Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery Ass'n

• Decision Date: 02 July 1973
• Docket Number: ALTO-RESTE
• Citation: 306 A.2d 881,453 Pa. 124
• Parties: PENNSYLVANIA HUMAN RELATIONS COMMISSION, Appellant, v.PARK CEMETERY ASSOCIATION.
• Court: Pennsylvania Supreme Court

Page 881

306 A.2d 881

453 Pa. 124

PENNSYLVANIA HUMAN RELATIONS COMMISSION, Appellant, v. ALTO-RESTE PARK CEMETERY ASSOCIATION.

Supreme Court of Pennsylvania.

July 2, 1973.

Rehearing Denied July 30, 1973.

Sanford Kahn, Gen. Counsel, Pa. Human Relations Comm., Israel Packel, Atty. Gen., Robert Englesberg, Asst. Gen. Counsel, Pa. Human Relations Comm., Harrisburg, for appellant.

Robert E. Woodside, Shearer, Mette, Hoerner & Woodside, R. J. Woodside, Harrisburg, James W. Nelson, Nelson, Campbell & Levine, Altoona, for appellee.

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

OPINION OF THE COURT

ROBERTS, Justice.

On January 27, 1970, appellant, the Pennsylvania Human Relations Commission, filed a complaint against appellee, the Alto-Reste Park Cemetery Association, alleging a violation of Section 5(i) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended 43 P.S. § 955(i) (Supp.1973). ¹ The basis of this action was appellee's refusal, on account of race, to bury the remains of the late Dr. George Walker. ² After attempts at conciliation proved futile, public hearings were held in Altoona on April 16 1970. ³ On April 27, 1970, a final order was issued by the Commission directing appellee to end, through specific measures, its racially discriminatory policies.

Appellee appealed this order to the Commonwealth Court; however, this appeal was discontinued by appellee in the belief that a settlement agreement had been reached between it and counsel for the Commission. The Commission, however, finding the proposed consent decree to be unacceptable, on May 20, 1972, issued an amended final order, substantially similar to its original order.

Appellee again appealed to the Commonwealth Court, which affirmed with modifications the Commission's amended final order. Alto-Reste Park Cemetery Association v. Pennsylvania Human Relations Commission, 7 Pa.Cmwlth. 203, 298 A.2d 619 (1972). The modifications imposed by the court consisted of deleting the following three paragraphs:

'4. It is hereby ordered that the Respondents write to Mrs. George A. Walker, widow of the late Dr. George A. Walker, a formal public letter of apology for the grief she has suffered due to the refusal of the Respondents to bury the remains of her late husband in December, 1969. Said letter must meet with the approval of the Pennsylvania Human Relations Commission.

'8. The Respondent shall also maintain such records, in writing, as will indicate whether any person is refused burial, and the reasons thereof. A copy of said reasons for refusal of burial should be sent both to the family of the person refused and to the Pennsylvania Human Relations Commission.

'10. Respondent shall advertise in the 'Altoona Mirror' that it does not discriminate on the basis of race in the sale of all of its cemetery plots. Such advertisement shall be submitted to the Executive Director of the Pennsylvania Human Relations Commission for his approval prior to its publication. Said advertisement shall be published no less that once each week for two consecutive weeks.'

The propriety of these deletions form the basis of the instant appeal.

Appellant contends that the Commonwealth Court erred in striking out the above noted paragraphs from the Commission's order. Specifically, appellant argues that the Commission's actions were proper in light of the broad statutory mandate conferred upon it by the Legislature to 'effectuate (through affirmative action) the purposes of this (Human Relations) act.' Pennsylvania Human Relations Act, supra at § 7, 43 P.S. § 957. Appellee asserts ⁴ that the Commission did not have subject matter jurisdiction over the present action, since cemeteries were not specifically included within the Human Relations Act's definition of 'places of public accommodation' until December 10, 1970, approximately 10 months subsequent to the filing of the instant complaint. ⁵ Act of December 10, 1970, P.L. 882, No. 278, § 1, 43 P.S. § 954(l) (Supp. 1973). For the reasons set out below, we agree, in part, with appellant's contentions. Accordingly, the order of the Commonwealth Court is affirmed with modifications.

I

Appellee's jurisdictional argument is not persuasive. In 1955, the Legislature provided that '(i)t shall be an unlawful discriminatory practice

'(i) For any person being the owner, lessee, proprietor, manager, superintendent, agent or employe of Any place of public accommodation, resort or amusement to

'(l) Refuse, withhold from, or deny to any person because of his race, color, religious creed, ancestry or national origin, either directly or indirectly, any of the accommodiations, advantages, facilities or privileges of such place of public accommodation, resort or amusement.'

Pennsylvania Human Relations Act, supra at § 5(i), 43 P.S. § 955(i).

The phrase 'place of public accommodation', as used in the 1955 Act was defined as '. . . Any place which is open to, accepts or solicits the patronage of the general public, including but not limited to . . . (approximately 50 enumerated places of accommodation) but shall not include any accommodations which are in their nature distinctly private.' Pennsylvania Human Relations Act, supra at § 4(l), 43 P.S. § 954(l) (Supp.1973).

In December of 1970, the Act was amended to make clear that 'nonsectarian cemeteries' were specifically included as 'places of public accommodation', falling within the ambit of the Act. Act of December 10, 1970, supra, 43 P.S. § 954(l) (Supp.1973). Appellee argues that since cemeteries were not categorically mentioned in § 954(l), supra, until eleven months subsequent to the commencement of the present action, cemeteries were not considered to be 'places of public accommodation' subject to the jurisdiction of the Commission. We cannot agree.

As Chief Justice Horace Stern stated for this Court more than eighteen years ago in Everett v. Harron, 380 Pa. 123, 126--127, 110 A.2d 383, 385 (1955), when confronted with a similar argument:

'Defendants contend that their establishment does not fall within the range of this statutory enactment because the section in question goes on to provide that 'A place of public accommodation, resort or amusement, within the meaning of this section shall be deemed to include' some enumerated forty-odd places but does not specifically name 'swimming pools.' However, this does not imply that only the places thus mentioned are within the purview of the statute for the list does not purport to be exclusive of all places other than those specifically named.' (Emphasis added.)

See also Sellers v. Philips Barber Shop, 46 N.J. 340, 344, 217 A.2d 121, 123 (1966).

Chief Justice Stern was undeniably correct; the Act clearly states that a 'place of public accommodation' Includes but is not limited to the enumerated specific accommodations. Pennsylvania Human Relations Act, supra at § 4(l), 43 P.S. § 954(l) (Supp.1973). '(T)he term 'include' is to be dealt with as a word of 'enlargement and not limitation' . . . (T)his (is) especially true where . . . it . . . (is) followed by the phrase 'but not limited to' the illustrations given.' Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 411, 301 A.2d 754, 761 (1973) (citations omitted). Thus, it is difficult to conceive how appellee, a public cemetery, can here contend that it is not a 'place of public accommodation', a '. . . place which is open to, accepts or solicits the patronage of the general public.' Pennsylvania Human Relations Act, supra at § 4(l), 43 P.S. § 954(l) (Supp.1973). The record here clearly supports the Commission's determination that appellee falls squarely within the broad scope of § 954(l), supra.

As the New Jersey Superior Court stated in interpreting a statutory enactment similar to § 954(l), supra:

'The primary rule of statutory construction is to ascertain the legislative intent, and all other rules of construction are secondary thereto. Where the language is clear, there is no room for construction; such need arises only where the language of the enactment is doubtful or obscure and such as will leave reasonable minds uncertain as to its meaning. We perceive no room for construction so far as Section (954(l)) is concerned. Its patent purpose is to extend to all persons equal rights in any places of public accommodation, resort or amusement. The word 'any' means '* * * one out of many * * * and is given the full force of 'every' or 'all'.'

State v. Rosecliff Realty Co., 1 N.J.Super. 94, 100, 62 A.2d 488, 490 (1948) (emphasis added). See also Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 166--167, 233 A.2d 290, 295--296 (1967).

Appellee's view of § 954(l), supra, is incorrect. The language of that section ('including but not limited to') is broad and all inclusive. 'If it was the intent (of the Legislature) to narrow the broad scope of the phrase 'any place of public accommodation . . .' as used in Section (955(i), supra), inept language was used for that purpose. The verb 'include' has not been defined so as to give it such a restrictive meaning.' Rosecliff Realty Co., supra 1 N.J.Super. at 101, 62 A.2d at 491. See Harron, supra. Indeed, this Court has held, as the Legislature has directed, that the provisions of the Pennsylvania Human Relations Act '. . . be construed liberally for the accomplishment of the purposes thereof.' Chester School District, supra, 427 Pa. at 165, 233 A.2d at 294; Pennsylvania Human Relations Act, supra at § 12, 43 P.S. § 962(a).

Appellee's final contention is that since the Legislature amended § 954(l), supra, in December of 1970, to include specific reference to 'nonsectarian cemeteries', prior to that time (and at the time of the instant action), cemeteries were not, in the view of the Legislature, 'place(s) of public accommodation' under the Act. We do not agree.

'The fact that the Legislature immediately amended the statute so...