Commonwealth by Atty. General Fisher v. Tiger Schulmann's Karate Centers, et al. (Dissenting Opinion)
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[J-72-2002] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT COMMONWEALTH OF PENNSYLVANIA, : ACTING BY ATTORNEY GENERAL D. : MICHAEL FISHER, : : Appellant : : : v. : : : TIGER SCHULMANN'S KARATE : : CENTERS A/K/A UNITED AMERICAN KARATE AND PHILLY KARATE, INC. : D/B/A TIGER SCHULMANN'S KARATE : CENTERS AND QUAKERTOWN : : KARATE, INC. D/B/A TIGER SCHULMANN'S KARATE AND FITNESS : : CENTER AND WILLOW GROVE KARATE, INC. D/B/A TIGER : SCHULMANN'S KARATE AND FITNESS : CENTER AND TIGER SCHULMANN'S : KARATE AMD FITNESS CENTER AND : DANIEL SCHULMANN, : : Appellees : No. 57 MAP 2001 Appeal from the Order of the Commonwealth Court entered April 6, 2001 at No. 5 MD 1997. 771 A.2d 107 (Pa. Cmwlth. 2001) ARGUED: April 8, 2002 DISSENTING OPINION MR. JUSTICE NIGRO DECIDED: December 19, 2002 As I disagree with the majority that a martial arts facility is not a health club for purposes of the Health Club Act, I must respectfully dissent. The Act defines a health club as: A person, firm, corporation, organization, club or association engaged in the sale of memberships in a health spa, racquet club, figure salon, weight reduction center or other physical culture service enterprise offering facilities for the preservation, maintenance, encouragement or development of physical fitness or physical well-being. 73 P.S. ยง2162 (emphasis added). This definition plainly includes martial arts centers, which clearly are, at least in my view, "physical culture service enterprise[s] offering facilities for the preservation, maintenance, encouragement or development of physical fitness or well-being." While the majority essentially finds that karate does not preserve, maintain, encourage, or develop physical fitness or well-being, such a position completely conflicts with my understanding of what karate entails. The art of karate, as even Appellees noted in their advertisements, is a physical activity that builds and tones muscle and increases cardiovascular fitness. That said, I have trouble reaching the conclusion that Appellees are not, at a minimum, physical culture service enterprises engaged in encouraging physical well-being. Thus, unlike the majority, I agree with the Commonwealth that martial arts centers, such as Appellees, squarely fit within the Health Club Act's definition of a health club and therefore, that Appellees are required to comply with the Health Club Act. [J-72-2002][M.O. Zappala, J.] - 2
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