10 Pa. Commw. 99 | Pa. Commw. Ct. | 1973
Lead Opinion
Opinion by
This is an appeal from a December 20, 1972, final order of the Pennsylvania Human Relations Commission (Commission) ordering Lewis Straw and Marian Straw (Straw) to cease and desist from committing unlawful discriminatory practices as defined in Section 5(h) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P. L. 744, as amended, 43 P.S. §955(h). The Commission also ordered Straw to pay to Deborah Wilson (Wilson) the sum of $3500 for “the mental anguish, humiliation, inconvenience and disruption of normal family life which she experienced . . . .”
From the record, we note the following pertinent facts. Straw is the owner of a small apartment building located in Harrisburg. In response to a newspaper advertisement, Wilson called Straw for the purpose of making an inquiry on her possible leasing of Straw’s apartment. Upon learning that Wilson was of the Black race, Straw denied her opportunity to lease the apartment. Wilson thereupon filed a complaint with the Commission charging Straw with committing an unlawful discriminatory practice under the Act. The following day the Commission sent one of its white female investigators to the office of Straw for the purpose of determining whether Straw would lease the apartment to her. The record discloses that Straw had an anonymous phone call advising him of a Commission investigation, and Straw advised the Commission investigator that the apartment was not available for the reason that a deposit had been placed on the apartment by another person. On July 19, 1971, the Commission sent another white female investigator to the office of
One of the issues raised by Straw is whether the record of the evidence presented adequately supports the findings of fact and conclusions of law found in the Commission’s adjudication. We have carefully read the entire record in this case and conclude that there is sufficient substantial evidence in the record to support the Commission’s findings and conclusions that Straw committed a discriminatory act in violation of Section 5(h) of the Act in refusing Wilson the opportunity to lease an apartment.
As stated in the Act (43 P.S. §960), our scope of review is governed by the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. §1710.1 et seq., whereby we are to determine whether the Commission’s adjudication “is not in accordance with law” or whether “any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence.” See also Wilkinsburg School District v. Human Relations Commission, 6 Pa. Commonwealth Ct. 378, 295 A. 2d 609 (1972); Pennsylvania Human Relations Commission v. Chester School District, 209 Pa. Superior Ct. 37, 224 A. 2d 811 (1966).
There is another portion of Straw’s argument, however, which does deserve mention. The amended complaint alleges a violation of “section 5(h) (1)” of the Act. The Commission concluded that Straw was in violation of not only Section 5(h)(1), but also of Section 5(h)(6) of the Act. Section 5(h)(1) refers to a person refusing to sell, lease, finance or otherwise to deny or withhold commercial housing from another person because of race, etc. Section 5(h)(6) is entirely different and provides for a violation if any person “'make any inquiry, elicit any information, make or keep any record or use any form of application, containing questions or entries concerning race . . etc. Due
The third and final issue raised by Straw is more difficult. In its adjudication, the Commission concluded that Wilson was entitled to “compensation” from Straw “for the mental anguish and humiliation, and for the inconvenience and disruption of normal family life, which she experienced as a direct result of the unlawful refusal to rent to her because of her race.” In its order, the Commission ordered the payment of $3500 as compensation. Straw contends that the Commission does not have authority to award such compensation.
We have this date filed contemporaneously herewith an opinion in the case of Zamantakis v. Pennsylvania Human Relations Commission, No. 1300 C.D. 1972,
The Commission shall establish rules or practice to govern, expedite and effectuate the foregoing procedure and its own actions thereunder.” (Emphasis added.) As we said in Zamantahis, the emphasized portions of the above section of the Act do not give, with any specificity, the Commission authority to award compensation or compensatory damages to a complainant. We cannot read into the words “respondent... to take such affirmative action,” a legislative intent that the respondent may be ordered to pay compensation or compensatory damages.
In summary then, under the provisions of Section 44 of the Administrative Agency Law, 71 P.S. §1710.44, paragraphs 3 and 4 of the Commission’s final order, relating to the payment of $3500 as compensation to Wilson, are invalid, and the remaining provisions of the Commission’s final order should be affirmed. Therefore, we
Order
And Now, this 14th day of August, 1973, it is hereby ordered that paragraphs 3 and 4 of the Final Order of the Pennsylvania Human Relations Commission, dated December 20, 1972, in the above matter are set aside, and the remaining provisions of said Final Order are affirmed.
Modified, at 427 Pa. 157, 233 A. 2d 290 (1967).
Also filed simultaneously with this opinion is another related case captioned St. Andrews Development Company v. Pennsylvania Human Relations Commission, No. 32 C.D. 1973.
Dissenting Opinion
I dissent from the court’s holding that the Pennsylvania Human Relations Commission may not order the payment of compensatory damages to the victim of an unlawful discriminatory practice as I did in Zamantakis v. Pennsylvania Human Relations Commission, 10 Pa. Commonwealth Ct. 107, 308 A. 2d 612 (1973), No. 1300 C.D. 1972. A careful reading of the record convinces me, however, that the amount of this award is excessive and is in fact based upon statements made by Mr. Straw to an undercover agent of the Commission investigating a complaint. We may not agree with the respondent’s opinions, but he is entitled to have them and to express them. In any case, they could not have been the occasion of mental distress to the complainant, Deborah Wilson, not having been made in her presence. Therefore, the amount of Three Thousand Five Hundred Dollars ($3500.00) was, in my opinion, excessive for the injuries testified to by the complainant and I would reduce it to the sum of Seven Hundred and Fifty Dollars ($750.00).
Concurrence Opinion
Concurring Opinion by
I concur in the result herein reached by the majority, subject again to the reservations expressed in my Concurring Opinion in Zamantakis v. Pennsylvania Human Relations Commission, 10 Pa. Commonwealth Ct. 107, 308 A. 2d 612 (1973).