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WOODWARD v. BOWERS

March 25, 1986

DAVID R. WOODWARD, MARY H. WOODWARD, Individually and on behalf of BETH R. WOODWARD, a Minor, Plaintiffs
v.
DAVID W. BOWERS, in his official capacity as Recorder of Deeds of Franklin County, Pennsylvania, Defendants



The opinion of the court was delivered by: HERMAN

 HERMAN, U.S.D.J.

 In cases involving allegations of racial discrimination, parties, their attorneys and in many cases even judges are too ready to let their emotions override their objectivity.

 It is wise therefore to avoid the temptation to make sweeping rulings in such a case and to narrowly define the problem before us and to stick closely to sound precedent and to time-honored principles of statutory construction as we proceed.

 In this case, we are asked on a motion to dismiss to answer the question of whether a Recorder of Deeds violates the Civil Rights Act of 1968 by accepting for filing a deed that refers to a prior recorded building lot plan that contains a racially restrictive covenant. The facts as alleged in the complaint are as follows. Plaintiffs purchased their house in March, 1982, and received a deed from their grantors containing the restriction:

 
Subject, however, to building and other restrictions attached to and made part of the plan of Coldbrook Land Company, Inc., dated November 1, 1924, and recorded in Franklin County Deed Book Volume 216, Page 450.

 (emphasis supplied). After purchasing their house, plaintiffs filed their deed with the Recorder of Deeds of Franklin County. The Recorder accepted the deed and recorded it at Deed Book Volume 855, page 32.

 The restriction contained in plaintiffs' deed refers to the plan of the Coldbrook Land Company, also recorded in the Recorder of Deeds office. This plan contains the provision, among others, that "no lots of the Company shall ever be sold to anyone of negro blood." The gravamen of plaintiffs' complaint in this case is that the actions of the Recorder of Deeds in recording and filing plaintiffs' deed violates Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3604(c), section 1978 of the Civil Rights Act of 1866, 42 U.S.C. § 1982, and the Pennsylvania Human Relations Act, 43 P.S. § 955(h)(5). Accordingly, plaintiffs have asked for several kinds of injunctive and declaratory relief, including an order that the Recorder of Deeds shall "take appropriate steps to ensure that no deed or instrument is recorded, printed or published which, on its face, indicates a preference, limitation or discrimination with respect to the sale or rental of a dwelling or commercial housing based upon race or color." Plaintiffs' Complaint at 8.

 The defendant Recorder of Deeds has now filed a motion to dismiss, alleging that plaintiffs have failed to state a cause of action under any of the statutory provisions detailed above.

 I. TITLE VIII CLAIM.

 Title VIII of the Civil Rights Act of 1968 is aimed at providing fair housing opportunities for all. Section 804 of that title, 42 U.S.C. § 3604, prohibits discrimination in the sale or rental of housing on the basis of race, color, religion, sex, or national origin. Plaintiffs claim that in accepting their deed for filing, and in recording that deed and others like it, the Recorder of Deeds has violated subsection (c) of Section 804, 42 U.S.C. § 3604(c). That subsection provides,

 it shall be unlawful -

 
. . . .
 
(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex or national origin, or ...

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