Appeal from order of Commonwealth Court, No. 363 C.D. 1972, in case of Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery Association.
Sanford Kahn, General Counsel, with him Robert Englesberg, Assistant General Counsel, and Israel Packel, Attorney General, for appellant.
Robert E. Woodside, with him R. J. Woodside, James W. Nelson, Shearer, Mette, Hoerner & Woodside, and Nelson, Campbell & Levine, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice O'Brien concurs in the result. Concurring Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones joins in this dissenting opinion.
On January 27, 1970, appellant, the Pennsylvania Human Relations Commission, filed a complaint against appellee, the Alto-Reste Park Cemetery Association, alleging a violation of Section 5(i) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P. L. 744, as amended, 43 P.S. § 955(i) (Supp. 1973).*fn1 The basis of this action was appellee's refusal, on account of race, to bury the remains of the late Dr. George
Walker.*fn2 After attempts at conciliation proved futile, public hearings were held in Altoona on April 16, 1970.*fn3 On April 27, 1970, a final order was issued by the Commission directing appellee to end, through specific measures, its racially discriminatory policies.
Appellee appealed this order to the Commonwealth Court; however, this appeal was discontinued by appellee in the belief that a settlement agreement had been reached between it and counsel for the Commission. The Commission, however, finding the proposed consent decree to be unacceptable, on May 20, 1972, issued an amended final order, substantially similar to its original order.
Appellee again appealed to the Commonwealth Court, which affirmed, with modifications, the Commission's amended final order. Alto-Reste Park Cemetery Association v. Pennsylvania Human Relations Commission, 7 Pa. Commonwealth Ct. 203, 298 A.2d 619 (1972). The modifications imposed by the court consisted of deleting the following three paragraphs:
"4. It is hereby ordered that the Respondents write to Mrs. George A. Walker, widow of the late Dr. George A. Walker, a formal public letter of apology for the grief she has suffered due to the refusal of the Respondents to bury the remains of her late husband in December, 1969. Said letter must meet with the approval of the Pennsylvania Human Relations Commission.
"8. The Respondent shall also maintain such records, in writing, as will indicate whether any person is refused burial, and the reasons thereof. A copy of said reasons for refusal of burial should be sent both
to the family of the person refused and to the Pennsylvania Human Relations Commission.
"10. Respondent shall advertise in the 'Altoona Mirror' that it does not discriminate on the basis of race in the sale of all of its cemetery plots. Such advertisement shall be submitted to the Executive Director of the Pennsylvania Human Relations Commission for his approval prior to its publication. Said advertisement shall be published no less than once each week for two consecutive weeks." The propriety of these deletions form the basis of the instant appeal.
Appellant contends that the Commonwealth Court erred in striking out the above noted paragraphs from the Commission's order. Specifically, appellant argues that the Commission's actions were proper in light of the broad statutory mandate conferred upon it by the Legislature to "effectuate [through affirmative action] the purposes of the [Human Relations] Act." Pennsylvania Human Relations Act, supra at § 7(e), 43 P.S. § 957(e). Appellee asserts*fn4 that the Commission did not have subject matter jurisdiction over the present action, since cemeteries were not specifically included within the Human Relations Act's definition of "places of public accommodation" until December 10, 1970, approximately 10 months subsequent to the filing of the instant complaint.*fn5 Act of December 10, 1970, P. L. 882, § 1, 43
P.S. § 954(1) (Supp. 1973). For the reasons set out below, we agree, in part, with appellant's contentions. Accordingly, the order of the Commonwealth Court is affirmed with modifications.
Appellee's jurisdictional argument is not persuasive. In 1955, the Legislature provided that "[i]t shall be an unlawful discriminatory practice . . . (i) For any person being the owner, lessee, proprietor, manager, superintendent, agent or employe of any place of public accommodation, resort or amusement to (1) Refuse, withhold from, or deny to any person because of his race, color, religious creed, ancestry or national origin, either directly or indirectly, any of the accommodations, advantages, facilities or privileges of such place of public accommodation, resort or amusement." Pennsylvania Human Relations Act, supra at § 5(i), 43 P.S. § 955(i) (emphasis added).
The phrase "place of public accommodation", as used in the 1955 Act, was defined as ". . . any place which is open to, accepts or solicits the patronage of the general public, including but not limited to. . . [approximately 50 enumerated places of accommodation] but shall not include any accommodations which are in their nature distinctly private." Pennsylvania
Human Relations Act, supra at § 4(1), 43 P.S. § 954(1) (Supp. 1973) ...