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MARIAN STRAW AND LEWIS STRAW v. COMMONWEALTH PENNSYLVANIA (08/14/73)

decided: August 14, 1973.

MARIAN STRAW AND LEWIS STRAW, APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, APPELLEE



Appeal from the Order of the Pennsylvania Human Relations Commission in case of (Mrs.) Deborah J. Wilson v. Marian Straw and Lewis Straw, Docket No. H-1573.

COUNSEL

Walter W. Wilt, with him Hepford, Zimmerman & Swartz, for appellants.

Sanford Kahn, General Counsel, with him Robert Englesberg, Assistant General Counsel, and Israel Packel, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer. Concurring Opinion by Judge Blatt. Dissenting Opinion by Judge Rogers.

Author: Kramer

[ 10 Pa. Commw. Page 101]

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

[ 10 Pa. Commw. Page 102]

Straw for the same purpose. Straw took this second investigator to the apartment for a showing, but stated to her that the apartment was not available because of the deposit.

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).*fn1 Straw also raises an issue based upon the fact that two days prior to the hearings in this matter, the Commission amended the complaint changing the date upon which the alleged unlawful discriminatory practice took place. The original complaint stated that that date was "7-15-71." The amended complaint alleges that date to be "7-19-72," which later date was stipulated to be in error in that the allegation in the amended complaint should have read "7-19-71." The Commission

[ 10 Pa. Commw. Page 103]

    concluded that the record would not support a discriminatory act to have occurred on "July 19, 1971" but concluded that there was sufficient evidence in the record to support a discriminatory act on "July 15, 1971." Straw argues that the filing of the amended complaint constituted a withdrawal of the original complaint (See Fleming v. Strayer, 367 Pa. 284, 80 A.2d 786 (1951)). As a result of these facts, Straw contends that the Commission erred in concluding that Straw was in violation on the date mentioned in the original complaint. We have carefully reviewed the record in this case and conclude that Straw was on notice of the incidents that occurred between July 15, 1971 through July 19, 1971, and that he had reasonable notice of the dates of the alleged incident. The incident of which Wilson complains was a continuing one between those two dates. Furthermore, the complaint does not restrict itself to the one date, namely July 19, 1971; rather, the complaint ...


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