No. 132 March Term, 1978, Appeal from the Order and Decree of the Commonwealth Court of Pennsylvania at No. 1358 C.D. 1978, setting aside the Final Order of the Pennsylvania Human Relations Commission at Commission Docket No. P-1114 and P-1115.
Robert S. Mirin, Gen. Counsel, Pa. Human Relations Commission, Harrisburg, for appellant.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Nix, J., filed an opinion in support of affirmance. Larsen, J., filed an opinion in support of affirmance in which Flaherty, J., joins. Roberts, J., filed an opinion in support of reversal in which Eagen, C. J., and O'Brien, J., join.
The Court, being equally divided, the order of the Commonwealth Court is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
During April and May 1975, the mothers of Natalie Thunell and Lisa Arture filed complaints with the Pennsylvania Human Relations Commission. These complaints alleged that the Mars Community Boys Baseball Association (Mars) had violated the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq. (Act), by refusing to allow their daughters to participate in the association solely on the basis of their sex. After an investigation, attempts at conciliation, and a public hearing, the Commission concluded that Mars maintained sex-segregated admissions, policies, and practices in violation of Section 3 and Section 5(i)(1) of that Act. On October 5, 1977, the Commission entered a final order and decree directing Mars to cease and desist its sex-based restrictive admission practices.
Mars failed to obey the Commissions' order and the Commission applied to the Commonwealth Court for an enforcement order pursuant to 43 P.S. § 960. The Commonwealth Court correctly recognized that at the time of the lawsuit, the Commission's jurisdiction under Section 5(i)(1) was limited to remedying unlawful discrimination in places of public accommodation on the basis of "race, color, religious creed, ancestry, or national origin."*fn1 Since Section 5(i)(1) did not include the word "sex," the Commonwealth Court held that the Commission acted beyond its statutorily prescribed jurisdiction.
It is a fundamental precept of administrative law that an agency only has those powers which the legislature had delegated to it. Davis, Administrative Law §§ 2.01-2.19 (1972). We have consistently recognized that an administrative agency's authority must be conferred by legislative language, clear and unmistakable, and that the agency must act within the exact limits defined. Pa. Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 382 A.2d 731 (1978); Volunteer Firemen's Relief Ass'n. v. Minehart, 425 Pa. 82, 227 A.2d 632 (1967); Green v. Milk Control Commission, 340 Pa. 1, 16 A.2d 9 (1940). The legislature has given the Human Relations Commission broad powers to effectuate its purpose of eliminating unlawful discriminatory practices. But under the pretext of attaining that purpose, the Commission may not ignore the letter of the statute concerning the agency's scope of power, Pa. Human Relations Commission v. St. Joe Minerals Corp., supra ; see also Philadelphia v. Human Relations Commission, 4 Pa. Commw. 506, 287 A.2d 703 (1972); and delve into areas of discrimination that the legislature has withheld from the Commission's jurisdiction.
The Opinion in Support of Reversal wrongly concludes that Section 5(i)(1) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, 43 P.S. § 953 (1964), as written prior to amendments in 1978, provided the Human Relations Commission with jurisdiction over appellant's complaint that appellee engaged in unlawful discriminatory practices by preventing young girls from participating in appellee's baseball league. Their opinion concedes that prior to the amendments contained in the Act of November 26, 1978, P.L. 292, No. 309, § 1, effective January 25, 1979, Section 5(i)(1) did not bar discrimination on the basis of sex regarding places of public accommodation, resort or amusement. At 1246-1247.
The Opinion in Support of Reversal glosses over this crucial statutory failure by citation to other sections in the Act concerning gender based discrimination. These other sections, unlike section 5(i)(1), are not determinative of the Commission's jurisdiction. The Act gives the Commission the power and the duty "[t]o initiate, receive, investigate and pass upon complaints charging unlawful discriminatory practices." § 7(f), 43 P.S. § 957(f) (emphasis added). Section 5 contains the Act's list of unlawful discriminatory practices with which the Commission should be concerned.
Unlawful discriminatory practices
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or the Commonwealth of Pennsylvania:
(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 ...