Milton Hershey Sch. v. Pa. Human Relations Comm'n

Jarad W. Handlemen, Christine M. Wechsler, James J. Kutz, Harrisburg, for Petitioner.

Martin C. Cunningham, Interim Chief Counsel, Harrisburg, for Respondent.

Katie Townsend, Washington D.C. and Michael Berry, Philadelphia, for Intervenor The Philadelphia Inquirer, PBC.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

CASE SEALED

OPINION BY JUDGE COHN JUBELIRER

Before the Court is an Application to Intervene and Unseal filed by The Philadelphia Inquirer, PBC (The Inquirer), seeking to intervene in the above-captioned matter for the sole purpose of having the docket sheet and other judicial records unsealed (Application). The Milton Hershey School (MHS or School), the Pennsylvania Human Relations Commission (Commission), and Complainant, who

intervened in the above-captioned matter, filed responses setting forth their respective positions. Also before the Court is Complainant's Application for Leave to Respond to MHS's Brief (Application to Respond) and MHS's Application for Leave to Submit Sealed Documents for In Camera Review (Application to Submit Documents), to which The Inquirer filed an Answer objecting. Oral argument was held before the Court on the Application on January 10, 2020, in which The Inquirer, the Commission, and MHS participated.

I. Background

Before addressing the current applications, it is helpful to understand the unique procedural background of this matter. During ongoing proceedings before the Commission on a complaint filed against the School, which had not yet reached the public hearing stage, MHS filed a Motion to Dismiss for Lack of Jurisdiction (Motion to Dismiss), claiming it was not a public accommodation under the Pennsylvania Human Relations Act¹ (Act). Without holding a hearing, a Commission Motions Examiner denied the Motion to Dismiss, concluding that the School was a public accommodation. MHS requested immediate certification for appeal, which was denied. Thereafter, MHS filed a petition for review seeking appellate review of the denial of the Motion to Dismiss under Pennsylvania Appellate Rule of Procedure 1311 (note), Pa.R.A.P. 1311 (note).² Following argument, the Court granted review, limited to the issue of "[w]hether [MHS] qualifies as a ‘public accommodation’ under Section 4(l ) of the ... Act, 43 P.S. § 954(l )." Milton Hershey Sch. v. Pa. Human Relations Comm'n (Pa. Cmwlth., No. 651 C.D. 2019, filed June 26, 2019). It was on this limited issue that the Court accepted jurisdiction; the matter otherwise remained with the Commission, with those proceedings stayed. Further, noting that, on the same day the Motion to Dismiss was denied, the Motions Examiner issued an order maintaining the matter under seal in accordance with the Commission's regulations subject to the filing of valid waivers by those whose private, confidential information could be at issue, the reasons for the Motions Examiner's decision to maintain the seal, and the fact that the matter had not yet reached public proceedings before the Commission, MHS requested that the seal be maintained by the Court, which the Court granted following argument.

Complainant sought reconsideration of the decision to seal the record. Following argument on both the request for reconsideration to unseal the record and on the merits of the limited issue accepted for appellate review, the Court issued its decision. Milton Hershey Sch. v. Pa. Human Relations Comm'n , 220 A.3d 713 (Pa. Cmwlth. 2019). Therein, Complainant's reconsideration request was granted in part, to the extent that the Court issued a reported opinion addressing the legal issues involved, which did not require reference to any of the underlying facts related to

the complaint or the actions taken after its filing. The case and record otherwise continued to remain under seal. Id. at 715-16. On the merits of the interlocutory petition for review, the Court vacated the Commission's order and "remanded [the matter] for an evidentiary hearing at which a record can be created in order to resolve th[e] jurisdictional question, which is a determination for the Commission in the first instance." Id. at 722.

With this procedural background in mind, the Court now turns to The Inquirer's Application, as well as the Application to Respond and Application to Submit Documents, which are before the Court.

II. The Inquirer's Application and Responses

A. Intervention

1. Arguments

a. The Inquirer

On December 4, 2019, the Inquirer filed its Application seeking to intervene in the above-captioned matter for the limited purpose of asking that the record be unsealed. (Application at 1, 4.) The Inquirer avers that the matter decided by the Court in this case is one of significant public concern throughout Pennsylvania and that allowing The Inquirer, as a daily newspaper that has previously reported on matters involving MHS, to intervene vindicates the public's constitutional and common law rights to access the judicial records filed in this case. Citing Pennsylvania Rule of Civil Procedure 2327(4), Pa.R.C.P. No. 2327(4), The Inquirer maintains that intervention is necessary for it to assert its "legally enforceable interest" to access the docket and other judicial records. According to The Inquirer, the right of the press to intervene for this reason has been recognized by Pennsylvania Courts in both criminal and civil proceedings. See, e.g. , Commonwealth v. Upshur , 592 Pa. 273, 924 A.2d 642, 645 n.2 (2007) ; PA Childcare LLC v. Flood , 887 A.2d 309, 313 (Pa. Super. 2009). The Inquirer notes that MHS offers no argument that it will be prejudiced by The Inquirer's intervention beyond that the School does not want the disclosure of any records in this matter.

b. The Commission

The Commission offers no argument in opposition to The Inquirer's request to intervene, agreeing with the general premise of The Inquirer's arguments relating to the public's right to access judicial documents and records.

c. MHS

MHS responds that The Inquirer's request to intervene should be denied with prejudice because it does not meet the requirements of Pennsylvania Rules of Civil Procedure 2327 and 2329, Pa.R.C.P. Nos. 2327, 2329. First, MHS points out that there is no matter pending before the Court, as required by Rule 2327, because the underlying appeal has been resolved and that matter was remanded for further proceedings. This Court has held, MHS argues, that a petition to intervene filed after a dispositive order is filed is too late. Wecht v. Roddey , 815 A.2d 1146, 1153 (Pa. Cmwlth. 2002) (quoting Estate of Albright , 376 Pa.Super. 201, 545 A.2d 896, 899 (1988) ). Second, MHS argues the Application is untimely and unduly delayed where The Inquirer had knowledge of the matter while it was initially pending before the Commission and before the Court but did not seek intervention until a month after the Court issued its opinion and order. According to MHS, it need not establish that it would be prejudiced by the delay. Third, MHS asserts The Inquirer's interests have been adequately represented by Complainant's counsel, who has already pursued the very relief sought by the putative

intervenor. Pa. Assoc. of Rural and Small Schs. v. Casey , 531 Pa. 439, 613 A.2d 1198, 1200-01 (1992) (denying intervention where "the substance of [the parties'] positions covers the substance of the positions proposed by [the intervenor]"). Finally, MHS contends allowing The Inquirer's intervention at this time would unduly prejudice MHS because the appeal has been concluded, there has been no adversarial proceeding or hearing of any kind on the underlying matter, and the underlying proceeding of the Commission is confidential under Section 9(c) of the Act, 43 P.S. § 959(c).³

2. Discussion

The Inquirer wishes to intervene in this matter, not to participate in ongoing litigation, but for the sole purpose of asking the Court to unseal judicial records. Although not argued by the parties, the Supreme Court has not required intervention when the public wishes to unseal judicial records in a completed judicial proceeding. In re Estate of duPont , 606 Pa. 567, 2 A.3d 516 (2010). In duPont , a member of the public filed a petition seeking access to records that had been sealed by an orphan's court in an incapacitation proceeding that had been resolved nearly 10 years prior to the petition for access. Id. at 517-18. No intervention was required for the court to entertain the request to open records previously sealed, and all three courts, orphans', Superior and Supreme, addressed the request, without requiring the petitioner to intervene in the previously resolved proceedings.

Citing precedent involving media intervention in active or ongoing litigation, Upshur , 924 A.2d at 645 n.2 (citing Commonwealth v. Fenstermaker , 515 Pa. 501, 530 A.2d 414, 416 n.1 (1987) ), and PA ChildCare, LLC , 887 A.2d at 311, The Inquirer argues that it should be granted Intervenor status. However, in accordance with duPont , because the limited proceedings before this Court have been resolved, and the case closed, intervention pursuant to Pa.R.C.P. No. 2327,⁴ is not necessary in this case for The Inquirer to assert its "legally enforceable interest" to access the docket and other judicial records. Because the Court considers The Inquirer's Application as a petition to access this Court's records, intervention is unnecessary and to the extent the Application seeks intervention, it is dismissed as moot.

B. Unsealing Docket and Judicial Records

1. Arguments

a. The Inquirer

The Inquirer argues that Pennsylvania law mandates open and public judicial proceedings and that the public and the press have a presumptive right to access under the United States and Pennsylvania Constitutions, as well as under the common

law. PA...