Com. Human Relations Commission v. Loyal Order of Moose, Lodge No. 107

• Decision Date: 31 July 1972
• Docket Number: No. 107,A,107
• Citation: 294 A.2d 594,448 Pa. 451
• Parties: COMMONWEALTH of Pennsylvania, HUMAN RELATIONS COMMISSION, Appellant, v. LOYAL ORDER OF MOOSE, LODGEppellee.
• Court: Pennsylvania Supreme Court

Page 594

294 A.2d 594

448 Pa. 451

COMMONWEALTH of Pennsylvania, HUMAN RELATIONS COMMISSION, Appellant, v. LOYAL ORDER OF MOOSE, LODGE No. 107, Appellee.

No. 107.

Supreme Court of Pennsylvania.

July 31, 1972.

Rehearing Denied Sept. 13, 1972.

Appeal dismissed Dec. 11, 1972.

Roy Yaffe, Acting Gen. Counsel, Stanton W. Kratzok, Asst. Attys. Gen., Philadelphia, for appellant.

Thomas D. Caldwell, Jr., Caldwell, Clouser & Kearns, Harrisburg, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

On December 29, 1968, K. Leroy Irvis, a Negro, was brought into the Loyal Order of Moose, Lodge No. 107, appellee, as the guest of a member in good standing of the appellee lodge. Three other guests of the involved member were also present, but Mr. Irvis was the only non-Caucasian member of the party. Appellee's personnel refused to serve the party in either its dining room or its bar, and there is no dispute that that refusal was based solely on the fact that one of the members of the party was a Negro. Irvis complained to the Pennsylvania Human Relations Commission, which, on January 13, 1969, instituted a complaint against the appellee lodge, alleging violations of the Public Accommodations Provisions of the Act of October 27, 1955, P.L. 744, as amended by the Act of February 28, 1961, P.L. 47, 43 P.S. § 951, et seq., known as the Pennsylvania Human Relations Act. The lodge filed an answer to the complaint, in which it admitted the essential facts, but denied that it maintained a place of public accommodation and therefore claimed that the commission lacked jurisdiction and authority to deal with the refusal of service incident. In accordance with the provisions of the Human Relations Act, the commission conducted an investigation and found probable cause to proceed. Efforts to adjust the matter by conference, conciliation and persuasion were unsuccessful, and the commission then held a public hearing before hearing examiners. The parties entered into an agreed statement of facts which was adopted by the hearing examiners as their findings of fact, the pertinent portions of which are as follows:

'2. The respondent, Loyal Order of Moose, Lodge No. 107, is a private, non-profit Pennsylvania corporation of the first class, operating a club for the entertainment of its members at premises 225 State Street, Harrisburg, Dauphin County, Pennsylvania.

'3. The respondent is one of many lodges throughout the United States affiliated with Loyal Order of Moose, and operates pursuant to the Constitution and General Laws of the Loyal Order of Moose, . . ..

'4. In conjunction with the operation of its club, the respondent operates a dining room and a bar for the sale of liquor or malt and brewed beverages upon its said premises.

'5. The said bar is operated by respondent pursuant to a Catering Club License No. CC--109 issued by the Liquor Control Board of the Commonwealth of Pennsylvania. ¹

'6. From time to time the respondent caters meals or banquets upon its said premises for the benefit of organizations other than Loyal Order of Moose and individuals other than members of Loyal Order of Moose, at which times respondent makes its premises available to such organizations and individuals without discrimination because of race or color.

'7. The respondent maintains a practice and policy of accepting members of the Caucasian race only.

'8. The respondent permits a member of any lodge of Loyal Order of Moose to bring Caucasian guests upon the premises operated by it, particularly in its dining room and at its bar, but maintains a practice and policy of refusing to permit any such members to bring non-Caucasian guests therein. ²

'9. On Sunday, December 29, 1968, at approximately 6:15 o'clock p.m., Harry A. Englehart, Jr., Caucasian and a member in good standing of Loyal Order of Moose, brought the following four guests upon the premises operated by respondent: K. Leroy Irvis, Negro; Herbert Fineman, Caucasian; James F. Prendergrast, Caucasian; and Vincent Scarcelli, Caucasian.

'10. At the sait time and place, the respondent refused to serve the said party of five men either in its dining room or at its bar.

'11. Such refusal of service was because K. Leroy Irvis, one of the members of the party, is a Negro.'

Based upon the agreed statement of facts and the arguments of counsel, the hearing examiners filed an opinion in which they found the lodge to be in violation of the Human Relations Act and recommended remedial action to the commission. The commission accepted the recommendation of the hearing examiners and entered an order as follows:

'1. That the respondent, Loyal Order of Moose, Lodge No. 107, its officers, agents and employes, shall cease and desist from directly or indirectly refusing, withholding from or denying to Negro guests of club members or to other persons who are guests of club members, because of their race, color, religious creed, ancestry or national origin, the accommodations, advantages, facilities or privileges of the dining room and bar operated, owned or controlled by the respondent in the City of Harrisburg or elsewhere in the Commonwealth of Pennsylvania, so long as the respondent maintains a policy or practice permitting members to bring their guests to the said dining room or bar.

'2. That the respondent, Loyal Order of Moose, Lodge No. 107, its officers, agents and employees, shall cease and desist from refusing, withholding from or denying to Negroes or to other persons because of their race, color, religious creed, ancestry or national origin, the full enjoyment of any function, facility or accommodation owned, operated or controlled by the respondent in the City of Harrisburg or elsewhere in the Commonwealth of Pennsylvania, which is open to non-members or to any portion of the general public or in which the respondent accepts or solicits the patronage of non-members or of any portion of the general public.

'3. That the respondent, Loyal Order of Moose, Lodge No. 107, shall take the following affirmative action which in the judgment of the Commission will effectuate the purposes of the Pennsylvania Human Relations Act:

'a. Instruct all members of its House Committee, its officers, managers and employees, in writing to comply with the requirements of paragraphs 1 and 2 of this Final Order. Copies of such written instructions, signed by all of the respondent's officers, managers, employes and House Committee members and acknowledging receipt and understanding thereof shall be transmitted to the Commission by the respondent; and

'b. Notify all members belonging to the respondent Lodge, in writing, that henceforth the policy and practice of the respondent will be to serve any guest of a member regardless of his race, religion or national origin, so long as the respondent permits members to bring guests upon its premises. A copy of such written communication shall likewise be transmitted to the Commission by the respondent.'

The lodge appealed the order of the commission to the Court of Common Pleas of Dauphin County, sitting as Commonwealth Court. That court reversed the order of the commission, and the commission appealed to the Superior Court. A divided Superior Court affirmed the order of the Court of Common Pleas of Dauphin County, ³ and we allowed an appeal.

The essential question which must be determined in this matter is whether the appellee lodge, specifically its dining room and bar, is a place of public accommodation as to guests and, therefore, subject to the anti-discrimination provisions of the Human Relations Act. The Commission, of course, so found, but the Court of Common Pleas of Dauphin County, rejected that finding, and its conclusion on that key issue was affirmed by the Superior Court. ⁴

We are in agreement with the commission and the Superior Court dissenters.

Section 5 of the Human Relations Act reads in part as follows:

'It shall be an unlawful discriminatory practice, . . . in the case of a fraternal corporation or association, unless based upon membership in such association or corporation . . .

'(i) for any person being the owner, lessee, proprietor, manager . . . of any place of public accommodation . . . to

'(1) Refuse, withhold from, or deny to any person because of his race, color . . . either directly or indirectly, any of the accommodations, advantages, facilities or privileges of such place of public accommodation, . . .'

We believe that the Superior Court dissenters were correct in concluding that 'by its practice of opening its dining room to non-members, subject only to the limitation that they be of the Caucasian race and invited by a member, (the lodge) has brought itself within the ambit of a 'public accommodation" as defined by the act. Having done so, it has also brought itself within the prohibition of § 5, as above set out, at least to the extent of its dining and bar facilities. Section 4 of the act, 43 P.S. § 954, defines a place of public accommodation as 'any place which is open to, accepts or solicits the patronage of the general public . . . but shall not include any accommodations which are in their nature distinctly private.' The lodge concedes that any member of the general public who is of the Caucasian race and who is invited by a member of the lodge is welcome in its dining room. As aptly stated by the Superior Court dissenters:

'The interests of privacy and exclusiveness of association which the Act acknowledged by creating its exclusion for fraternal organizations have been compromised by the policies of the organization itself. Any member of the public, regardless of affection or disaffection for the (lodge) and regardless of eligibility for membership (as in the case of women and children) may intrude upon the privacy and exclusiveness of the Moose dining room, so long as there is some member of the Moose who will stand accountable for his conduct...