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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carolyn and Morris Wilson, : Petitioners : : v. : : Pennsylvania Human Relations : Commission, : No. 1013 C.D. 2004 Respondent : Argued: February 3, 2005 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: March 23, 2005 Morris Wilson and Carolyn Wilson (the Wilsons) petition for review from an order of the Pennsylvania Human Relations Commission (PHRC) that awarded Keith and Yvonne Johnson (the Johnsons) $25,000 each in compensatory damages for embarrassment and humiliation, $1,104 for expenses, and a $1,500 civil penalty pursuant to the Pennsylvania Human Relations Act (PHRA)1. The Hearing Examiner made the following pertinent findings of fact: 1. On or about October 17, 2001, Complainants, Keith and Yvonne Johnson, filed a PHRC Complaint against Respondents, Morris and Carol Wilson .... . . . . 3. On March 28, 2002, PHRC Motions Commissioner . . . issued a Rule to Show Cause which, in effect, notified the Respondents [the Wilsons] that they had until April 1 Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963. 26, 2002 to file an answer to the Complainants' complaint . . . . 4. The Respondents [the Wilsons] did not file an answer . . . . . . . . 6. By order dated May 21, 2002, the PHRC found the Respondents [the Wilsons] liable for harassing the Complainants [the Johnsons] with the purpose of deterring the Complainants [the Johnsons] from occupying their residence . . . and that such actions were taken because Keith Johnson is an African American and Yvonne Johnson is Chinese. 7. On September 23, 2002, the PHRC approved this case for a public hearing on the limited issue of what, if any, damages are appropriate. . . . . 9. The PHRC's May 21, 2002, finding of liability was based on the allegations of the ... complaint which include: On or about April, 2001, and or until present, the Respondent(s) [the Wilsons] have threatened, made false animal control reports, interfered with the quiet, peaceful enjoyment of our home, attempted to interfere with our fair housing rights and made many racially derogatory references exhibiting a racial preference and or limitation at our residence ...on the basis of our race, African American, Chinese, and Chinese/African American. . . . Since moving to the subject property, the respondent [the Wilsons] neighbors have threatened us by stating that "I'll shoot you niggers" and intentionally encouraging their dog to come onto our property in order to attack our twenty year old son. The respondent neighbors [the Wilsons] have convinced other Caucasian neighbors to also infringe on our property by spreading rumors, parking in from [sic] of our house even though they have driveways, and blowing and sweeping leaves onto our property. 2 The respondent's [the Johnsons'] son Chad has called us niggers, cunt, black bitch, told us to go back to where we came from and made threats of physical violence against our family. The respondent, Carol [Johnson] indicated to me that she did not like oriental people and encourages and tolerates the behavior of the neighbors and her son in violating our rights . . . . Recommendation of Permanent Hearing Examiner, Findings of Fact Nos. 1, 3-4, 6- 7, and 9 at 2-3. A public hearing on the issue of appropriate damages was held on July 11, 2003, before the Permanent Hearing Examiner. Yvonne Johnson testified that the Wilsons' son, Chad, called Yvonne Johnson's mother a "Chinese Chink- Bitch," and stated "I'm going to get my gun if you Niggers don't leave Stanton Heights." Notes of Testimony, July 11, 2003 (N.T.) at 21-22, 97, 114; Supplemental Reproduced Record (S.R.R.) at 21b-22b, 97b, 144b. Yvonne Johnson also testified that Chad Wilson called her and her daughter, Jesse, "niggers and cunts." N.T. at 22-23; S.R.R. at 22b-23b. Morris Johnson called her husband, Kevin Johnson, "Nigger." N.T. at 97; S.R.R. at 97b. Yvonne Johnson further testified that the Wilsons and their neighbors heckled and laughed at the Johnsons, and brought their dogs on her property just to defecate. N.T. at 25, 32-33; S.R.R. at 25b, 32b-33b. She testified that she finally erected a fence around her yard to keep the dogs off her property. Yvonne Johnson testified that the Wilsons made false animal control reports which required her to appear in court. N.T. 83; S.R.R. at 83b. She also testified that the Wilsons and other neighbors parked their cars in front of the Johnsons' driveway and blocked it, 3 even though they have their own driveways. N.T. at 20, 89; S.R.R. at 20b, 89b. She testified that she and her husband felt trapped in her own home, and that she and her husband took turns sleeping at night because they feared something would happen. N.T. at 33-34; S.R.R. at 33b-34b. Keith Johnson testified that both Morris and Chad Wilson called him a "nigger" and "black mother fucker" and stated "we are going to make you move." N.T. at 121, 123; S.R.R. at 212b, 123b. Keith Johnson stated this occurred "just about every day." N.T. at 123; S.R.R. at 123b. He testified that he became depressed, and had to take medication for his depression. The Hearing Examiner concluded that the Wilsons' course of conduct represented "deeply imbedded individual racist tactics reflecting a desire to ultimately exclude and expel the Johnsons from the neighborhood." Hearing Recommendation of Permanent Hearing Examiner at 11. (Emphasis added). The Hearing Examiner recommended that the Johnsons each be awarded $5,000 in compensatory damages for the humiliation and embarrassment they suffered, and that the Johnsons be awarded $1,104 for expenses. The Hearing Examiner also recommended the assessment of a civil penalty against the Wilsons in the amount of $1,500 for their violation of the PHRA. The Hearing Examiner's findings of fact, conclusions of law and recommendations were subsequently adopted, almost in their entirety, by the PHRC. The PHRC issued an order requiring the Wilsons to cease and desist from engaging in discriminatory housing practices and requiring the Wilsons, jointly and severally, to pay the Johnsons $25,000.00 in compensatory damages (instead of the $5,000 recommended by the Hearing Examiner) for humiliation and 4 embarrassment. The order also required the Wilsons to pay the Commonwealth of Pennsylvania a civil penalty pursuant to Section 9(f)(2)(i) of the PHRA in the amount of $1,500.00: The Wilson's humiliating and menacing campaign of harassment and intimidation not only damaged the self- esteem of the Johnsons, but enduring the series of hurtful incidents caused the Johnsons to worry about nearly every aspect of their lives. The Johnsons went so far as to take turns sleeping for fear of their safety in their home. Indeed the Johnsons feared for their lives. In light of the extreme embarrassment and humiliation Keith and Yvonne Johnson endured as a result of the Wilsons' discriminatory campaign, I conclude that Keith and Yvonne Johnson are each entitled to compensation in the amount of $25,000.00 for the humiliation and embarrassment they suffered . . . . . . . . The nature and circumstances of the Wilsons' actions certainly merit a $1500.00 civil penalty . . . . Opinion and Recommendation of Commissioner, March 2, 2004, at 13-14. On March 23, 2004, the PHRC signed an Order which approved and adopted the Commissioner's Recommendation. The Wilsons raise one issue on appeal2: Whether the PHRC abused its discretion when it awarded damages to the Johnsons in excess of the limits set 2 This Court's review of the PHRC's decision is limited to determining whether it committed a constitutional violation or an error of law or whether its relevant findings of fact were supported by substantial evidence. City of Pittsburgh v. Commission on Human Relations of City of Pittsburgh, 444 A.2d 182 (Pa. Cmwlth. 1982). 5 forth in PHRA where the Wilsons had not committed any previous discriminatory practices? The Wilsons misconstrue the damage provision of the PHRA. The limit of $10,000 for a first offense applies only to a civil penalty found at Section 9(f)(2)(i)3 of the PHRA, 43 P.S. § 959(f)(2)(i). The $1,500 penalty imposed was well within that limit. The PHRC also awarded the Johnsons $50,000 in compensatory damages. The Wilsons did not preserve any issue concerning the excessiveness of the $50,000 compensatory damages award, other than to incorrectly assert in the Statement of Questions Presented that the compensatory damages award exceeded the limits set in the PHRA. Therefore, any challenge to the excessiveness or "outrageousness" of the $50,000 compensatory damage award, itself, was waived. Assuming arguendo, that the Wilsons had properly raised this issue, this Court would find it to be without merit. Pursuant to Section 9(f)(1) of the PHRA, the PHRC is authorized to award damages for embarrassment and humiliation. Unlike the penalty provision, there is no dollar limit on the amount: If, upon all the evidence at the hearing, the Commission shall find that a respondent has engaged in or is engaging 3 Section 9(f)(2)(i) of the PHRA provides that "[s]uch order may also assess a civil penalty against the respondent in a complaint of discrimination filed under sections 5(h) or 5.3 of this act . . . in an amount not exceeding . . . ($10,000) if the respondent has not been adjudged to have committed any prior discriminatory practice." 6 in any unlawful discriminatory practice as defined in this act ... the Commission may award actual damages, including damages caused by humiliation and embarrassment, as, in the judgment of the Commission, will effectuate the purposes of this act, and including a requirement for report of the manner of compliance. 43 P.S. §959(f)(1). The goal of the PHRA is to make persons whole for injuries suffered as a result of discrimination. Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745 (1998). The PHRC's authority to fashion remedies under the Act is entitled to great deference. Allison v. Pennsylvania Human Relations Commission, 716 A.2d 689 (Pa. Cmwlth. 1998); Consolidated Rail Corp. v. Pennsylvania Human Relations Commission, 582 A.2d 702 (Pa. Cmwlth. 1990). In New Corey Creek Apartments, Inc. v. Pennsylvania Human Relations Commission, 865 A.2d 277 (Pa. Cmwlth. 2004), this Court recently upheld a $25,000 compensatory damages award by the PHRC in favor of an African-American tenant for embarrassment and humiliation arising from landlord's race discrimination. There, Stephanie Gates (Gates), an African American woman, entered into a one-year lease with New Corey Creek Apartments. During an argument with Gates regarding a visit by her stepson, the apartment manager stated to her "this is the reason why Niggers shouldn't live in a complex like this" and "that's why monkeys deserve to be back in Africa." The apartment manager also called the police four separate times complaining that Gates, her family and her guests were either too loud or fighting. Gates was never charged, and two of the police reports reflected that the complaints were unfounded. In addition, on several occasions, the apartment manager told Gates' guests to go inside, and stated that Gates' visiting nieces and daughter, all of whom 7 were African American, were not allowed to play outside the building. When New Corey Creek refused to renew Gates' lease, she filed a complaint with the PHRC alleging race discrimination in housing under Sections 5(h)(1) and 5(h)(3) of the PHRA. Based on the above, the Hearing Examiner concluded that Gates presented direct evidence of discriminatory conduct. The Hearing Examiner's findings of fact, conclusions of law and recommendations were subsequently adopted by the PHRC which then issued an order requiring New Corey Creek to cease and desist from engaging in discriminatory housing practices and awarded Gates $25,000.00 for compensatory damages for humiliation and embarrassment. The PHRC also imposed a civil penalty pursuant to Section 9(f)(2)(i) of the PHRA. On appeal, New Corey Creek argued, inter alia, that Gates failed to present sufficient evidence to support the PHRC's $25,000.00 compensatory damage award and that the PHRC therefore committed an abuse of discretion. This Court held: Once a finding of discrimination is made, the decision as to the appropriate amount of an award is extremely fact-specific. As such, evidence regarding both the nature of the discriminatory conduct and the victim's reaction thereto is key. Here, the Commission credited Gates' testimony that she wanted to cry when confronted with [the apartment manager's] racial slurs, that [he] took everything from her as a black individual and as a mother, that she was under stress, that she could not understand why [he] was treating her poorly and that she felt like [he] treated her as less than a human. Moreover, the Commission credited corroborating testimony from Gates' friend and from Gates' mother indicating that 8 Gates contemporaneously communicated her humiliation regarding [the apartment manager's] actions to them. We will not disturb a remedial order of the Commission unless it constitutes a patent attempt to achieve ends that cannot fairly be said to effectuate the policies of the Act. Consolidated Rail Corp. Therefore, we find that the record supports the Commission's $25,000.00 award for humiliation and embarrassment based on the nature of the discriminatory conduct in addition to [Gates'] testimony and that of her friends and family. New Corey Creek Apartments, 865 A.2d at 282. In the present controversy, the PHRC found: The record demonstrates an unrelenting and heartless campaign designed to drive the Johnson's from their home. The Wilson's (sic) cruel campaign dominated the Johnson's (sic) lives for an extended period of time. In effect, the Johnson's were captives in their home, and when outside, they were exposed to many varied indignities at the hands of the Wilsons. Keith and Yvonne Johnson felt frustrated and embarrassed, both because it affected them and how it affected their entire family and their friends. Opinion and Recommendation of Commissioner, March 2, 2004, at 13-14. Here, as in New Corey Creek, the record supports the PHRC's $25,000.00 award for humiliation and embarrassment based on the egregious nature of the Wilson's discriminatory conduct and the compelling testimony of the Johnson family. 9 For the foregoing reasons, the order of the Pennsylvania Human Relations Commission is affirmed.4 ____________________________ BERNARD L. McGINLEY, Judge 4 In response to the dissent, the majority points out that our Supreme Court in Riedel v. Human Relations Commission of City of Reading, 559 Pa. 34, 739 A.2d 121 (1999), previously rejected this Court's attempt to raise sua sponte the issue of whether a local human relations commission lacked authority to enact and enforce an Ordinance prohibiting unlawful discriminatory housing practice through interference with quiet enjoyment of apartment. The Supreme Court concluded that the commission "clearly had jurisdiction over the general subject matter presented by this case, i.e., whether an unlawful housing practice has been committed." Riedel, 559 Pa. at 40, 739 A.2d at 124. The issue, the Supreme Court explained, involved the commission's authority or power to order a certain result, not its jurisdiction. Because the defendant did not challenge the commission's authority to act, the Supreme Court held that this issue was not properly preserved for appellate review. Therefore, this Court was found to have improperly reversed the trial court's order on the basis of a waived issue that was raised sua sponte. In this case, the dissent argues that the PHRC did not have jurisdiction to determine whether the conduct at issue violated the PHRA since the PHRA only proscribes discriminatory conduct "during the search, application, financing, sale or rental of housing." According to Riedel, this issue involves the PHRC's authority to act, not its jurisdiction. Clearly, the PHRC had jurisdiction over the general subject matter presented by this case, i.e., whether an unlawful housing practice was committed. See Riedel. The Wilsons did not preserve this issue on appeal and, because it is not a jurisdictional issue, it may not be addressed sua sponte. 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carolyn and Morris Wilson, : Petitioners : : v. : : Pennsylvania Human Relations : Commission, : No. 1013 C.D. 2004 Respondent : O R D E R AND NOW, this 23rd day of March, 2005, the order of the Pennsylvania Human Relations Commission in the above-captioned case is affirmed. ____________________________ BERNARD L. McGINLEY, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carolyn and Morris Wilson, : Petitioners : : v. : No. 1013 C.D. 2004 : Pennsylvania Human Relations : Argued: February 3, 2005 Commission, : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY SENIOR JUDGE KELLEY FILED: March 23, 2005 I respectfully dissent. I believe that the Pennsylvania Human Relations Commission (PHRC) did not have subject matter jurisdiction to adjudicate the Johnsons' complaint against the Wilsons.5 The PHRC is a creature of statute; therefore, its subject matter jurisdiction is defined solely by statute. See Pennsylvania Human Relations Commission v. St. Joe Minerals Corporation, 476 Pa. 302, 382 A.2d 731 (1978). In its decision, without citing to any authority, the PHRC states as follows: While the housing provisions of the [Pennsylvania Human Relations Act] emphasize protecting home 5 A court may, at any time, raise the issue of an agency's jurisdiction sua sponte. Blackwell v. State Ethics Commission, 523 Pa. 347, 358, 567 A.2d 630, 636 (1989) (issues concerning an agency's jurisdiction are never waived and can be raised sua sponte by the court.) seekers against discrimination in gaining access to housing, it also prohibits discrimination against families once they occupy their housing. All must be afforded the right to live where they wish, and discriminatory resistance to such civil rights must have a forum for redress. Reproduced Record (R.R.) at 10a. However, contrary to the PHRC's statement, the provisions of the PHRA do not specifically address the right to reside in housing free from discriminatory conduct of others. See Reidel v. The Human Relations Commission of the City of Reading, 756 A.2d 142 (Pa. Cmwlth. 2000), petition for allowance of appeal denied 566 Pa. 689, 784 A.2d 121 (2001). As pointed out by this Court in Reidel, "[r]ather, the . . . PHRA proscribe[s] discriminatory conduct during the search, application, financing, sale or rental of housing." Id. at 145. As previously stated by our Supreme Court: We are not unmindful of the legislative mandate to broadly construe the provisions of the Human Relations Act to effectuate its purpose, that purpose being to assure equal opportunity to every individual regardless of race, age, sex, or national origin. 43 P.S. §952(b) (Supp. 1977- 78). We may not, however, under the pretext of effectuating that intent, or of favoring the public interest over the private interest . . . , ignore the letter of the statute or well settled principles concerning the scope of an agency's power. St. Joe Minerals, 476 Pa. at 312, 382 A.2d at 736. While I agree with the PHRC that all must have a forum for redress for the discriminatory conduct of others which interferes with the enjoyment of one's housing accommodations, the PHRA simply does not provide that forum. "[N]either the [PHRC] nor the courts can provide such protections absent a proper JRK-13 legislative mandate."6 Pennsylvania Human Relations Commission v. Borough of Bendersville, 357 A.2d 236 (Pa. Cmwlth. 1976). The forum for such redress is therefore at common law. Thus, I would vacate the PHRC's order as it was without jurisdiction to entertain the Johnsons' complaint against the Wilsons.7 _________________________________ JAMES R. KELLEY, Senior Judge 6 I recognize that the regulations promulgated by the PHRC pursuant to the PHRA provide that it is an unlawful discriminatory activity to interfere with persons in their enjoyment of a housing accommodation and that the PHRC may assume jurisdiction over a such a claim. However, I believe that the regulation is invalid as it goes beyond the parameters of the PHRC's subject matter jurisdiction as that jurisdiction is defined by statute. It is well settled that the rules adopted by an administrative agency are binding upon a reviewing court as part of the statute as long as they are "'(a) within the granted power, (b) issued pursuant to the proper procedure, and (c) reasonable.'" Bailey v. Zoning Board of Adjustment of the City of Philadelphia, 569 Pa. 147, 161, 801 A.2d 492, 501 (2002) (quoting Pennsylvania Human Relations Commission v. Uniontown Area School District, 455 Pa. 52, 77, 313 A.2d 156, 169 (1973)). 7 In addition, if I were to believe that the PHRC had jurisdiction over the instant complaint, I would remand the matter to the PHRC based on the conclusion that the PHRC abused its discretion in fashioning the award. I believe that in determining the proper award to remedy discriminatory conduct, the PHRC should take into consideration the offender's ability to pay. My review of the record in this matter reveals that the PHRC failed to consider that factor. JRK-14
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