J. Howard Brandt, Inc. v. Commonwealth

Opinion by Judge Kramer, This is an appeal filed by J. Howard Brandt, Incorporated, Delores Brandt and J. Howard Brandt (hereinafter referred to collectively as Brandt) from a final order of the Pennsylvania Human Relations Commission (Commission) dated June 20, 1973. The Commission concluded that Brandt had committed an unlawful discriminatory practice in violation of Section 5(h)(1) of the Pennsylvania Human Relations Act (hereinafter Act), Act of October 27, 1955, P. L. 744, as amended, 43 P.S. §955 (h) (1). This case had its beginning when in February 1972 the Commission sent out employees called “testers” into an area of eastern Pennsylvania known as< the Main Line. Testers are used by the Commission to seek information concerning available rental properties and to determine if real estate brokers are violating the Act. Testers are sent out in teams of two employees, one being of the white race, and the other of the black race. The white tester first enters a real estate broker’s office, and under a pre-arranged format, presents himself as a prospective tenant to the broker — 127 — or a person in Ms office. After the broker or the person in charge of the office responds to the inquiry on whether or not an apartment or house is available for rental, the white tester leaves the premises and immediately informs his team member of the statements made in the broker’s office. Within a few minutes, the black tester enters the same office and makes a similar inquiry on the availability of rental properties, and after receiving a reply, likewise retires to compare notes with the first tester. From the many cases which this Court has reviewed involving testers, it is apparent that the procedure thereafter is to make a determination on whether to file a complaint against the broker and others for violation of the Act. Sections 7 and 9 of the Act, 43 P.S. §§957 and 959, give the Commission the power to investigate and initiate complaints charging unlawful discriminatory practices, and we specifically hold that the use of testers is a permissible method under the statute to assist the Commission in making a determination on whether a complaint should be filed. The issue of entrapment raised by Brandt has no merit. Having initially upheld the use of testers, we now turn to the facts of this case. On February 3, 1972, Gerard Eugel (Eugel), who is a white male employee of the Commission, entered the Brandt office seeking information about available rental property. He spoke to a young, tall man with brown hair, whose name he did not ascertain. Eugel asked for “one or two-bedroom apartments or houses” and did not request any specific area. He was offered “at Penn Wynne, a three-bedroom house” for a rental of $300 per month and was told that nothing else was available. According to Eugel, the entire transaction took “approximately five minutes or so, ten minutes, I’m not sure of the exact time.” It was stipulated for the record that Eugel was not a bona fide prospective — 128 — tenant and that he was in the Brandt office for the purpose of testing. During his short visit to Brandt’s office, Rugel saw no one other than the young man to whom he spoke. After Rugel left Brandt’s office, he immediately informed Margaret Mitchell (Mitchell), who was seated in an automobile parked nearby, of what had transpired. Mitchell is a female black employee of the Commission. Approximately ten minutes after Rugel left Brandt’s office, Mitchell entered the same office (approximately 12 feet by 20 feet in size) and spoke to Delores Brandt. Mitchell did not see any other person in the office. Mitchell represented that her husband was “doing a residency at Lankenau Hospital” and that she would be “interested in a one, two, or three-bedroom apartment or a house in the general vicinity of Lankenau Hospital,” for which she was willing to pay a rental “between $125 and $375.” Mitchell testified that Mrs. Brandt said that she was sorry there was nothing available, and that she would take Mitchell’s name and phone number and get in touch with her as soon as possible, when something was available. The whole operation of both testers was completed in about 25 minutes. Thereafter, on April 28, 1972, a complaint was signed by the Executive Director of the Commission charging Brandt with a violation of the Act which took place on or about February 3,1972 “concerning a three-bedroom property in Pennway, Pennsylvania.” (Emphasis added.) It should be noted here that there is nothing in the record of the case submitted to this Court which could be deemed to be proof of service of the complaint or a copy thereof upon Brandt, and none was offered at the hearing. During the cross-examination of Rugel, it was developed that at some time during June of 1972 (the exact date is not disclosed anywhere) Rugel returned to the Brandt office for the — 129 — purpose of serving the complaint or a consent order. The record indicates that although the alleged incident occurred on February 3, 1972, the first time Brandt was given any knowledge of an investigation or charge was at the June 1972 confrontation. The matter came on for hearing on December 28, 1972, before three commissioners of the Commission. At this hearing, Eugel was unable to identify the young man with whom he spoke, either by name or by other identification, until after a former salesman of Brandt’s was called to testify on behalf of the respondents. After the salesman’s testimony, at the request and call of the Chairman of the Commission, Eugel was permitted to identify the salesman as the person with whom he spoke on February 3, 1972. The record indicates that this salesman was present in the hearing room during the entire proceedings. The respondents and all of their employees testified that they had no recollection of either Eugel or Mitchell coming to the office on February 3, 1972, and that none of them had ever seen either of the two Commission testers prior to June of 1972, when Eugel appeared at the office. There is evidence in the record which would support the Commission’s eighth finding of fact which reads: “8. J. Howard Brandt, Inc. lists all available rentals on a paper attached to a clipboard which is on top of a filing cabinet in their office. All employees of J. Howard Brandt, Inc. have knowledge of and access to this clipboard so that if any rentals were available, each employee would be aware of them, or know where to find the information.” However, there is nothing in this record which would indicate that the young man with whom Eugel spoke or Mrs. Brandt ever referred to a clipboard. There is also no evidence that in fact rental housing was available in the Brandt office, that either of the testers asked to see the clip — 130 — board or any other list of available rentals, that Rugel ever asked to see the rental property he stated was proferred as available, or that the actions of any person in the Brandt office disclosed any outward appearance of discrimination toward Mitchell. The Commission’s entire case rested upon the scant testimony noted above. The Commission offered no proof whatsoever concerning any “Three bedroom property in Pennway, Pennsylvania.” (Emphasis added.) Brandt was charged with, and held to be in violation of Section 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 origin of any prospective owner, occupant or user of such commercial housing, or to refuse to lease commercial housing to any person due to use of a guide dog because of the blindness of the user.” Our review is limited to a determination of whether the Commission’s adjudication is in accordance with law and whether any finding of fact made in support of its adjudication is not sustained by substantial evidence. Wilkinsburg School District v. Human Relations Commission, 6 Pa. Commonwealth Ct. 378, 295 A. 2d 609 (1972). “Substantial evidence” means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. A. P. Weaver & Sons v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 499, 284 A. 2d 515 (1971). In recent cases we have recognized that the Act (Section 5(h)(1)) was intended to prohibit the withholding of information on available housing because of race, color, etc. See Tomlinson Agency v. Pennsylvania Human Relations Commission, 11 Pa. Commonwealth — 131 — Ct. 227, 312 A. 2d 118 (1973). It is clear to us that the primary legislative intent was to proscribe unlawful discriminatory practices as defined in the Act. The term “prospective owner, occupant or user” in Section 5(h) (1) of the Act must be interpreted to mean prospective in the eyes of the beholder, i.e., the real estate broker or salesman. It is conceivable upon a properly proven set of circumstances that there could be a violation of the Act even if factually there was no commercial housing available, and the prospect was a tester. A real estate broker or salesman violates the Act if, because of a person’s race, etc., he intends to deny or withhold information from any person who presents himself to the broker as a “prospective owner, occupant or user.” Brandt also presented an issue to this Court concerning the testimony of Raymond W. Cartwright, the Commissioner’s housing director, who testified to the general testing procedures and state-wide results thereof. We agree that most of Mr. Cartwright’s testimony was irrelevant, but we likewise recognize that the Commission did not utilize any of his testimony in making its findings or conclusions. Therefore, we would not reverse the Commission on that issue alone. In passing, however, we note that Mr. Cartwright quite frankly stated for the record that the standard consent order which the Commission uses to conciliate this kind of case is designed to correct “errors that have the appearance of discrimination” as well as “blatant discriminatory acts.” This admission acknowledges that some of these cases involve errors which, unfortunately, result in discrimination without any intent to discriminate. The main issue presented by Brandt is whether there is substantial evidence to support the Commission’s adjudication. We have read and reread the short record in this case, and hold that there is not substantial evidence in the record to support the Com — 132 — mission’s conclusion that “the Respondent committed an unlawful discirminatory [sic] practice in violation of Section 5(h) (1) of the Act by providing information concerning a house for rent at Penn Wynne to Mr. Rugel, a White male, and not providing the same information to Ms. Mitchell, a Black female.” (Emphasis added.) First of all the complaint alleges the violation to concern a “Three bedroom property at Pennway, Pennsylvania.” No attempt was made at the hearing or at any time to amend the complaint to “Penn Wynne.” During the past year, this Court has been forced to reverse the Commission in several cases, because the evidence presented was inconclusive. The problem in those cases, as well as in this case, was that the Commission’s testers did not gather sufficient pertinent evidence to support the allegations and charges. These cases cannot be decided by what may be in the minds of the testers, the complainant, or even the Commission; but rather must be decided upon substantial evidence sufficient to support the complaint, and the findings and conclusions of the adjudication. These cases cannot be decided upon suspicion of discrimination. If the Commission’s general conclusions are correct in these cases, that is, that unlawful discrimination existed, then it is distressing that the Commission’s orders are reversed because of a lack of proper procedure or of proper preparation and presentation of evidence. It is even more distressing when improper procedures and inadequate presentations continue in case after case despite the pronouncements of this Court. See Tomlinson, supra; St. Andrews Development Co., Inc. v. Pennsylvania Human Relations Commission, 10 Pa. Commonwealth Ct. 123, 308 A. 2d 623 (1973); Straw v. Pennsylvania Human Relations Commission, 10 Pa. Commonwealth Ct. 99, 308 A. 2d 619 (1973). This Court has no supervisory powers over — 133 — the administration of regulatory agencies. Our task is to review the record, including the adjudication, and to interpret the law. When the record made fails to support the adjudication, then our duty is to reverse. The Commission’s approach to this type of case is somewhat simplistic. The Commission argues that it can meet its burden of proof by merely showing that two testers received different information, and that after such a showing the burden shifts to the respondents who must prove that the differing information did not amount to discrimination. If the respondents fail to carry their alleged burden of proof, then the Commission contends that it may conclude that they are in violation of the Act. We must conclude that the Commission’s approach is improper. The burden is upon the Commission to prove through substantial evidence a violation of the Act. Even if a respondent takes the risky tactic of presenting no evidence whatsoever, the Commission cannot utilize that failure to present any evidence as the basis for determining a violation. In such a case, the Commission’s case in chief must prove the violation, or otherwise it has not met its burden, and the complaint must be dismissed. Although our review of this record would permit us to be suspicious that there may have been a discriminatory act performed by the people in the Brandt office on February 3, 1972, we must conclude that the Commission did not meet its burden of proof. Under the facts of this case discrimination is only one of several possible explanations for the different information received by the testers from two different individuals in the Brandt office. The Commission cannot meet its burden by showing that a violation of the Act may have taken place. In closing, we feel constrained to mention that we do not condone the Commission’s tactic of confronting a respondent many months after the alleged violation. — 134 — Considering the four-month delay in this case between the alleged violation and notice to Brandt, it is not surprising that all of Brandt’s employees denied any knowledge or memory of the testers’ visit on February 3, 1972, and considering the almost ten-month lag between the alleged violation and the hearing, it is not surprising that Rugel was initially unable to identify the salesman to whom he spoke. Obviously, prompt notice and prompt hearings for persons charged with violating the Act would be of benefit to everyone concerned, including this Court. Since we have held that the Commission has failed to meet its burden, we enter the following Order And Now, this 20th day of August, 1974, the order of the Pennsylvania Human Relations Commission, dated June 20, 1973, pertaining to J. Howard Brandt, Incorporated, Delores Brandt, President, and J. Howard Brandt, Secretary-Treasurer, is hereby reversed.