IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Milton Hershey School, :

Petitioner : CASE SEALED

 :

v. : No. 665 C.D. 2019

 : Heard: January 10, 2020

Pennsylvania Human Relations :

Commission, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: February 11, 2020

Before the Court is an Application to Intervene and Unseal filed by The 

Philadelphia Inquirer, PBC (The Inquirer), seeking to intervene in the abovecaptioned 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.
2

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, 

 

1 Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.

2 The note to Rule 1311 provides that: 

[w]here the administrative agency or lower court refuses to amend its order to 

include the prescribed statement, a petition for review under Chapter 15 of the 

unappealable order of denial is the proper mode of determining whether the case 

is so egregious as to justify prerogative appellate correction of the exercise of 

discretion by the lower tribunal. If the petition for review is granted in such a 

case, the effect . . . is the same as if a petition for permission to appeal had been 

filed and granted, and no separate petition for permission to appeal need be filed.

Pa.R.A.P. 1311 (note).
3

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.
4

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, 924 A.2d 642, 645 n.2 (Pa. 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. 
5

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, 545 A.2d 896, 899 (Pa. Super. 

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, 613 A.2d 1198, 1200-01 (Pa. 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 

 

3 This section of the Act governs “Procedure” and provides, in pertinent part:

(Footnote continued on next page...)
6

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, 2 A.3d 516 (Pa. 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, 

530 A.2d 414, 416 n.1 (Pa. 1987)), and PA ChildCare, LLC, 887 A.3d at 311, The 

Inquirer argues that it should be granted Intervenor status. However, in accordance 

_____________________________

(continued...)

(c) . . . . If it shall be determined after [] investigation that probable cause 

exists for crediting the allegations of the complaint, the Commission shall 

immediately endeavor to eliminate the unlawful discriminatory practice 

complained of by conference, conciliation and persuasion. The members of 

the Commission and its staff shall not disclose what has transpired in the 

course of such endeavors: Provided, That the Commission may publish the facts 

in the case of any complaint which has been dismissed, and the terms of 

conciliation when the complaint has been adjusted, without disclosing, except as 

required by the Fair Housing Act, the identity of the parties involved.

43 P.S. § 959(c) (emphasis added).
7

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 Childcare LLC, 887 A.2d at 312. The burden to overcome the 

presumption is on the party seeking closure of a record or case, The Inquirer 

asserts, and general privacy concerns are insufficient to justify such relief. 

According to The Inquirer, both the First Amendment to the United States 

Constitution and article I, section 11 of the Pennsylvania Constitution allow for a 

right of access to court proceedings and judicial records. Publiker Indus., Inc. v. 

Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984); PA Childcare LLC, 887 A.2d at 312;

In re M.B., 819 A.2d 59, 61 (Pa. Super. 2003); Katz v. Katz, 514 A.2d 1374, 1380 

(Pa. Super. 1986). In determining whether the presumption of access applies to a 

particular proceeding or document, The Inquirer argues, two considerations are 

examined: “experience” – whether the proceeding or document is the type that has 

 

4 Under Rule 2327, it is “[a]t any time during the pendency of an action, [that] a person 

not a party thereto shall be permitted to intervene therein . . . .” Pa.R.C.P. No. 2327. 
8

historically been open to the press or general public; and “logic” – whether public 

access would play “a significant positive role in the functioning of the particular 

process in question.” (Application ¶ 13 (quoting Press-Enter. Co. v. Superior

Court of California, 478 U.S. 1, 8-9 (1986) (Press-Enterprise II)).) The Inquirer 

argues that the constitutional right to access may only be overcome if closure 

serves a compelling governmental interest and is the least restrictive means of 

furthering that interest. Publicker, 733 F.2d at 1070; In re M.B., 819 A.2d at 63. 

With regard to the common law right to access, The Inquirer points out that the 

Supreme Court has held the right applies to “any item that is filed with the court as 

part of the permanent record of a case and relied on in the course of judicial 

decision-making.” (Application ¶ 17 (quoting Upshur, 924 A.2d at 648).) When 

this right applies, The Inquirer argues, “it must be weighed against any asserted 

interests in secrecy to determine whether sealing is justified.” (Id. ¶ 18 (citing 

Upshur, 924 A.2d at 651).) Applying these principles here, The Inquirer contends, 

should result in the unsealing of at least part of the judicial records in this matter 

because the privacy issues must be minimal given that Complainant has attempted 

to unseal the record. (Id. ¶ 27.) Such records include, The Inquirer argues, the 

docket sheets and the briefs and reproduced record filed in support or opposition to 

MHS’s appeal. According to The Inquirer, any confidential or sensitive 

information could be or should have been filed separately under seal, particularly 

in an appellate matter where the issue was primarily legal, not factual, in nature. 

Further, The Inquirer argues, the decision to maintain records or portions of 

records under seal must be supported by specific findings supporting that decision.

The Inquirer acknowledges that the record made before the Commission, the 

agency record, was sealed, and that it does not seek disclosure of that record. 
9

However, The Inquirer argues that the reproduced record, even though it contains 

portions of the sealed agency record, should be unsealed because once it was filed 

with the Court, it became a judicial record and contains materials that the parties 

believe would be important to the Court’s decision. The Inquirer asserts the public 

has a constitutional right to access the parties’ arguments related to whether MHS 

is a public accommodation under the Act and which the Court considered in its 

decision-making process. The Inquirer challenges MHS’s reliance on the various 

statutory and regulatory provisions regarding confidentiality and privacy, as such 

involve Complainant’s, not MHS’s, interests, and Complainant has expressed a 

desire to waive those protections. To the extent interests of third parties may be 

involved, The Inquirer states it is not seeking that information.

b. The Commission

The Commission “agrees with the general premise of [T]he Inquirer’s 

argument that the public has certain rights to inspect court dockets and related 

documents,” and the Commission holds public hearings where probable cause has 

been found to believe the Act has been violated. (The Commission’s Answer ¶ 

11.) However, the Commission also acknowledges that the underlying matter was 

sealed by its Motions Examiner subject to the submission of valid waivers and that 

MHS argued in its requests to seal that the record and submissions in this matter 

would contain information relating to multiple subjects made confidential by 

various statutes. Given the public interest in the case, the Commission “requests 

that this . . . Court remand the case . . . to permit” the filing of valid waivers, which 

could, ultimately, render The Inquirer’s Application moot. (Id. ¶ 15.)
10

c. MHS

MHS argues The Inquirer’s request to unseal should be denied beyond 

unsealing the docket sheet, which MHS does not oppose, because the public’s right 

to access court and judicial records is not absolute and must be weighed against the 

competing needs and interests of those whose confidential information is contained 

in those records, particularly when the information is subject to statutory or 

regulatory protection. Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 959 (Pa. 

Super. 1989). First, MHS maintains the records are investigative materials and the 

briefs are replete with information protected from disclosure by federal and state 

law, including Section 9(c) the Act; Section 708 of the Right-to-Know Law, which 

governs the exceptions to public disclosure of public records, 65 P.S. § 67.708;

5

multiple provisions of the Health Insurance Portability and Accountability Act

(HIPAA), which govern the protection of medical information from public 

disclosure, 45 C.F.R. §§ 160.103(1), 164.502, 164.514(b)(2)(ii); and provisions of 

the Family Educational Rights and Privacy Act (FERPA), which govern the 

protection of educational records from public disclosure, 20 U.S.C. § 1232g. MHS 

argues the Commission’s contention that a valid waiver by Complainant would 

render all of the records available is incorrect as confidential information of others

may be implicated and is inconsistent with the Commission’s past practice of 

denying non-party access to preliminary investigative findings and proceedings. 

Second, MHS asserts there is no constitutional right to access the records 

because The Inquirer’s request does not meet the experience/logic test, as pretrial 

discovery materials are not subject to a constitutional right to public access. 

Stenger, 554 A.2d at 958. According to MHS, the Commission’s investigative 

 

5 Act of February 14, 2008, P.L. 6. 
11

materials and proceedings up to this point, which have not been open to the public, 

are akin to pretrial discovery, and do not satisfy the “experience” prong of the 

constitutional test. The Commission record, which is a prehearing, confidential 

record, MHS argues, does not satisfy the “logic” prong. MHS further argues that 

the records filed with the Commission, which would otherwise be confidential, are 

not rendered publicly accessible judicial records subject to disclosure simply 

because the School had to include them as part of its reproduced record in its 

efforts to seek redress from the Court to remedy a legal error made by the 

Commission.

Third, MHS argues that simply because a record or document is filed with a 

court does not, automatically, make it a judicial record; rather, the filing must have 

“adjudicatory significance.” N. Jersey Media Grp. v. United States, 836 F.3d 421, 

435-36 (3d Cir. 2016). It asserts that the Court’s reported opinion in this case

made clear that nothing in the record before the Commission formed the basis of 

the Court’s decision to vacate the Commission’s order. Thus, MHS maintains, 

materials contained within the reproduced record filed with the Court are not 

judicial records because they were not relied upon by the Court in its opinion. 

Because the Court specifically set forth the arguments, statutory provisions, and 

precedent it relied upon, the School argues no other filings are subject to public

disclosure as “judicial records” because they were not of “adjudicatory 

significance” to the Court’s decision in this case. MHS asserts there is good cause 

to deny The Inquirer’s request to unseal because The Inquirer’s reporter,
12

Complainant’s counsel, and others have acted together to publicize confidential 

information in the past to MHS’s detriment.6

Finally, MHS observes that this Court considered similar arguments in 

opposition to sealing the records from Complainant and concluded that the record 

should be sealed. According to MHS, the Court should reject further attacks on the 

Court’s determination when nothing has changed.

d. Complainant

Complainant filed an Application to Respond to MHS’s Brief, which the 

Court grants.

7

 Complainant challenges MHS’s reliance on Section 9(c) of the Act. 

Complainant observes that this provision only requires confidentiality by the 

Commission or its staff on the endeavors taken to resolve unlawful discrimination 

via conference, conciliation, and persuasion. Complainant contends there is 

nothing, statutorily, stopping Complainant from publicly disclosing other items. 

Complainant further responds that the other statutory or regulatory provisions that 

MHS relies upon do not prohibit disclosure once the subject of the record waives 

the subject’s confidentiality and privacy interests.

 

6 Although MHS made specific allegations in this regard it is unnecessary to go into 

further detail because those allegations are not relevant to whether this record should be 

unsealed. Further, as MHS’s Application to Submit Documents relates to materials associated 

with these arguments, and the Court does not rely on those contentions, MHS’s Application to 

Submit Documents is denied as irrelevant.

7 Because the Court’s disposition does not rely on certain of MHS’s allegations, which 

Complainant characterizes as “casting unwarranted aspersions” on Complainant’s counsel and 

conspiracy theories, (Application to Respond at 1), similar to MHS’s allegations, the Court will 

not consider or set forth those arguments. 
13

2. Discussion

a. Guiding Legal Principles

There is no dispute that “[o]ur courts have recognized a constitutional right 

of public access to judicial proceedings” under both the United States and 

Pennsylvania Constitutions, as well as an independent common law basis for such 

access. Pa. ChildCare, LLC, 887 A.2d at 312 (internal quotations and citations 

omitted). Thus, there is a “mandate for open and public judicial proceedings in 

both the criminal and civil settings.” Id. The right to open and public judicial 

proceedings includes “a general right to inspect and copy public records and 

documents, including judicial records and documents.” Fenstermaker, 530 A.2d at 

418 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 602 (1978)). These 

rights are “not absolute, as the public may . . . be excluded from such proceedings 

or records to protect public or private interests.” duPont, 2 A.3d at 519 (internal 

quotations and citations omitted); see also Fenstermaker, 530 A.2d at 420 (stating 

“the common law right to inspect documents . . . has not been held to be absolute,”

but there is a presumption of openness). Pennsylvania courts have “recognized in 

many contexts that our courts have an inherent power to control access to their 

records and proceedings and may deny access when appropriate—for example, to 

protect the privacy rights of individuals.” In re M.B., 819 A.2d at 62. Importantly, 

“general concerns for harassment or invasion of privacy” are not sufficient to 

support closure. Commonwealth v. Long, 922 A.2d 892, 906 (Pa. 2007).

In asserting the public’s right to access to the sealed judicial records in this 

matter, The Inquirer asserts, based on common law and constitutional principles, 

that the Court must begin with a presumption of openness and that MHS has the 

burden of rebutting that presumption. The Inquirer challenges the Court’s orders, 
14

one of which is itself still sealed, on the basis that the Court did not make the 

findings necessary to support such orders. 

In duPont, the Supreme Court emphasized that, in determining whether to 

grant public access to a sealed record, its analysis was guided by the nature of the 

underlying proceedings, there, incapacity and guardianship proceedings, in which 

“the common-law presumption of openness ha[d] been substantially curtailed 

through legislative enactment. . . .” 2 A.3d at 522. See Section 5511(a) of the 

Probate, Estates and Fiduciaries Code, 20 Pa. C.S. § 5511(a) (which allows for the 

closure of incapacity proceedings to the public). In this context, the Supreme 

Court rejected the idea that the burden forever remained on the party who sought to 

seal or to retain the seal on the record because “[s]uch an approach would be, at 

best, inflexible” and “at odds with the concept that the constitutional mandate is 

not absolute.” duPont, 2 A.3d at 524-25. Rather, the Court permitted flexibility 

“in view of the courts’ supervisory powers over their records.” Id. at 525. For 

these reasons, the Supreme Court held that neither the common law nor 

constitutional law requires a court to place the burden of demonstrating the need 

for continued confidentiality whenever a non-litigant seeks access to the record in 

an incapacity proceeding. Id. at 521, 525. Rather, in that context, the burden lies 

on the individual seeking public access to the records to “demonstrate good cause” 

to modify the order sealing the matter, an approach that respects a court’s prior 

order, while also providing a means through which the public can seek to access 

those records. Id. at 525. 

In this case, the Court did issue an order sealing the court records, which, 

upon reconsideration, the Court largely affirmed. However, because this case is

not an incapacity or guardianship proceeding in which “the presumption of 
15

openness has been substantially curtailed,” it is unclear whether the Supreme 

Court’s discussion of the burden in duPont, would apply here. To the extent The 

Inquirer had to “demonstrate good cause” for the Court to review its sealing order, 

the Court finds that there is reason for it to rebalance its previous considerations 

regarding public access based on The Inquirer’s contentions. 

We begin by “highlighting that a request to seal or unseal judicial records is 

a matter committed to the discretion of the . . . court” whose records are at issue. 

duPont, 2 A.3d at 521 (citing Upshur, 924 A.2d at 651). In reviewing public 

access to judicial records, there are two methods of analysis: a constitutional 

analysis and a common law analysis. In re M.B., 819 A.2d at 62 n.2. “[T]here is 

[an] overlap between the common law and the constitutional inquiries, since both 

rights of access seek to foster the fairness and the appearance of fairness of the . . . 

justice system.” Long, 922 A.2d at 897. The inquiry begins with a presumption of 

openness. In addressing the constitutional right of access, courts have “adopted the 

‘experience and logic’ test.” Id. at 900-01. The experience test “considers whether 

there has been a ‘tradition of accessibility,’” and the logic test considers “‘whether 

public access plays a significant positive role in the functioning of the particular 

process in question.’” Id. at 900 (quoting Press-Enterprise II, 478 U.S. at 8). “In 

conducting the ‘logic’ inquiry, [the court] must balance two competing concerns –

the value of openness . . . that enhances the fairness and perception of fairness in 

the . . . justice system versus the . . . privacy concerns” involved. Id. at 903. “If 

the right asserted is grounded in both experience and logic, then a right of access to 

the proceedings in question exists.” Id. It is then the burden of the party seeking 

closure to “rebut the presumption of openness by showing that closure serves an 
16

important governmental interest and there is no less restrictive way to serve that 

interest.” In re M.B., 819 A.2d at 63 n.2.

The common law approach requires “the party seeking closure [to] show that 

[the] interest in secrecy outweighs the presumption of openness.” Id. “Where the 

presumption of openness attached to a public judicial document is outweighed by 

circumstances warranting closure of the document to public inspection, access to 

the document may be denied.” Fenstermaker, 530 A.2d at 420. Thus, under the 

common law approach, “the public may be ‘excluded, temporarily or permanently, 

from court proceedings or the records of court proceedings to protect private as 

well as public interests[, including]: . . . the privacy and reputations [of innocent 

parties] . . . .’” Katz, 514 A.2d at 1377 (quoting In re Nat’l Broad. Co., 653 F.2d 

609, 613 (D.C. Cir. 1981)) (first alteration added). 

Access to judicial records may be limited by other principles as well, such as

statutory or regulatory provisions or court rules. For example, access to “files and 

records of the court in a proceeding under” the Juvenile Act is limited, and those 

materials are disclosable to the public under only very limited circumstances. 

Section 6307 of the Juvenile Act, 42 Pa. C.S. § 6307. Similarly, this Court is 

bound by the Case Records Public Access Policy of the Unified Judicial System of 

Pennsylvania (Public Access Policy) adopted by the Pennsylvania Supreme Court. 

The Public Access Policy recognizes the importance of the public’s access to the 

courts, but also acknowledges that court filings may contain “extensive amounts of 

personal data concerning individuals’ finances, unique identifiers, medical history, 

and so on” and the need for courts to consider “issues regarding the need for 

openness and transparency and the concern for personal privacy and security.” 
17

Explanatory Report of the Public Access Policy at 1-2.8 Sections 7 and 8 of the 

Public Access Policy address how to file “Confidential Information” and 

“Confidential Documents” with the Court, as such information and documents are 

not subject to access by the public. Notably, both sections reflect that they are “not 

applicable to cases that are sealed,” meaning that none of the relevant redactions or 

special filing of forms apply to sealed cases as those cases are not accessible to the 

public. See Section 7.0(A) and Commentary, and Section 8.0(A) and Commentary 

of the Public Access Policy.

In applying these principles, the Court is mindful that access to court records 

is to 

assure the public that justice is done even-handedly and fairly; to 

discourage perjury and the misconduct of participants, to prevent 

decisions based on secret bias or partiality; to prevent individuals 

from feeling that the law should be taken into the hands of private 

citizens; to satisfy the natural desire to see justice done; to provide for 

community catharsis; to promote public confidence in government 

and assurance that the system of judicial remedy does in fact work; to 

promote the stability of government by allowing access to its 

workings, thus assuring citizens that government and the courts are 

worthy of their continued loyalty and support; to promote an 

understanding of our system of government and courts.

Fenstermaker, 530 A.2d at 417. 

b. The Records at Issue

The Inquirer characterizes the records here as either “agency records,” those 

that were filed with the Commission in the first instance and transferred to the 

Court upon the filing of MHS’s petition for review, or “judicial records,” those that 

 

8 The Public Access Policy and Explanatory Report are available at 

http://www.pacourts.us/public-records/public-records-policies (last visited February 7, 2020). 
18

were filed with or by the Court. Acknowledging that the “agency records,” at the 

time of argument, are sealed by the Motions Examiner’s sealing order, The 

Inquirer does not ask this Court to unseal them. The Inquirer is requesting the 

Court to unseal “judicial records,” which are “item[s] that [are] filed with the court 

as part of the permanent record of a case and relied on in the course of judicial 

decision-making,” Upshur, 924 A.2d at 648, as well as orders of the Court. MHS 

relies, in part, on its assertions that Complainant made similar arguments regarding 

public access and that there has not been any change in the circumstances, to argue 

that the seal on all of the records, other than the docket sheet, should remain intact. 

It points to the sealing of the matter by the Commission, as well as statutory and 

regulatory reasons, for denying the Application.

However, there has been a change in the interests asserted and in the 

circumstances. Although MHS asserts Complainant made the same arguments as 

The Inquirer, Complainant’s interest, as a party with access to all of the filings and 

a personal stake in the outcome of the litigation, is different from the public’s 

interest at large. Unlike a party with an interest in the outcome of the litigation 

and, therefore, whose arguments are furthering the advocacy of the party’s 

position, The Inquirer’s interest in “raising assertions of the public rights of access 

to information” in court records is for the public. Fenstermaker, 530 A.2d at 416 

n.1. Further, the litigation in the underlying appeal is now concluded, thereby 

allowing the Court to review the finally filed records in light of the public interest 

asserted by The Inquirer and rebalance that important interest with the protected 

privacy interests of those involved. In doing so, the Court notes that many of the 

records that concern MHS are in the materials filed with the Commission.
19

The Court is mindful that there were records filed with the Court involving 

minors, and their medical and educational information, which had been sealed by 

the Commission. Such records implicate serious privacy concerns. Further, MHS 

filed its Petition for Review asking this Court to decide a discrete legal issue. The 

matter remains with the Commission, there have been no factual findings, and any 

allegations of fact as they relate to any students or third parties are sealed by the 

Commission. The opinion of this Court on the discrete legal issue of jurisdiction 

was not dependent upon any of these factual allegations. The Court also 

recognizes MHS’s argument that, if the Commission does not have jurisdiction 

over it as a public accommodation, the preliminary proceedings before the 

Commission would not become public. For these reasons, and given the nature of 

the interlocutory appeal that was before this Court, which was to decide a discrete 

legal issue in an ongoing agency proceeding, the Court will not unseal the records

that were sealed by the Commission, and the information relating to individuals 

who were minors when the events relevant to the underlying complaint occurred. 

With this reasoning in mind, the Court will examine whether to unseal: (1) 

the docket sheet; (2) the agency records; (3) orders of the Court; (4) the reproduced 

record; (5) MHS’s Petition for Review; (6) appellate briefs addressing the merits of 

whether MHS is a public accommodation; and (7) other miscellaneous filings.

i. The Docket Sheet

Because there is no disagreement that the docket sheet can be unsealed, it

shall be unsealed after initials are substituted for Complainant’s name. 
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ii. The Agency Record and Supplemental Record

Because there is no disagreement that the agency record, which includes the 

supplemental agency record filed on July 31, 2019, should remain sealed, those 

filings shall remain sealed.

iii. Orders of this Court

After review of the Orders of the Court, the following do not contain any 

private information of individuals or MHS and shall be unsealed: Orders dated 

June 5, 2019; June 13, 2019; June 17, 2019; June 26, 2019; August 21, 2019; 

August 22, 2019; November 21, 2019; December 3, 2019; December 9, 2019; 

December 16, 2019; December 18, 2019, of which there are two; December 19, 

2019; and January 2, 2020. The Court’s November 4, 2019 Opinion and Order 

shall also be unsealed. Copies of the Orders dated July 24, 2019, July 25, 2019,

and August 9, 2019, will be made available after initials are substituted for 

Complainant’s name.

iv. The Reproduced Record

The Inquirer seeks to unseal the reproduced record, which was filed with the 

Court by MHS, on the basis that it is a “judicial record” and the Court must have

considered its contents in its decision-making process. The Inquirer is not seeking 

access to the agency record, which is sealed before the Commission. However, the 

reproduced record is comprised of parts of the agency record, which the appellate 

procedural rules require the petitioner to file with the Court. In essence, it is 

nothing more than a copy of parts of the agency record. This copy of the agency 

record is required for the convenience of the court and the parties because it would 

be difficult for multiple judges and the parties to rely solely on one original paper 
21

record, which has to be carefully protected at all times. The mere fact that the 

agency record was copied in compliance with the rules does not necessarily 

transform the copy into something other than the agency record it was. This is 

particularly the case here.

It cannot be said that there is a “tradition of accessibility” to documents

already under seal and precluded from public disclosure or that “public access” 

to already sealed documents would “play[] a significant positive role in the 

functioning of the particular process in question,” here, a very limited appeal 

addressing a discrete legal issue, so as to meet the experience and logic prongs of 

the constitutional test for access. Long, 922 A.2d at 900 (quoting Press-Enterprise 

II, 478 U.S. at 8). Continuing the protection of the documents that are already 

under seal and respecting the decision of an administrative agency to seal its 

record, while the matter is still pending before that agency, is a compelling 

governmental interest, and maintaining the seal on copies of those documents is the 

least restrictive means of furthering that interest. 

Balancing the public’s interest in access, as asserted by The Inquirer, with 

the important privacy interests of those whose confidential and privileged 

information may be contained within the records. Although the public’s interest in 

access is unquestionably important, the Motions Examiner’s sealing of the matter 

in the first instance reflects the countervailing importance of the multiple privacy 

interests that are implicated in these materials. The common law approach 

recognizes that the public may be “excluded . . . from court proceedings or the 

records of court proceedings to protect . . . the privacy and reputations [of innocent 

parties].” Katz, 514 A.2d at 1377. In sealing the matter, the Motions Examiner 

was concerned for not only Complainant’s privacy interests, as reflected in the 
22

conclusion that a sufficient waiver had not been provided, but also for third parties 

whose confidential and privileged information could be disclosed to the public in 

the proceedings before the Commission. The Court shares these same concerns 

regarding the accessibility of confidential and privileged information to the public 

in the absence of valid waivers by those whose information is contained in the 

reproduced record, which was filed only because MHS sought to redress an error 

unrelated to that information. Balancing these competing interests results in the 

conclusion that the reproduced record should remain under seal. 

v. The Petition for Review 

The Petition for Review, although it does contain some factual information 

that is under seal, is comprised in large part of MHS’s legal arguments to this 

Court. This document, having been filed of record with the Court and considered 

by the Court in granting MHS permission to appeal, is a judicial record. The 

Petition for Review can, therefore, be unsealed except for Section IV B. in the 

Statement of the Case, specifically paragraphs 54 – 85 and associated footnotes,

which will not be disclosed as they contain material that has been sealed. Further, 

the Appendix to the Petition for Review contains documents that were sealed by 

the Commission; therefore, the Appendix to the Petition for Review will also 

remain sealed. Complainant will be identified by initials in the Petition for 

Review. MHS is directed to exchange a proposed redacted version of its Petition 

for Review with the Commission and Complainant within 10 days of this Opinion 

and Order and to promptly file a certificate of service with the Court. The 

Commission and Complainant shall have 10 days to review the proposed 

redactions and to make a good faith effort to resolve any disputes that may arise. 

The final form of the redacted Petition for Review shall be filed with the Court on 
23

March 3, 2020. MHS is directed to file an extra paper copy of the redacted 

Petition for Review with the Court to be provided to The Inquirer.

vi. Appellate Briefs

The Inquirer seeks access to the appellate briefs in which the parties to the 

underlying appeal set forth their arguments regarding MHS’s status as a public 

accommodation under the Act for the Court’s consideration. These documents are 

judicial records, as they were filed with the Court, and whether the Court found all 

the arguments persuasive or not, the Court read the briefs and was informed by 

their presentation as they related to the discrete legal issue before the Court. 

Consistent with the previous discussion regarding the underlying facts and 

proceedings, which remain under seal before the Commission, the Court will grant 

The Inquirer’s request subject to the following redactions:

 MHS’s Brief: Sections B and C of the Statement of the Case, and 

Appendices A and B; 

 Commission’s Brief: The first paragraph of the Introductory Statement, and 

the case citation to the underlying case before the Commission included in 

the table of authorities;

 Complainant’s (Intervenor) Brief: None;

 MHS’s Reply Brief: Introduction, and the references to Complainant’s 

name found on pages 8, 18, and on the Proof of Service.

The parts of the appellate briefs set forth above shall be redacted from the briefs. 

MHS, the Commission, and Complainant are directed to exchange the proposed 
24

redacted copies of the briefs within 10 days of this Opinion and Order and to 

promptly file a certificate of service with the Court. MHS, the Commission, and 

Complainant shall have 10 days to review the proposed redactions and to make a 

good faith effort to resolve any disputes that may arise. The final form of the 

redacted briefs shall be filed with the Court on March 3, 2020. MHS, the 

Commission, and Complainant are directed to file an extra paper copy of the 

redacted briefs with the Court to be provided to The Inquirer.

vii. Other Miscellaneous filings

After review of the other filings submitted to the Court and given the 

previous explanation regarding maintaining the seal on certain materials, the 

following items, and their associated Proofs of Service, will remain under seal: 

 MHS’s Application to File Under Seal filed June 3, 2019; 

 MHS’s Application to Stay filed June 3, 2019; 

 MHS’s Answer to Complainant’s Application for Partial and Prospective 

Reconsideration-Reargument (Application for Reconsideration) filed July 

17, 2019; 

 The parties Joint Stipulation to Correct the Record filed July 19, 2019;

 MHS’s Answer to Complainant’s Reply to MHS’s Answer to the 

Application for Reconsideration filed on August 13, 2019; and

 Complainant’s Response to MHS’s Brief in Opposition to the Application to 

Intervene and Unseal filed on January 7, 2020. 

In addition, the PACFile automatically-generated proofs of service, that are already 

of record, will remain under seal as they contain Complainant’s name.
25

The following filings will be unsealed, after initials are substituted for 

Complainant’s name:

 MHS’s Application to Expedite filed June 3, 2019;

 The Commission’s Application to Quash filed June 7, 2019;

 The Commission’s Entry of Appearance filed June 7, 2019;

 MHS’s Praecipe to File Verifications filed on June 7, 2019;

 Complainant’s Notice of Intervention filed on June 14, 2019;

 Complainant’s Application for a Continuance filed June 14, 2019;

 MHS’s Answer to Complainant’s Application for a Continuance filed June 

17, 2019;

 Complainant’s Application for Reconsideration filed on July 3, 2019;

 Complainant’s Reply to MHS’s Answer to the Application for 

Reconsideration filed on July 31, 2019;

 MHS’s Praecipe for Withdrawal of Appearance filed on August 15, 2019;

 MHS’s Entry of Appearance filed on August 19, 2019;

 MHS’s Application for Relief filed on August 21, 2019;

 MHS’s Notice of Authority filed on October 31, 2019;

 MHS’s Application to Amend Order of November 4, 2019 (Application to 

Amend) filed on November 14, 2019;

 MHS’s Application for Extension of Time to File Answer filed on December 

11, 2019;

 MHS’s Entry of Appearance filed on December 11, 2019;

 MHS’s Application For Leave to Submit Sealed Documents for In Camera

review (Application to Submit Documents) filed December 31, 2019; and
26

 Complainant’s Application for Leave to Respond to Brief of MHS in 

Opposition to The Inquirer’s Application to Intervene and Unseal filed on 

January 7, 2020.

Further, consistent with the previous discussion regarding the underlying facts and 

proceedings, which remain under seal before the Commission, Section II(A) of 

MHS’s Answer to The Inquirer’s Application to Intervene and Unseal, which was 

filed on December 30, 2019, shall be redacted. MHS, the Commission, and 

Complainant are directed to exchange the proposed redacted copies of these items 

within 10 days of this Opinion and Order and to promptly file a certificate of 

service with the Court. MHS, the Commission, and Complainant shall have 10 

days to review the proposed redactions and to make a good faith effort to resolve 

any disputes that may arise. The final form of the redacted items shall be filed 

with the Court on March 3, 2020. MHS, the Commission, and Complainant are 

directed to file an extra paper copy of the redacted items with the Court to be 

provided to The Inquirer.

The following filings will be unsealed without redaction: 

 The Commission’s Entry of Appearance filed June 14, 2019;

 The Commission’s Answer to MHS’s Petition for Review filed June 17, 

2019; 

 The Commission’s Entry of Appearance filed on July 29, 2019; 

 The Commission’s Answer to MHS’s Application to Amend filed 

November 25, 2019;

 The Inquirer’s Application to Intervene and Unseal filed December 4, 2019; 

 The Inquirer’s Applications to be Admitted Pro Hac Vice filed December 

10, 2019;
27

 The Inquirer’s Praecipes to Withdraw Applications to be Admitted Pro Hac 

Vice filed December 17, 2019;

 The Inquirer’s Applications to be Admitted Pro Hac Vice filed December 

17, 2019;

 The Inquirer’s Application for Leave to File Supplemental Memorandum in 

Further Support of the Application to Intervene and exhibits filed December 

17, 2019;

 The Inquirer’s Supplemental Memorandum of Law filed December 17, 

2019;

 The Commission’s Answer to The Inquirer’s Application to Intervene and 

Unseal filed December 18, 2019; and

 The Inquirer’s Answer to MHS’s Application to Submit Documents filed

January 7, 2020.

III. Conclusion

The Inquirer did not have to intervene in order to pursue the unsealing of the 

judicial records in this closed matter. The Court recognizes the important 

principles relating to public access to judicial records and the role that the press 

plays in informing the public, the privacy interests involved, and the fact that the 

seal imposed on the record by the Motions Examiner of the Commission remains 

in place, and will grant The Inquirer’s request to unseal to the extent set forth 

above. All other filings, including the certified record filed with the Court by the 

Commission, shall remain under seal as they have at the Commission. To the 

extent the Application is not granted, it is denied without prejudice so that, in the 

event the Commission unseals any portion of the agency record that had been filed 

with this Court as part of the reproduced record, or other circumstances change, 
28

The Inquirer is not precluded from filing a new Application seeking access to 

additional records.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Milton Hershey School, :

Petitioner : CASE SEALED

 :

v. : No. 665 C.D. 2019

 : 

Pennsylvania Human Relations :

Commission, :

Respondent :

O R D E R

NOW, February 11, 2020, after considering the application filed by The 

Philadelphia Inquirer, PBC (The Inquirer), to intervene and unseal the record 

(Application), the answers filed by the Milton Hershey School (MHS), the 

Pennsylvania Human Relations Commission (Commission), and Complainant, an 

intervenor in the underlying petition for review, and oral argument, the Application 

is DISMISSED AS MOOT in part, GRANTED in part, and DENIED 

WITHOUT PREJUDICE in part in accordance with the foregoing opinion. The

Application is DISMISSED AS MOOT to the extent The Inquirer requested to 

intervene in the above-captioned matter for the limited purpose of seeking to 

unseal the docket sheet and judicial records. The Application is GRANTED as set 

forth in the foregoing opinion. MHS, the Commission, and Complainant are 

directed to exchange the proposed redacted copies of the items referenced in the 

foregoing opinion within 10 days of this Order and to promptly file a certificate of 

service with the Court. MHS, the Commission, and Complainant shall have 10 

days to review the proposed redactions and to make a good faith effort to resolve 

any disputes that may arise. The final form of the redacted items shall be filed 
with the Court on March 3, 2020. MHS, the Commission, and Complainant shall 

file an extra paper copy of the redacted items with the Court to be provided to The 

Inquirer. The Application is DENIED WITHOUT PREJUDICE to the extent 

the agency record and supplemental agency record filed by the Commission with 

the Court remains under seal. The Application is otherwise DENIED WITHOUT 

PREJUDICE and the other materials filed with the Court as set forth in the 

foregoing opinion shall remain under seal. In addition, the Application for Leave 

to Respond to MHS’s Brief in Opposition to the Application filed by Complainant 

is GRANTED, and MHS’s Application for Leave to Submit Sealed Documents for 

In Camera Review is DENIED.

_____________________________________

RENÉE COHN JUBELIRER, Judge