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ROBERT E. SPAN v. COMMONWEALTH PENNSYLVANIA (10/03/74)

decided: October 3, 1974.

ROBERT E. SPAN, SR., MANAGER, WALNUT GARDEN APARTMENTS, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, APPELLEE. WALNUT GARDEN APARTMENTS, INC., APPELLANT, V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, APPELLEE



Appeals from the Order of the Pennsylvania Human Relations Commission in case of Gwendolyn A. Lee and Ernest L. Yokely v. Walnut Garden Apartments, Inc., Robert E. Span, Sr., Manager, No. H-1654.

COUNSEL

Gilbert E. Morcroft, for appellants.

Sanford Kahn, with him Mark A. Senick, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Rogers.

Author: Wilkinson

[ 15 Pa. Commw. Page 335]

Complainants filed a complaint with the Pennsylvania Human Relations Commission charging the appellants with refusing to rent an apartment to them because of their race, Black, in violation of Section 5(h) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. ยง 955(h) (Supp. 1974-1975). Appellants filed an answer denying the charges and alleging that if complainants did request to rent an apartment, the request was denied either because the apartment was to be occupied by more than two persons, which was contrary to appellants' policy, or because no vacancy existed.

The matter came on for hearing and testimony was offered by complainants, as well as by a white woman who accompanied them and an employe of the Pennsylvania Human Relations Commission. Appellants offered

[ 15 Pa. Commw. Page 336]

    one witness, the wife of appellant, Span. The testimony was contradictory both as to whether there was an apartment available and as to whether appellants had in fact a policy against renting to anyone who would have the apartment occupied by more than two people. The evidence of the complainants, if believed, clearly supports the charges. The Commission chose to believe the complainants and their witnesses and determined that appellants had engaged in unlawful discriminatory practices as charged.

The law is quite clear that if there is substantial evidence to support the Commission's findings, this Court cannot disturb them. Straw v. Pennsylvania Human Relations Commission, 10 Pa. Commonwealth Ct. 99, 308 A.2d 619 (1973). If believed, which it was by the Commission here, the testimony of complainants and their witnesses clearly establishes that an apartment was available and that a white applicant was told that it was available and was invited back to see it that evening with her husband and child. On the other hand, the Black applicants were told that there was no apartment available.

Having found that discriminatory practices had taken place, the Commission entered an order to which the appellants except as being beyond the Commission's authority. We must agree with the appellants with regard to some portions of the order.

We are not unmindful of the decision of our Supreme Court in Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery Association, 453 Pa. 124, 306 A.2d 881 (1973), wherein Justice Roberts sets forth the broad powers of the Commission to frame an order that not only provides "an effective remedy for the individual aggrieved, but also to guard against and deter the same discriminatory action from recurring, to ...


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