*1
Argued Dec. 1986. May Decided 1987. *2 Shuster, Counsel, Mi- Harrisburg, Elisabeth S. General Hardiman, Counsel, for Philadelphia, appel- chael Asst. Gen. lant. Pettit, appellee.
Jeffrey Philadelphia, L. NIX, C.J., LARSEN, FLAHERTY, Before HUTCHINSON, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT HUTCHINSON, Justice. (Com- Human Relations Commission Pennsylvania
mission) denying appeals an order Commission’s for enforcement of a subpoena duces tecum. The Commission sought compel appellee, (Swim Club), Lansdowne Swim provide Club various documents it subpoenaed had during of a complaint of racial against discrimination filed the Swim Club under the Pennsylvania (Act), Human Relations Act amended, 1-13, Act of October P.L. §§ P.S. 951-963. Commonwealth Court determined that the §§ Commission was bound its decision to previous dismiss a against case dismissing case, the Swim Club. In which involved a of racial discrimination filed aby party, different the Commission said the Swim Club was not a place public accommodation over which the Commission jurisdiction. would have Commonwealth Court declined to case, enforce the present issued apparently holding precluded from questioning Commission was *3 private the Swim Club’s status and thus was entitled to subpoenaed the materials. disagree question
We and hold that the of the Commis- sion’s jurisdiction to be resolved the Commis- initially sion during an authorized the Act. under in usurping Commonwealth Court erred this function in and concluding prematurely that the Commission lacked juris- diction. We therefore the order reverse of Commonwealth Court and for proceedings remand further in conformity opinion. with this 23, 1984,
The in July this case was filed on T. Ryan, Lansdowne, James a resident of on behalf of children, Ramona, himself and his minor Maria Teresa and Ryan complaint alleges Ramon. The that the Swim Club’s application denial of their in family membership the race, ancestry Club was based on color or hence and was white; Mr. and Mrs. are discriminatory. Ryan Maria Ramo- na is of Puerto Rican and Teresa and Ramon ancestry, are hispanic ancestry. black and
In the August, Swim Club filed an Answer and Complaint Motion to Dismiss with the Commission. In October, 1984, the denying Commission issued order this By letter the Commis-
motion. dated November data requested provide sion Swim Club certain and December, 1984, In forwarded documents. the Swim Club request. this The “partial response” Commission is- duces tecum January 16, on 1985. sued its responded objecting Club in February, Swim grounds relevancy, confidentiality on the and in matter. jurisdiction Commission’s lack of On overruling the Commission issued order April production subpoenaed and objections requiring these days. again documents The Swim Club de- twenty within documents, produce and the Commission re- clined Subpoena its for Enforcement of by filing Petition sponded in Court. Commonwealth on evidentiary hearing Court held an October, 1985, during which the petition testimonial and produced documentary both The Swim called support petition. its Club
evidence Club, only witness the President of the who testified membership process. regarding organization the Club’s issued its order January, In Commonwealth Court for enforcement Commission’s denying subpoena.
I
threshold,
must
the Com-
At the
we
determine
matter as
jurisdiction
mission is entitled to
appellate
We hold
right,
only by
discretion.
*4
in
from
is
this
appeal
Commonwealth Court
vested
723(a)
of
to
of the Judicial
right pursuant
Section
ap-
of
gives
jurisdiction
That section
us exclusive
Code.
any
originally
from final
entered in
matter
peals
orders
Court, “except
order en-
in
an
commenced
Commonwealth
appeal”
in
an
to that court.
tered
a matter which constitutes
723(a).
appeals
over
such as
jurisdiction
42 Pa.C.S.
Our
§
action,
subpoena
involving
auxiliary
enforcement
this one
function,
investigatory
of its
the Commission’s exercise
agency
in
of final
from that
actions
differs
Compare Pennsylvania Hu-
hearings.
orders issued after
man Relations Comm’n v.
Joe
Corp.,
St. Minerals
476 Pa.
(1978) (direct
In a subpoena enforcement proceeding, the is action brought by agency of the Commonwealth and Common original wealth Court’s and concurrent with the courts of pleas. common 761(a)(2); Pa.C.S. § 761(b). Here, Pa.C.S. bring Commission elected to § the enforcement action Commonwealth Court. 43 P.S. 957(g) (Supp.1986).1 The enforcement action only is the § judicial proceeding brought has been thus far pursuant Ryan to the complaint. The has yet deter mined whether probable cause exists credit allega tions the complaint and has not commenced an action against the Swim Club on the merits the complaint. only time, issue before Court at this was which Court, addressed initially propriety subpoena issued the Commission. Commonwealth Court’s order denying for enforcement of this is a final order because it disposes the entire Act, provisions 1. Under the of the Human Relations the Commission validity may place subpoena, not itself determine the of its but must question before a court: (g) contumacy obey In case of or refusal issued to any person any jurisdiction, upon application by court the Com- mission, may person requiring person to such issue order such Commission, appear documentary produce before the there to evi- dence, ordered, give touching if so there to matter evidence any obey question, may failure to such order court be punished by contempt said court as a thereof. added). 957(g) (emphasis § 43 P.S. *5 6 matter,
matter that As it practical pre before court.2 (or substantially impedes) cludes the Commission’s exercise investigate charges its to statutory duty of unlawful Direct discriminatory practices. appeal to this Court is this com proper originally therefore because matter was the presented menced Commonwealth Court and issues from final order by appeal previously have been appellate V, 9; an court. by reviewed Pa. Const. art. § 723(a). Pa.C.S. §
II as a To determine whether Commonwealth Court erred lacks concluding matter of law the Commission Club, the it is first to necessary over Swim Relations purpose Pennsylvania consider the Human discriminatory Act. Act that it is an unlawful That states practice: owner,
(i)
lessee,
the
any person being
proprietor,
For
agent
employe
place
superintendent,
any
or
manager,
accommodation,
to
public
resort or amusement
Refuse,
from,
(1)
any person
or
be-
deny
withhold
sex,
race, color,
creed, ancestry,
religious
cause of his
or
handicap
disability,
any person
or
or
origin
national
or
guide dog
because of the
due to use of
blindness
user,
any
directly
indirectly,
either
deafness
subject
granting
of a
would not be
2. An order
review, however,
interlocutory.
Pennsylvania
it
our
because
Laughlin
Carp.,
&
Steel
Pa.
Comm’n v. Jones
Human Relations
(1978).
place
against
party
Such an order does not
43 P.S. § accommodation, resort or amusement” as: public to, is or solicits the any place open accepts patron- which including not age general public, of the but limited to hotels, inns, taverns, roadhouses, motels, con- guests for the entertainment of transient or for ducted health, seeking accommodation of those recreation or houses, rest, or or eating any place or restaurants where buffets, consumption premises, food is sold for on the store, saloons, or or enclosure any park barrooms where sold, parlors, or malt are ice cream spirituous liquors confectioneries, fountains and all stores ice soda where derivatives, cream, preparations ice and fruit or their or beverages consumption of kind are retailed for any where stores, clinics, drug dispensaries, hospi- on the premises, tals, bathhouses, swimming pools, shops, beauty barber establishments, theatres, motion parlors, retail stores and houses, airdromes, halls, music race picture gardens, roof rinks, courses, recreation skating parks, amusement and fairs, shooting galleries, bowling alleys, gymnasiums, bil- libraries, public kindergartens, pool parlors, liard and schools, schools, academies, primary secondary high and universities, courses and all edu- colleges and extension supervision cational institutions under the of this Com- monwealth, cemeteries, garages pub- nonsectarian and all in operated lic on land or water or the air as conveyances thereof, stations, and but airports well as the terminals accommodations are their any shall not include which distinctly private. nature 954(l) (Supp.1986).
43 P.S. § accommodation,” it public If is a “place the Swim Club and jurisdiction to the Act within subject Commission, on membership persons and it not may deny this, race, ancestry. Beyond the basis of their color A provides guidance. little swim- language the statute may ming pool “place public be a accommodation” if it “accepts patronage general public” and is not ... private.” These references to the “distinctly its nature meaning general concepts “public” “private” and take applied specific appropri- factual situations. The only Commission, body applications ate to make such is the Legislature administering charged by which and is not rules and empowered only promulgate Act also to regulations policies but formulate effectuate 957(d) See 43 P.S. § Act.3 provisions purposes and (e). Court’s determination that the Commis- directly lacks this matter does con- sion *7 It accepts power tradict this conclusion. the of apparently a finding orga- the to make as to whether an only are or It holds public private.4 nization its facilities Commission, the stated having particular that once that a private, if a court entity is bound that statement that the reviewing a finds changed. disagree of has not We for the entity status the reasons that follow. power delegated
In
the
language emphasizing
broad
Commission,
Act sets
the three
of the
forth
Section
stage procedure
investigation
upon
of
to be followed
The
of a
is to investi-
filing
complaint.5
duty
Commission’s
ques-
guidelines or standards on the
3. The Commission’s issuance of
op-
"place
public
a
accommodation"
tion of what constitutes
of
facility
promote compliance
posed
“distinctly private”
a
would
investigations
help clarify what
relevant
the Act and
records are
to its
organizations
like the Swim Club.
distinction,
appellate
public/private
see
decision on the
4. For
recent
Ass'n,
York,
City
N.Y.2d
York
Club
Inc. v.
New
New
State
(1987).
upheld
a local
ble cause exists for upon Commission shall ... cause to be issued and served determination____ complainant written notice of such If it shall be probable determined after such cause exists for crediting allegations complaint, the Commission shall immediately discriminatory endeavor to eliminate the unlawful conference, practice complained persua- conciliation and sion. ... *8 (d) practice In case of failure so to eliminate such or in advance thereof, judgment if in the of the Commission circumstances so warrant, requir[e] hearing the Commission shall ... ... a before the Commission.... If, (f) upon hearing, all the evidence at the the Commission shall respondent engaged engaging any find that a has in or is unlaw- act, discriminatory practice ful as defined in the the Commission requiring respondent ... shall issue ... order such to cease and discriminatory practice desist from such unlawful and to take such as, Commission, judgment affirmative action ... in the of the will act____ purposes effectuate the of this (g) practice govern, The Commission shall establish rules or to expedite foregoing procedure and its own actions and effectuate thereunder. (Supp.1986). P.S. 959 § 43 10 See, Commonwealth, e.g., Baker v. Pennsylva-
inference. ’n, nia Human Relations Comm 325, 333, 507 Pa. 489 A.2d 1354, (1985) (Commission 1358 has discretion to select those cases to which it will afford full enforcement proceedings); Mercy Hospital Pennsylvania v. Human Relations Comm’n, 136, 132, 1357, (1982) (fact 499 Pa. 451 A.2d 1359 court can achieve an expeditious dispute resolution of a does not warrant its intervention in the statutory process resolution). designed
The Commonwealth Court this case power is limited to the to decide whether to enforce the January, issued of its part pursuant filing Ryan See See also Commonwealth complaint. 957(g). P.S. § Pennsylvania, Pennsylvania Human Relations Feeser, Comm’n 173, 177, 469 Pa. 364 A.2d (1976) (jurisdiction pleas court common was limited to power injunction necessary decide whether was preserve quo pending status Commission’s determi complaint). nation of the merits of a scope judicial petitions The review of for enforcement is limited to a determi- agency subpoenas of administrative inquiry nation whether “the is within the authority demand indefinite and the information agency, the is not too Shults, reasonably relevant.” Commonwealth v. sought 362 A.2d 26 Pa.Commonwealth Ct. Co., United v. Morton Salt quoting States
(1976),
U.S.
632, 642-43,
(1950).
information from those who best who doing judicial power most interested in not so. Because reluctant if not unable to summon evidence until it is litigation, relevant to issues in it does not shown be agency charged seeing that an administrative follow
11 the laws are enforced may not have and exercise powers original inquiry. It has a power inquisi- tion, if that, one chooses to call it which is not derived from the judicial function. It is more analogous to the Jury, Grand which does not depend on a case or contro- versy power for to get evidence investigate but can merely suspicion that being violated, the law is or even because it wants assurance that it is just not. When investigative and accusatory delegated duties are by stat- it, ute to an too, administrative body, may take steps to inform itself as to whether there probable is violation of the law.
Id.
642-43,
at
70
at 364 (emphasis added).
S.Ct.
Our conclu
sion that the Commission need
prove
it has jurisdiction
as a
precedent
condition
to judicial enforcement of an
subpoena
administrative
supported
law. See
by federal
Co.,
EEOC v. Shell Oil
54,
26,
466
1621,
U.S.
72 n.
104 S.Ct.
26,
(1984)
1632-33 n.
As
In the a subpoena course of proceeding, enforcement a reviewing may, course, court determine whether the was subpoena solely entity issued to harass the under investigation, considering such factors as the frequency investigations concerning the alleged same discriminatory practices. process The court’s is invoked to enforce the administrative subpoena, and the court may permit its Here, process be abused. three years elapsed when have since prior investigation Commission’s of the Swim Club, it is hard to see such an improper purpose. The mere fact that an organization feels a second practices annoyance is an or harassment should not be question confused with the whether Commission’s request judicial for subpoena enforcement of a made in good pursuant faith to an inquiry authority. within its reasons,
For these
Commonwealth Court erred in consid-
ering
Commission’s
and in
matter
denying
enforcement of the subpoena duces
ground
tecum the
that the
jurisdic-
Commission lacked
tion. We therefore vacate the order of Commonwealth
and
remand for
validity
consideration
at
a
subpoena
opinion.
issue in manner consistent with this
denied,
Cir.1985),
(8th
475
F.2d
cert.
U.S.
S.Ct.
(1986) (subpoena
proceeding
In Club, private” “distinctly was Lansdowne Swim appellant, “outside the commission’s dismissed later, to another com- pursuant years Three jurisdiction”. again to do sought Human Relations Commission plaint, receive agree they in 1981. I that when finished they what duces tecum entitled to a complaint they are *11 however, When, they investigative function. complete their function, no be- and found fulfilled their have investigated, they group private cause nature drop at the subpoena to a new right not have the ought complaint. every new Court. of the Commonwealth
I affirm the order would PAPADAKOS, JJ., join ZAPPALA and dissenting opinion. Justice,
ZAPPALA, dissenting. Mr. by authored Justice dissenting opinion I in the join however, I am of I because separately, McDermott. write lies in a middle resolution of this matter opinion that the McDer- Mr. Justice position taken ground between of this Court. majority mott and that of deter- has once the commission I would hold that where complaint prosecute lacking jurisdiction mined itself later investigating entity, against of discrimi- the same acts entity alleging same against the tecum, the of a duces nation seeks producing subpoena by may oppose respondent/entity opera- of its credible, that the status substantive evidence is then Review this Court unchanged. has remained tion court abused its the lower determining limited to enforce- denying enforcing discretion it. In re: Petition on the evidence before ment based Subpoena Semeraro, to Anthony Enforcement of (1986). Pa. 515 A.2d rule Applying that to the my instant case review the record Appellee indicates produced sufficient com- petent to persuade evidence the Commonwealth Court to operation conclude that its had quo. remained status At 4-6, 515 Pa. A.2d Finding 760. discretion, no abuse of I would affirm.
Argued Jan. 1987. May Decided 1987.