Tomlinson Agency v. Com., Human Relations Commission

• Decision Date: 27 November 1973
• Parties: TOMLINSON AGENCY, Appellant, v. COMMONWEALTH of Pennsylvania, Pennsylvania HUMAN RELATIONS COMMISSION, Appellee.
• Court: Pennsylvania Commonwealth Court

312 A.2d 118

11 Pa.Cmwlth. 227

TOMLINSON AGENCY, Appellant, v. COMMONWEALTH of Pennsylvania, Pennsylvania HUMAN RELATIONS

COMMISSION, Appellee.

Commonwealth Court of Pennsylvania.

November 27, 1973

Argued Sept. 6, 1973.

Application for Allocatur Denied Feb. 8, 1974.

James Victor Voss, Pittsburgh, for appellant.

Mark A. Senick, Pa. Human Relations Comm., Pittsburgh, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

CRUMLISH Jr., Judge.

This is an appeal from an adjudication of the Pennsylvania Human Relations Commission which concluded that the Tomlinson Agency (Appellant) had committed an unlawful discriminatory practice in violation of Section 5(h)(1) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq. (Act).

On March 7 1972, Ralph DeCostro (DeCostro) and Leslie Strader (Strader), both employees of the Pennsylvania Human Relations Commission (Commission), ^[1] formation on available rental property. DeCostro appeared at Appellant's office and made the initial inquiry as to available units at the Riverside Village Apartments entered the office of Appellant seeking in-(Riverside). ^[2] Joseph Tomlinson, who operates Appellant agency with his wife, his son, and an assistant, informed DeCostro that a two bedroom apartment at Riverside could be had at the monthly rental of $215.00. When he asked if anything else was open, DeCostro was told that there was a one level frame house on California Avenue in Oakmont, Pennsylvania, which was listed at $85.00 per month. Tomlinson then suggested that DeCostro drive by the house. Subsequently Strader came on the scene, asked about Riverside and was given substantially similar information. Strader also asked about other available housing, but no reference was made to the California Avenue property.

This was the evidence presented to the Commission three member panel after a complaint was filed by it averring that Riverside ^[3] and Appellant violated Section 5(h)(1) of the Act and an Answer thereto denying the allegation was filed by Appellant. On March 6, 1973, the Commission entered its Final Order finding that Appellant had committed a discriminatory act in violation of Section 5(h)(1) of the Act in that it had failed to inform Strader of the availability of the California Avenue property and it therein ordered Appellant to take certain remedial steps designed to eliminate this discrimination.

Appellant now comes to us.

We are reminded that review by the Commonwealth Court in the instant case is solely to determine whether the adjudication is in accordance with law or whether any finding of fact made by the agency in support of its adjudication is not sustained by substantial evidence. Wilkinsburg School District v. Human Relations Commission, 6 Pa.Cmwlth. 378, 295 A.2d 609 (1972). 'Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' A. P. Weaver and Sons v. Sanitary Water Board, 3 Pa.Cmwlth. 499, 284 A.2d 515 (1971) citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).

Appellant was charged with and held to be in violation of § 5(h)(1) of the Act which provides:

'It shall be an unlawful discriminatory practice . . .

(h) for any person to:

(1) Refuse to sell, lease, finance Or otherwise to deny or withhold commercial housing from any person because of the race, color, religious creed, ancestry, sex or national original of any prospective owner, occupant or user of commercial housing . . ..' (Emphasis supplied.) 43 P.S. § 955.

We agree that this legislation was intended to prohibit the withholding of information on housing availability among other reasons because of race, and or color.

So, the real issue here is whether the Commission's findings of fact, especially findings eight, nine, and ten ^[4] are supported by substantial evidence.

We are aware of the Commission's proper objectives in eagerly pursuing those who practice discrimination through the subtle means of withholding information on available housing from prospective minority tenants. But it is our duty in reviewing the evidence to carefully examine it lest the Commission's zeal results in legally unfounded inferences and conclusions, to the pain and sacrifice of those so accused.

The Commission had before it evidence that Appellant had told the black and the white testers of the future vacancy at Riverside but that it had failed to inform the black testor of the availability of the California Avenue property. From this omission and the finding that there was no perceptible difference in their manner of inquiry, except for their race the Commission determined that the Appellant had committed an affirmative act of discrimination. This omission without additional supportive evidence is insufficient to...