2 - 12 (Figueroa) (indicating that CSS's services, as a foster agency, are provided under contract with DHS and Philadelphia); Jun. 21, 2018 Hr'g Tr. 12:15-16 (Figueroa) (indicating that Bethany Christian Services, another foster agency, has a contract similar to the services contract between DHS and CSS).

         In November 2015, DHS and CSS entered into Contract Number 16-20030 (“Services Contract”) for certain professional services. Decl. of James Amato Ex. A, ECF p. 13 of 52, ECF No. 13-3 (showing that the original contract was executed in November 2015 and recounting the various amendments since initial execution); see also Decl. of James Amato Ex. A, ECF p. 39 of 52, ECF No. 13-3 (identifying the Services Contract as a “Professional Services Contract . . . for Department of Human Services Contracts”). As provided in the Statement of Purpose section of the Services Contract, the Services Contract was:

made and entered into between Catholic Social Services (the Provider) and the Philadelphia Department of Human Services (DHS), and sets forth the services for general, kinship, and teen parent/baby resource home care.

Decl. of James Amato Ex. A, ECF p. 27 of 52, ECF No. 13-3. Under the Scope of Services section of the Services Contract, CSS was to ensure that, among other things, resource caregivers (foster parents) would be “screened, trained, and certified by the Provider [CSS].”[6] Decl. of James Amato Ex. A, ECF p. 28-29 of 52, ECF No. 13-3. The Services Contract reiterates that “[t]he specific issue to be addressed by [CSS] is to recruit, screen, train, and provide certified resource care homes.” Decl. of James Amato Ex. A, ECF p. 28 of 52, ECF No. 13-3.

         CSS was to provide the services set forth under the Scope of Services section of the Services Contract in accordance with certain criteria, including criteria under Section 3.21 of the Services Contracts' General Provisions and Article XV: Additional Representations and Covenants of Provider Relating to Certain Applicable Laws.

         Section 3.21 limits the reasons that CSS may refuse to provide the services required under the Services Contract. Section 3.21 provides that CSS:

shall not reject a child or family for Services based upon the location or condition of the family's residence, their environmental or social condition, or for any other reason if the profiles of such child or family are consistent with Provider's Scope of Services or DHS's applicable standards as listed in the [Services Contract], unless an exception is granted by the Commissioner or the Commissioner's designee, in his/her sole discretion.

Decl. of James Amato Ex. B, ECF p. 14 of 39, ECF No. 13-4.

         Article XV of the Services Contract further limits the reasons that CSS may refuse to provide the services required under the Services Contract by incorporating into the Services Contract various laws, ordinances, regulations, and executive orders. In particular, Article XV incorporates provisions of the Philadelphia Fair Practices Ordinance relating to non-discrimination and serving all-comers who might seek services from CSS. Article XV stipulates that:

. . . . Provider further represents, warrants and covenants that . . . Provider is in compliance with the laws, ordinances, regulations and executive orders described below.
15.1 Non-Discrimination; Fair Practices. This Contract is entered into under the terms of the Charter, the Fair Practices Ordinance (Chapter 9-1100 of the Code) . . . . Provider shall not discriminate or permit discrimination against any individual because of race, color, religion or national origin. Nor shall Provider discriminate or permit discrimination against individuals in . . . public accommodation[7] practices whether by direct or indirect practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, differentiation or preference in the treatment of a person on the basis of . . . sex, sexual orientation, gender identity, marital status, familiar [sic] status . . . or engage in any other act or practice made unlawful under the Charter . . . .

Decl. of James Amato Ex. C, ECF p. 18-19 of 39, ECF No. 13-5 (emphasis added). In the event of CSS's breach of its covenant under Article XV, DHS and Philadelphia would be permitted “in addition to any other rights or remedies available under this Contract, at law or in equity, [to] suspend or terminate this Contract forthwith.” Decl. of James Amato Ex. C, ECF p. 19 of 39, ECF No. 13-5.

         In exchange for “the Services and Materials being provided under” the Services Contract, DHS and Philadelphia agreed to “set the amount of compensation payable to [CSS] for the current contract term at [$19, 430, 999.00].” Decl. of James Amato Ex. A, ECF p. 15 of 52, ECF No. 13-3. Despite this lump sum amount, as a matter of practice, payment to CSS was made on a per diem basis pegged to the number of children under its care. See Jun. 21, 2018 Hr'g Tr. 11:4-7 (Figueroa) (testifying that many contractors are paid on a per diem basis); Jun. 21, 2018 Hr'g Tr. 139:20-24 (same) (Figueroa). That CSS was receiving significant public funds to perform its public service functions under the Services Contract is underscored by Section 3.30 of the General Provisions that provides “[CSS] shall identify the Department as a funding source in all literature, documents[, ] reports or pamphlets which Provider publishes develops or produces in connection with this Contract.” Decl. of James Amato Ex. B, ECF p. 21 of 39, ECF No. 13-4.

         CSS and DHS proceeded under the Services Contract without dispute until March 2018, when DHS learned that it is CSS policy to not serve all-comers. In particular, it is CSS policy to refuse service to same-sex couples CSS services under the Services Contract.

         B. March 2018: DHS Learns Of CSS's And Another Foster Agency's Refusal To Comply With Services Contract's All-Comers Provisions

         On or about March 9, 2018, DHS Commissioner Figueroa came to believe that two of the foster care agencies with which DHS contracts, CSS and Bethany Christian Services, have policies that deny their publicly-funded services to married same-sex couples. Jun. 21, 2018 Hr'g Tr. 3 (Figueroa) (testifying that on March 9, 2010, a reporter contacted Figueroa and that Figueroa's discussions with the reporter led Figueroa to believe that CSS and Bethany Christian Services had certain policies of refusing service to same-sex couples). Jun. 19, 2018 Hr'g Tr. 164 (Figueroa). Commissioner Figueroa formed this belief after discussions with a Philadelphia Inquirer reporter who called Figueroa seeking comment ahead of the publication of an article on two DHS foster care agencies that reportedly maintained policies that would effectively permit these agencies to refuse services to same-sex couples. Jun. 19, 2018 Hr'g Tr. 164 (Figueroa). After Commissioner Figueroa's discussion with the reporter, Figueroa contacted Bethany Christian Services, CSS, various DHS's faith-based foster care agencies, and a nonfaith-based agency to determine what those agencies' policies are in connection with serving same-sex couples. Jun. 19, 2018 Hr'g Tr. 164:16-165:4 (Figueroa); Jun. 21, 2018 Hr'g Tr. 103:6-9 (testifying that Figueroa contacted a nonfaith-based foster care agency).

         Commissioner Figueroa's phone call with James Amato at CSS provided greater clarity regarding what services CSS refused to provide to same-sex couples and why CSS refused to provide those services. Jun. 21, 2018 Hr'g Tr. 3:18-24 (Figueroa). James Amato explained that there were two services that CSS would not provide to same-sex couples: (1) CSS would not certify same-sex couples as prospective foster parents even if the couples were otherwise eligible foster parents under state regulations, and (2) CSS would not provide a same-sex couple with a home study as part of a same-sex couple's application for adoption. Jun. 21, 2018 Hr'g Tr. 3:18-24 (Figueroa); see also Jun. 19, 2018 Hr'g Tr. 55:7-20 (Amato) (testifying that Commissioner Figueroa and another DHS officer asked Amato whether CSS would complete a home study for “a same-sex couple or individual” and that Amato confirmed that CSS would not complete such a home study for a couple and would only provide a home study for an individual if that individual was committed to living single). Amato explained that CSS would not provide these services on religious grounds. Jun. 21, 2018 Hr'g Tr. 3:18-24 (Figueroa). Amato recalled that DHS “said to me that you are discriminating. I said that I am following the teachings of the Catholic Church.” Jun. 19, 2018 Hr'g Tr. 55:22-25 (Amato).

         On March 13, 2018, the Philadelphia Inquirer published an article titled Two Foster Agencies in Philly Won't Place Kids with LGBTQ People.[8] The article recounted an incident in which a married same-sex couple traveled to a Bethany Christian Services informational event for prospective foster parents. On arrival, a Bethany Christian Services employee told the couple their attendance at the event would be a waste of time because Bethany Christian Services maintained a policy of refusing to serve same-sex couples. See also Jun. 19, 2018 Hr'g Tr. 164:5-10 (Figueroa). In the same story, the Inquirer reported that a representative for CSS confirmed that CSS maintained similar policies of refusing to serve same-sex couples.

         On March 15, 2018, after meeting with James Amato and CSS's legal counsel in person, Commissioner Figueroa “decided that it was in the best interest [of children] to close intake, so that [Figueroa] could look more deeply into” CSS's and Bethany Christian Services's policies. Jun. 19, 2018 Hr'g Tr. 166:6-21 (Figueroa); Figueroa Decl. ¶ 32, ECF No. 20-6; see also Jun. 18, 2018 Hr'g Tr. 96:2-3 (Ali) (testifying that, to Ali's knowledge, Commissioner Figueroa herself decided to close CSS's intake of new referrals). That day, Philadelphia City Council separately passed its own resolution authorizing the Committee on Public Health and Human Services to “investigate [DHS] policies on contracting with social services agencies that either discriminate against prospective LGBTQ foster parents and allow non-LGBTQ foster parents to discriminate against children.” City Council Resolution No. 180252 at 2, ECF No. 10-9.

         On March 27, 2018, Deputy Commissioner Ali emailed various community umbrella agencies-responsible for case management activities-to communicate that foster agencies should “refrain from making any foster care referrals to Bethany Christian Services and [CSS], ” but “[i]f you have questions about a case, please contact me by phone or email.” Ex. 1-E 3, ECF No. 10-12. Deputy Commissioner Ali further communicated that DHS is:

Committed to the safety and stability of children in our care and must consider the needs of the children and youth currently served by foster families licensed by these organizations. Our goal is to minimize placement disruptions, and to ensure that a child's ability to reunify or to continue an adoption process is not delayed because of placement disruption.

Ex. 1-E 3, ECF No. 10-12.

         C. Doe Foster Child #1

         Plaintiffs spent some time at the evidentiary hearing exploring a situation involving a minor child identified as Doe Foster Child #1. Plaintiffs point to the situation involving Doe Foster Child #1 as an “example of the harm that has resulted from the City's intake closure.” Pls.' Proposed Findings of Fact and Conclusions of Law 27, ECF No. 46. The circumstances surrounding Doe Foster Child #1 are, as is often the case for children in foster care, complex. The Court notes, however, that by the time of the evidentiary hearing, DHS and CSS, working together, successfully obtained a Philadelphia Family Court order permitting Doe Foster Child #1's removal from a different living situation and then placement with a CSS-certified foster parent. Ali Decl. ¶ 60, ECF No. 20-1. Through the concerted efforts of DHS and CSS staff, the situation involving Doe Foster Child #1 is now resolved.

         Still, Plaintiffs contend that the situation with Doe Foster Child #1 would not have occurred but for DHS's closure of CSS's intake of new referrals, while DHS and Philadelphia contend that Doe Foster Child #1's unique situation was resolved in a timely manner considering the complexity of the case. As a factual matter, the situation with Doe Foster Child #1 is unlikely to occur again given that DHS and CSS are both now fully aware that exemptions from the intake closure have been and continue to be granted consistent with the best interests of individual children. See, e.g., Jun. 19, 2018 Hr'g Tr. 84:2-9 (Amato) (testifying that he is aware that DHS will grant exceptions in some cases for placements with Catholic Social Services when such placements are in the best interests of the child); Jun. 19, 2018 Hr'g Tr. 86:8 - 11 (Amato) (testifying that CSS has, in fact, sought out and received placements for children despite the intake closure when placements were in the best interests of the child).

         D. Current Effects Of Closure Of CSS Intake Of New Referrals

         In response to Plaintiffs' claims that CSS's intake closure has and will continue to negatively affect foster children, DHS offered evidence showing that the closure of CSS's intake of new referrals has had little or no effect on the operation of Philadelphia's foster care system. DHS Commissioner Figueroa testified that CSS's intake closure “has not resulted in a rise in children placed in congregate care.”[9] Jun. 21, 2018 Hr'g Tr. 86:4-87:9 (Figueroa). Further, Figueroa testified that CSS's intake closure “has not resulted in a rise in children staying in DHS's childcare room.” Jun. 21, 2018 Hr'g Tr. 86:4-87:9 (Figueroa). Figueroa's testimony was based on her review of “weekly data” that Figueroa receives from DHS's “performance and technology team that . . . have . . . detailed data.” Jun. 21, 2018 Hr'g Tr. 86:16-87:11

         (Figueroa).

         That the effects of closing CSS's intake have been small relative to size and breadth of the Philadelphia foster care system is, unfortunate, but unsurprising given Commissioner Figueroa's explanation that:

Kids are abused every day. They are neglected every day. They end up in [DHS's] placement, in [DHS's] care, because their families can't care for them. We are incredibly fortunate that we have foster care agencies, but it's not a one to one.

Jun. 21, 2018 Hr'g Tr. 93:23-94:7 (Figueroa). The number of cases and idiosyncrasies of each child involved in each case means that the mere fact that there are empty, available foster homes does not equate to fewer children in congregate care. Figueroa explained that assuming that “availability [at any one foster agency] [will] reduce the [use of] congregate care is an over [simplification] of the complication of our work.” Jun. 21, 2018 Hr'g Tr. 93:23-94:7 (Figueroa). That the negative effects of closing CSS's intake have been relatively slight is also supported by the reality that, as of the evidentiary hearing date, at least three foster agencies had intake closures in place and the foster system nevertheless remained stable. See Jun. 21, 2018 Hr'g Tr. 5:14-15 (Figueroa) (testifying that “I have closed intake in other circumstances for other providers.”); Jun. 21, 2018 Tr. 8:24-25-9:1 (Figueroa) (testifying that the week before, DHS also closed intake for another agency); Jun. 21, 2018 Hr'g Tr. 12:9-21 (Figueroa) (testifying that Bethany Christian Services's intake remained closed as of June 21).

         E. Defendants' Preference To Continue Work With CSS And Offer Of New Contracts

         DHS and Philadelphia have explicitly stated a preference for continuing their relationship with CSS, despite CSS's religious nature, so long as CSS complies with its contract responsibilities. See, e.g., Jun. 21, 2018 Hr'g Tr. 9:18-24 (Figueroa) (indicating that DHS would prefer to continue contracting with CSS); Jun. 19, 2018 Hr'g Tr. 120:7 - 11 (Amato) (testifying that DHS and Philadelphia were clear that they did “not plan to agree to any further referrals to CSS . . . absent assurances that CSS is prepared to adhere to contractual obligations). Indeed, DHS and Philadelphia manifested their preference to continue working with CSS by offering CSS two different renewal services contracts. See, e.g., Jun. 21, 2018 Hr'g Tr. 10:1-10 (Figueroa). The first contract would be a renewal on the same terms as CSS's current Services Contract. The second contract would be an alternate services contract to provide financial support to CSS even if CSS could not agree to certify same-sex couples consistent with the allcomers provisions of the standard services contract . See, e.g., Jun. 21, 2018 Hr'g Tr. 10:5-10. Such alternate contracts have been provided to other foster care agencies in the past to ensure the best interest of foster children. See, e.g., Jun. 21, 2018 Hr'g Tr. 10:20-11:16 (Figueroa). That Defendants have offered two contracts to CSS despite the Parties' present dispute shows Defendants' strong desire to keep CSS as a foster care agency.

         III. STANDARD OF REVIEW

         A. Temporary Restraining Order and Preliminary Injunctive Relief Factors

         A preliminary injunction is “an extraordinary remedy never awarded as of right.” Groupe SEB USA, Inc. v. Euro-Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). Preliminary injunctive relief is appropriate only “upon a clear showing that the plaintiff is entitled to such relief.” Id. (citing Winter, 555 U.S. at 22). Ultimately, “the decision to grant or deny a preliminary injunction is committed to the sound discretion of the district court.” United States v. Price, 688 F.2d 204, 210 (3d Cir. 1982) (citing Stokes v. Williams, 226 F. 148, 156 (3d Cir. 1915)). In deciding whether to grant injunctive relief, the Court must consider whether: (1) Plaintiffs have demonstrated a likelihood of success on the merits; (2) Plaintiffs will be irreparably harmed by the denial of injunctive relief; (3) the balance of equities favors Plaintiffs; and (4) the public interest favors granting the injunction. See, e.g., Del. Strong Families v. Att'y Gen. of Del., 793 F.3d 304, 308 (3d Cir. 2015).[10]

         The Third Circuit has explained that the first two factors of this analysis-likelihood of success on the merits, and irreparable harm-act as “gateway factors.” Reilly v. City of Harrisburg, 858 F.3d 173, 180 (3d Cir. 2017). Accordingly, when confronted by a motion for preliminary injunctive relief, a court must first determine whether the movant has met these two gateway factors before considering the remaining two factors-balance of harms, and public interest. Id. at 179. In short, “[i]f these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.” Id.

         Esteemed jurists have acknowledged that the existence of complex questions of law and disputed matters of fact at the preliminary injunction phase of a case may create “doubt about the probability of [a] plaintiff's success to justify denying a preliminary injunction.” Transcon. Gas Pipe Line Co. v. Permanent Easements for 2.14 Acres & Temp. Easements for 3.59 Acres in Conestoga Twp., Lancaster Cty., Pa., No. 5:17-CV-00715, 2017 WL 1283948, at *5 (E.D. Pa. Apr. 6, 2017) (citing St. John of Jerusalem-Knights of Malta v. Messineo, 572 F.Supp. 983, 990 (E.D. Pa. 1983)). Indeed, in Transcon. Gas Pipe Line Co., the district court collected a number of cases supporting this general proposition. 2017 WL 1283948, at *5 (citing La Chemise Lacoste v. General Mills, Inc., 53 F.R.D. 596, 605 (D. Del. 1971) for the proposition that “[a] Court should not decide doubtful and difficult questions on a motion for a preliminary injunction.”); see also Id. (citing Coffee Dan's, Inc. v. Coffee Don's Charcoal Broiler, 305 F.Supp. 1210, 1213 (N.D. Cal. 1969) for the proposition that “[o]n an application for a preliminary injunction the court is not bound to decide doubtful and difficult questions of law or disputed questions of fact.”).

         Although there exists, in this case, a myriad of complex questions of law and a great number of disputed facts such that the Court could justifiably deny injunctive relief on these grounds alone, the Court nevertheless engages in the preliminary injunction analysis below to ensure that the reasons for the Court's decision are sufficiently articulated for the Parties.

         IV. DISCUSSION AND CONCLUSIONS OF LAW [11]

         A. Factual Precedent: Faith-Based Foster Agencies In Other Jurisdictions

         At the outset, the Court notes that while precise legal precedent on the issues raised in this case is absent, there exists some factual precedent. In 2006, for example, in the wake of Massachusetts's legalization of same-sex marriages, Catholic Charities in Boston shut down its foster care agency after it unsuccessfully sought permission from Massachusetts to withhold its services from legally married same-sex couples.[12]

         In 2010, Catholic Charities in Washington, DC, like Catholic Charities in Boston, ended its foster care program in response to Washington, DC's legislation to legalize same-sex marriage.[13] As a result, “Catholic Charities' caseload of 43 children and 35 foster families was transferred, along with seven staffers, to the Bethesda, Md.-based National Center for Children and Families so as not to disrupt client care.”[14]

         In 2011, Catholic Charities in Illinois sued, among others, the State of Illinois after the State indicated that it would not renew its foster care contract with Catholic Charities because Catholic Charities' “failure to provide services to unmarried cohabiting couples was in direct violation of” state law. Summary Judgment Order 2, Catholic Charities of the Diocese of Springfield v. Madigan, No. 2011-MR-254 (Ill. Cir. Ct. Aug. 18, 2011). The Sangamon County Circuit Court granted the State's Cross Motion for Summary Judgment on grounds that Catholic Charities had no cognizable right to a state government services contract. The court reasoned that Catholic Charities did “not have a legally recognized protected property interest in the renewal of its contracts for foster care and adoption services . . . . [and] [t]he fact that [Catholic Charities] have contracted with the State to provide foster care and adoption services for over forty years does not vest the Plaintiffs with a protected property interest.” Id. After the Sangamon County Circuit Court's decision, Catholic Charities in Illinois ended its foster care and adoption services and agreed to transfer “more than 1, 000 foster care children and staff to other agencies in their regions.”[15]

         In 2006, in contrast to the decisions by Catholic Charities in Boston, Washington, DC, and Illinois to end its foster care services, Catholic Charities in San Francisco chose to end its full service adoption agency to avoid providing services to same sex couples, but otherwise planned to “provide staff and financial resources to connect needy children to adoptive parents, ” and formally collaborate with other adoption agencies who can provide full services to allcomers without violating San Francisco's anti-discrimination efforts.[16]

         Against this backdrop, the Court turns to the Parties' legal arguments.

         B. Services Contract Requires Contractors To Provide Services Consistent With Fair Practices Ordinance

         1.The Unambiguous Terms Of The Services Contract Evinces The Parties' Intent That The Fair Practices Ordinance Apply To CSS's Services

         As a threshold matter, the Parties disagree on whether the Services Contract requires CSS to provide its services to all-comers in accordance with the Fair Practices Ordinance because such services may or may not constitute a “public accommodation.” While briefing on this issue is scant, the Parties expended significant time arguing this issue at the evidentiary hearing. See, e.g., Jun. 18, 2018 Hr'g Tr. 9:17-12:14 (Plaintiffs' Opening Statement); see also Pls.' Proposed Findings of Fact and Conclusions of Law ¶¶ 61-65. In view of the plain terms of CSS's covenant to be bound by the Fair Practices Ordinance as set forth in the Services Contract, and in view of the expansive, but plain, definition of “public accommodations” under the Fair Practices Ordinance, the Court concludes that the Fair Practices Ordinance applies to CSS's provision of services under the Services Contract.

         It is well-established that:

[c]ontract interpretation is a question of law that requires the court to ascertain and give effect to the intent of the contracting parties as embodied in the written agreement. Courts assume that a contract's language is chosen carefully and that the parties are mindful of the meaning of the language used. When a writing is clear and unequivocal, its meaning must be determined by its contents alone.

Old Summit Mfg., LLC v. Pennsummit Tubular, LLC (In re Old Summit Mfg., LLC), 523 F.3d 134, 137 (3d Cir. 2008) (citing Dep't of Transp. v. Pa. Indus. for the Blind and Handicapped, 886 A.2d 706, 711 (Pa. Commw. Ct. 2008)); see also D&M Sales, Inc. v. Lorillard Tobacco Co., No. CIV.A.09-2644, 2010 WL 786550, at *3 (E.D. Pa. Mar. 8, 2010) (providing that “the court's goal is ‘to ascertain and give effect to the intent of the contracting parties, '” and “[w]hen the words of an agreement are clear and unambiguous, the court will ascertain the intent of the parties from the language used in the agreement.”).

         In this case, the Parties' intent that the Fair Practices Ordinance apply to CSS's services is manifest by the clear and unequivocal terms of the Services Contract. In entering into the Services Contract, CSS agreed to the provisions enumerated under Article XV. CSS explicitly “represent[ed], warrant[ed], and covenant[ed] that . . . [CSS was] in compliance with . . . . the Fair Practices Ordinance.” Decl. of James Amato Ex. C, ECF p. 18-19 of 39, ECF No. 13-5. Accordingly, the plain terms of the Services Contract manifest the Parties' intent that CSS be bound by the Fair Practices Ordinance by expressly incorporating the Fair Practices Ordinance into the Services Contract.

         Having concluded that the Services Contract evinces the Parties' intent that the Fair Practices Ordinance apply to CSS's services rendered under the Services Contract, the Court turns to the issue of whether the Fair Practices Ordinance would require CSS to provide foster parent certifications and home visits for prospective parents in accordance with the all-comers/nondiscrimination provisions of the Fair Practices Ordinance. The resolution of this issue turns on two questions: (1) whether CSS's scope of services includes the provision of certification and home visits in connection with certification in the first instance, and (2) if so, whether those services fall within the meaning of a public accommodation under the Fair Practices Ordinance.

         2.CSS's Scope Of Services Requires CSS To Recruit, Screen, Train, And Certify Resource Caregivers

         Here, as with all questions of parties' obligations under a contract, the Court must look to the intent of the parties as embodied in the plain and unambiguous terms of the contract. In agreeing to perform the Scope of Services under the Services Contract, CSS agreed to “recruit, screen, train, and provide certified resource care homes.” Decl. of James Amato Ex. A, ECF p. 28 of 52, ECF No. 13-3. Indeed, CSS's obligation to recruit, screen, train, and certify resource caregivers is emphasized elsewhere in the Scope of Services. Decl. of James Amato Ex. A, ECF p. 28-29 of 52, ECF No. 13-3 (providing that “resource caregivers are screened, trained, and certified by [CSS]”); see also Decl. of James Amato Ex. A, ECF p. 27 of 52 n.1, ECF No. 13-3 (providing under the “Statement of Purpose” that “Provider Staff is responsible for recruiting and certifying foster and kinship homes”). The Court concludes that CSS's certification of prospective foster parents and CSS's provision of home studies “to assure [that prospective foster parents] are qualified and well prepared for the responsibility of foster care”[17] are services that CSS agreed to provide under the Services Contract.

         Having determined that certification and home studies are services that CSS was hired to provide under the Services Contract, the Court turns to whether these services constitute “public accommodations” under the Fair Practices Ordinance such that CSS's provision of these services must be rendered in accordance with the all-comers, anti-discrimination provision of the Fair Practices Ordinance.

         3.The Services That CSS Provides Are Public Accommodations Within The Meaning Of The Fair Practices Ordinance

         In interpreting a municipal ordinance, a court must employ the same analysis that the court employs when interpreting a statute. Tri-Cty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 509 (Pa. Commw. Ct. 2014); see also Diehl v. City of McKeesport, 432 A.2d 288, 290 (Pa. Commw. Ct. 1981) (providing that “[t]he rules of statutory construction are applicable to statutes and ordinances alike”). Accordingly, when interpreting an ordinance, a court must determine, as it must when interpreting a statute, the intent of the legislative body that enacted the ordinance. See Tri-Cty. Landfill, Inc., 83 A.3d at 509 (citing 1 Pa. Cons. Stat. § 1921). Generally, the best indicator of the legislative body's intent is the plain language of the ordinance. Id.

         The Fair Practices Ordinance provides an expansive, but plain definition of the term “public accommodation.” Under the Fair Practices Ordinance, a public accommodation is:

Any [] provider, whether licensed or not, which solicits or accepts patronage or trade of the public or whose . . . services, facilities . . . are extended, offered [] or otherwise made available to the public; including all . . . services provided by any public agency or authority; any agency, authority or other instrumentality of . . . the City, its departments, boards and commissions.

         Philadelphia Fair Practices Ordinance § 9-1102 (Definitions) at 4, Chapter 9-1100 of the Philadelphia Code.

         In this case, CSS's provision of services meets the definition of public accommodations and, therefore, CSS must provide its services in accordance with the Fair Practices Ordinance as incorporated by Article XV, § 15.1 of the Services Contract. CSS is a “licensed” “provider” under the Services Contract. CSS publicly solicits prospective foster parents and advertises to attract new foster parents.[18] CSS provides professional “services” to the public. In return for its services, CSS receives public funds and the source of those funds are to be disclosed to the public when CSS disseminates information relating to its services under the Services Contract.[19] CSS operates and maintains facilities that are used by staff and members of the public to carry out CSS's work under the Services Contract. Jun. 19, 2018 Hr'g Tr. 36:18-22 (Amato). ...


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