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decided: August 20, 1974.


Appeal from the Order of the Pennsylvania Human Relations Commission in case of Pennsylvania Human Relations Commission, Complainant, v. J. Howard Brandt, Incorporated, Delores Brandt, President, J. Howard Brandt, Secretary-Treasurer, Respondents, No. H-1746.


James S. Kilpatrick, Jr., with him Haws & Burke, for appellants.

Frank Finch, III, Assistant General Counsel, with him Sanford Kahn, General Counsel, for appellee.

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

Author: Kramer

[ 15 Pa. Commw. Page 126]

This is an appeal filed by J. Howard Brandt, Incorporated, Delores Brandt and J. Howard Brandt (hereinafter referred to collectively as Brandt) from a final order of the Pennsylvania Human Relations Commission (Commission) dated June 20, 1973. The Commission concluded that Brandt had committed an unlawful discriminatory practice in violation of Section 5(h)(1) of the Pennsylvania Human Relations Act (hereinafter Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(h)(1).

This case had its beginning when in February 1972 the Commission sent out employees called "testers" into an area of eastern Pennsylvania known as the Main Line. Testers are used by the Commission to seek information concerning available rental properties and to determine if real estate brokers are violating the Act. Testers are sent out in teams of two employees, one being of the white race, and the other of the black race. The white tester first enters a real estate broker's office, and under a pre-arranged format, presents himself as a prospective tenant to the broker

[ 15 Pa. Commw. Page 127]

    or a person in his office. After the broker or the person in charge of the office responds to the inquiry on whether or not an apartment or house is available for rental, the white tester leaves the premises and immediately informs his team member of the statements made in the broker's office. Within a few minutes, the black tester enters the same office and makes a similar inquiry on the availability of rental properties, and after receiving a reply, likewise retires to compare notes with the first tester. From the many cases which this Court has reviewed involving testers, it is apparent that the procedure thereafter is to make a determination on whether to file a complaint against the broker and others for violation of the Act. Sections 7 and 9 of the Act, 43 P.S. §§ 957 and 959, give the Commission the power to investigate and initiate complaints charging unlawful discriminatory practices, and we specifically hold that the use of testers is a permissible method under the statute to assist the Commission in making a determination on whether a complaint should be filed. The issue of entrapment raised by Brandt has no merit. Having initially upheld the use of testers, we now turn to the facts of this case.

On February 3, 1972, Gerard Rugel (Rugel), who is a white male employee of the Commission, entered the Brandt office seeking information about available rental property. He spoke to a young, tall man with brown hair, whose name he did not ascertain. Rugel asked for "one or two-bedroom apartments or houses" and did not request any specific area. He was offered "at Penn Wynne, a three-bedroom house" for a rental of $300 per month and was told that nothing else was available. According to Rugel, the entire transaction took "approximately five minutes or so, ten minutes, I'm not sure of the exact time." It was stipulated for the record that Rugel was not a bona fide prospective

[ 15 Pa. Commw. Page 128]

    tenant and that he was in the Brandt office for the purpose of testing. During his short visit to Brandt's office, Rugel saw no one other than the young man to whom he spoke.

After Rugel left Brandt's office, he immediately informed Margaret Mitchell (Mitchell), who was seated in an automobile parked nearby, of what had transpired. Mitchell is a female black employee of the Commission. Approximately ten minutes after Rugel left Brandt's office, Mitchell entered the same office (approximately 12 feet by 20 feet in size) and spoke to Delores Brandt. Mitchell did not see any other person in the office. Mitchell represented that her husband was "doing a residency at Lankenau Hospital" and that she would be "interested in a one, two, or three-bedroom apartment or a house in the general vicinity of Lankenau Hospital," for which she was willing to pay a rental "between $125 and $375." Mitchell testified that Mrs. Brandt said that she was sorry there was nothing available, and that she would take Mitchell's name and phone number and get in touch with her as soon as possible, when something was available. The whole operation of both testers was completed in about 25 minutes.

Thereafter, on April 28, 1972, a complaint was signed by the Executive Director of the Commission charging Brandt with a violation of the Act which took place on or about February 3, 1972 "concerning a three-bedroom property in Pennway, Pennsylvania." (Emphasis added.) It should be noted here that there is nothing in the record of the case submitted to this Court which could be deemed to be proof of service of the complaint or a copy thereof upon Brandt, and none was offered at the hearing. During the cross-examination of Rugel, it was developed that at some time during June of 1972 (the exact date is not disclosed anywhere) Rugel returned to the Brandt office for the

[ 15 Pa. Commw. Page 129]

    purpose of serving the complaint or a consent order. The record indicates that although the alleged incident occurred on February 3, 1972, the first time Brandt was given any knowledge of an investigation or charge was at the June 1972 confrontation. The matter came on for hearing on December 28, 1972, before three commissioners of the Commission. At this hearing, Rugel was unable to identify the young man with whom he spoke, either by name or by other identification, until after a former salesman of Brandt's was called to testify on behalf of the respondents. After the salesman's testimony, at the request and call of the Chairman of the Commission, Rugel was permitted to identify the salesman as the person with whom he spoke on February 3, 1972. The record indicates that this salesman was present in the hearing room during the entire proceedings.

The respondents and all of their employees testified that they had no recollection of either Rugel or Mitchell coming to the office on February 3, 1972, and that none of them had ever seen either of the two Commission testers prior to June of 1972, when Rugel appeared at the office.

There is evidence in the record which would support the Commission's eighth finding of fact which reads: "8. J. Howard Brandt, Inc. lists all available rentals on a paper attached to a clipboard which is on top of a filing cabinet in their office. All employees of J. Howard Brandt, Inc. have knowledge of and access to this clipboard so that if any rentals were available, each employee would be aware of them, or know where to find the information." However, there is nothing in this record which would indicate that the young man with whom Rugel spoke or Mrs. Brandt ever referred to a clipboard. There is also no evidence that in fact rental housing was available in the Brandt office, that either of the testers asked to see the clipboard

[ 15 Pa. Commw. Page 130]

    or any other list of available rentals, that Rugel ever asked to see the rental property he stated was proferred as available, or that the actions of any person in the Brandt office disclosed any outward appearance of discrimination toward Mitchell. The Commission's entire case rested upon the scant testimony noted above. The Commission offered no proof whatsoever concerning any "Three bedroom property in Pennway, Pennsylvania." (Emphasis added.)

Brandt was charged with, and held to be in violation of Section 5(h)(1) of the Act, which provides:

"It shall be an unlawful discriminatory practice . . .

"(h) for any person to:

"(1) refuse to sell, lease, finance or otherwise to deny or withhold commercial housing from any person because of the race, color, religious creed, ancestry, sex or national origin of any prospective owner, occupant or user of such commercial housing, or to refuse to lease commercial housing to any person due to use of a guide dog because of the blindness of the user."

Our review is limited to a determination of whether the Commission's adjudication is in accordance with law and whether any finding of fact made in support of its adjudication is not sustained by substantial evidence. Wilkinsburg School District v. Human Relations Commission, 6 Pa. Commonwealth Ct. 378, 295 A.2d 609 (1972). "Substantial evidence" means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. A. P. Weaver & Sons v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 499, 284 A.2d 515 (1971).

In recent cases we have recognized that the Act (Section 5(h)(1)) was intended to prohibit the withholding of information on available housing because of race, color, etc. See Tomlinson Agency v. Pennsylvania ...

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