Appeal from order of Superior Court, March T., 1971, No. 18, affirming order of Court of Common Pleas of Dauphin County, No. 216 Commonwealth Docket 1969, in case of Commonwealth of Pennsylvania Human Relations Commission v. Loyal Order of Moose, Lodge No. 107.
Roy Yaffe, Assistant Attorney General, with him Stanton W. Kratzok, Assistant Attorney General, for Commonwealth, Human Relations Commission, appellant.
Thomas D. Caldwell, Jr., with him Caldwell, Clouser & Kearns, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Chief Justice Jones.
On December 29, 1968, K. Leroy Irvis, a Negro, was brought into the Loyal Order of Moose, Lodge No. 107, appellee, as the guest of a member in good standing of the appellee lodge. Three other guests of the involved member were also present, but Mr. Irvis was the only non-Caucasian member of the party. Appellee's personel refused to serve the party in either its dining room or its bar, and there is no dispute that that refusal was based solely on the fact that one of the members of the party was a Negro. Irvis complained to the Pennsylvania Human Relations Commission, which, on January 13, 1969, instituted a complaint against the appellee lodge, alleging violations of the Public Accommodations Provisions of the Act of October 27, 1955, P. L. 744, as amended by the act of February 28, 1961, P. L. 47, 43 P.S. § 951, et seq., known as the Pennsylvania Human Relations Act. The lodge filed an answer to the complaint, in which it admitted the essential facts, but denied that it maintained a place of public accommodation and therefore claimed that the commission lacked jurisdiction and authority to deal with the refusal of service incident. In accordance with the provisions of the Human Relations Act, the commission conducted an investigation and found probable cause to proceed. Efforts to adjust the matter by conference, conciliation and persuasion were unsuccessful, and the commission then held a public hearing before hearing examiners. The parties entered into an agreed statement of facts which was adopted by the hearing examiners as their findings of fact, the pertinent portions of which are as follows:
"2. The respondent, Loyal Order of Moose, Lodge No. 107, is a private, non-profit Pennsylvania corporation of the first class, operating a club for the entertainment of its members at premises 225 State Street, Harrisburg, Dauphin County, Pennsylvania.
"3. The respondent is one of many lodges throughout the United States affiliated with Loyal Order of Moose, and operates pursuant to the Constitution and General Laws of the Loyal Order of Moose, . . .
"4. In conjunction with the operation of its club, the respondent operates a dining room and a bar for the sale of liquor or malt and brewed beverages upon its said premises.
"5. The said bar is operated by respondent pursuant to a Catering Club License No. CC-109 issued by the Liquor Control Board of the Commonwealth of Pennsylvania.*fn1
"6. From time to time the respondent caters meals or banquets upon its said premises for the benefit of organizations other than Loyal Order of Moose and individuals other than members of Loyal Order of Moose, at which times respondent makes its premises available to such organizations and individuals without discrimination because of race or color.
"7. The respondent maintains a practice and policy of accepting members of the Caucasian race only.
"8. The respondent permits a member of any lodge of Loyal Order of Moose to bring Caucasian guests upon the premises operated by it, particularly in its
dining room and at its bar, but maintains a practice and policy of refusing to permit any such member to bring non-Caucasian guests therein.*fn2
"9. On Sunday, December 29, 1968, at approximately 6:15 o'clock p.m., Harry A. Englehart, Jr., Caucasian and a member in good standing of Loyal Order of Moose, brought the following four guests upon the premises operated by respondent: K. Leroy Irvis, Negro; Herbert Fineman, Caucasian; James F. Prendergast, Caucasian, and Vincent Scarcelli, Caucasian.
"10. At the said time and place, the respondent refused to serve the said party of five men either in ...