Coleman v. Carr Reality Order and Plaintiffs' Opposition to Motion by Defendant for Summary Judgment

    r r

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COLEMAN, et al.
Plaintiffs,

vs.

CARR REALTY, et al.,
Defendants.

CIVIL ACTION

NO. 77-377

O R D E R

And now this day of , 1978, upon
consideration of Defendant Delaware County Board of Realtors' 
motion for summary judgment, plaintiffs' pre-trial statement, 
plaintiffs' memorandum in opposition to motion of Defendant 
Delaware County Board of Realtors' motion for summary judgment, 
and the affidavits and exhibits filed of record in this action, 
it is hereby ordered that the motion for summary judgment of 
Defendant Delaware County Board of Realtors is denied.

SO ORDERED:

J.

DATE:



r

t

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELVIN COLEMAN, et al.,
Plaintiffs,

vs.

CARR REALTY, et al.,
Defendants.

CIVIL ACTION

NO. 77-377

CERTIFICATE OF SERVICE
The undersigned certifies that on this date he served 

attached Plintiffs' Memorandum in Opposition to Motion of 
Defendant Delaware County Board of Realtors for Summary 
Judgment by mailing true and correct copies thereof to the 
defendants at the following addresses:

Barbara W. Mather, Esq. 
Pepper, Hamilton & Scheetz 
2001 Fidelity Bldg.
123 South Broad Street 
Philadelphia, Pa. 19109
Stephen S. Smith, Esq. 
Baile, Thompson, Shea, 
Craine & Smith 
306 S. 69th Street 
Upper Darby, Pa. 19082
Lionel A. Waxman, Esq.
23 E. Front Street 
Media, Pennsylvania 19063
Max W. Gibbs, Esq.
Sand, Gibbs, Marcu & Smilk 
6910 Ludlow Street 
Upper Darby, Pa. 19082

DATED: August 4, 1978

Robert W. Costigan, Esq. 
Costigan, Garber & Rubin 
600 Penn Square Bldg. 
Philadelphia, Pa. 19107
James S. Kilpatrick, Esq. 
Haws & Burke 
15 Rittenhouse Place 
Ardmore, Pennsylvania 19003
Gilbert Newman, Esq.
Shralow & Newman 
Third Floor 
510 walnut Street 
Philadelphia, Pa. 19106
William D. North, Esq. 
Kirkland & Ellis 
200 East Randloph Street 
Chicago, 111. 60601

BETH J. LIEF 
Attorney for Plaintiffs



IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELVIN COLEMAN, et. al., :
Plaintiffs, :

CIVIL ACTION
V. No. 77-377

CARR REALTY, et. al.,

Defendants. :

PLAINTIFFS' OPPOSITION TO MOTION 
BY DEFENDANT DELAWARE COUNTY BOARD 
OF REALTORS FOR SUMMARY JUDGMENT

I. INTRODUCTION

In February, 1977 a black homeowner, a black 
homeseeker, and an interracial fair housing council, 
filed suit against six^named realtors and defendant 
Delaware County Board of Realtors, challenging defen­
dants ' policy and practice of racial discrimination 
in housing against blacks in Eastern Delaware County.

In this action, plaintiffs seek damages, and 
declaratory and injunctive relief to uproot defendants' 
custom, policy and practice of racial discrimination 
in the sale and rental of housing; and to remedy not 
only the principal effect of such discrimination, which 
is to exclude blacks from white neighborhoods, but also 
the accompanying effects, which are, where possible, to

1/ One of the defendants Carr Realtors entered into a
Consent Decree with plaintiffs an June 12, 1978. During 
the course of discovery, Plaintiffs learned that two of 
the named defendants, Bruce-Hudson, Inc. and Dubson-Hudson 
Realtors, are in fact part of the same corporation. See 
Plaintiffs' Pre-Trial Statement, II A 1-4, 10,pp . 6-7.



r

limit the opportunity of blacks to purchase homes to
a few black pockets and, generally, to discourage and

2/refuse to deal with black homeseekers. The action is
brought to enforce rights guaranteed by the Thirteenth
Amendment; 42 U.S.C. §§1981, 1982, and 1985, and the

3/Fair Housing Act of 1968, 42 U.S.C. §§3601 et. seq.
Named plaintiffs are Elvin Coleman, a black

4/ 5/homeowner, Janice Jackson, a black homeseeker, and
an interracial fair housing organization, the Lansdowne-
Upper Darby Area Fair Housing Council, Inc.

The Lansdowne-Upper Darby Area Fair Housing
Council is a non-profit membership corporation organized
under the Pennsylvania Non-Profit Corporation Law. Its
membership includes black and white residents of Eastern
Delaware County, including the individuals who conducted
the audits of the named defendant realtors, Janice
Jackson, Elvin Coleman and Margaret Collins. The Council
exists, inter alia, to help black and white persons
purchase homes in Eastern Delaware County with full
freedom of choice and without regard to their race or the

6 /racial composition of nieghborhoods.— Members of the 
Lansdowne-Upper Darby Area Fair Housing Council, Inc. 
have since the inception of the Council's predecessor

2/ Complaint,5 5I, 61 at pp. 1, 18-20.
3/ Id.. 52 at p . 2.
4/ Plaintiffs Pre-Trial Statement, II at p. 1.
5/ Id., 12 at p. 1.
6/ Id., 13 at pp. 1-2.

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groups in 1956, sought to and aided black persons and 
interracial couples in the exercise of and enjoyment of 
their right to integrated neighborhoods. As a major part 
of such efforts, the Council over the years has conducted 
and continues to conduct audits or tests of realtors who 
are members of defendant Delaware County Board of Realtors 
to determine the existence of racially discriminatory prac­
tices. Where such audits or tests evidence racial discrimi­
nation, the Council seeks to eradicate such discrimination 
through the filing of complaints, primarily in administra­
tive forums. Members of the Council purchased and continue 
to live in racially segregated communities as a result of 
defendants' policies and practices. As a result of these 
policies and practices, members of the Council have been 
denied their right to have housing available to them without 
regard to race; have been deprived of the social benefits 
of living in an integrated community; have been frustrated 
in their goals of open and integrated housing; and have been 
frustrated in their right to enforce and to aid in the

Venforcement of the right to equal opportunity in housing.

Named plaintiffs sue on their own behalf and on 
behalf of a proposed class consisting of all (i) black 
homeseekers who are currently seeking or who have sought 
homes in Eastern Delaware County; (ii) black homeseekers

7/ Id., 13, 17, 18, VI C 1, VI C 11, at pp. 2-3, 49,
51, see affidavit of Carie Eisard, attached as Exhibit A 
to this Memorandum.

- 3 -



who desire or have desired to purchase homes in Eastern 
Delaware County but have been deterred from seeking such 
homes; and (iii) current and prospective residents of 
Eastern Delaware County who are injured as a result of 
the "policies and practices complained of herin." (Com­
plaint, 53a at p .2 )

There is substantial segregated housing in Eastern
Delaware County, an area of approximately twenty-five
square miles which lies immediately adjacent to metro-

8 /politan Philadelphia- Eastern Delaware County has 
transportation facilities and roads which provide easy 
access to downtown Philadelphia, has a wide variety of 
housing for sale in different price ranges, and a sub­
stantial number in the range suitable for families of

9/ . .moderate means. Despite the desirability of Eastern 
Delaware County arising from the number of moderately 
price homes, its schools and shopping and proximity to 
Philadelphia, Eastern Delaware County is— with the 
exception of a few, known and defined black areas— an 
exclusive enclave for white persons.

The named defendant realtors foster and maintain 
this pattern of segregation and exclusion by engaging 
"in a custom, pattern and policy of willfully and 
wantonly excluding blacks from white communities in 
Eastern Delaware County . . . and the companion customs

8/ Id., 14 at p .2; Complaint, 514 at p. 6.
9/ Pre-Trial Statement, 15 at p. 2; Complaint 515 at p. 6.

-4-



patterns and policies of limiting black homeseekers
to virtually all-black areas, discouraging and refusing
to deal with blacks, and directing white homeseekers

10/away from black neighborhoods.
The methods by which defendant realtors pursue 

their discriminatory patterns and policies include, but 
are not limited to:

"a; refusing to show and/or discouraging 
black or interracial homeseekers from 
purchasing houses in white neighbor­
hoods ;

"b. refusing to show and/or to offer to 
show as many houses to black or 
interracial homeseekers as to white 
prospective homeseekers regardless 
of the actual availability of houses 
for sale in the price range and area 
requested;

"c. aggressively pursuing white homeseekers 
to maximize the possibility of their 
purchasing houses in the white communi­
ties specified above while making little 
or no effort to similarly encourage 
black homeseekers;

"d. directing blacks to houses in predominantly 
black neighborhoods;

"e. refusing to show and/or discouraging whites
from purchasing houses in predominantly black 
neighborhoods."ii/

Evidence as to the discriminatory methods of the 
defendant realtors is overwhelming.

The individual experiences of discrimination suffered 
by named plaintiffs, Elvin Coleman and Janice Jackson are 
detailed in the complaint at 55 24-55 at pp. 9-16 and in 
Plaintiffs' Pre-Trial Statement at IIIA at pp. 28-32 and 
IIB, IIIB, IVB and VB at pp. 7-8, 17-19, 33 and 39-40.

10/ Complaint, f20 at p. 7. 
11/ Id., 523 at pp.8-9.

- 5 -



In addition, members of the Lansdowne-Upper Darby Area
Fair Housing Council, Inc., as part of their effort to
aid in the enforcement and enjoyment of fair housing laws,
tested the named realtor defendants in April and May, 1976.
Their role involved posing as prospective homeowners in
visits to defendant realtors. Couples of different races
expressed similar preference as to size, price range and
general location of houses in which they would be interested.
The Council members who participated in the tests were
instructed to and did immediately after their experiences
with defendant realtors record the facts as to those

12/experiences. in virtually every instance, defendant real­
tors and their sales agents discriminated against black 
persons and interracial couples, by one or more of the

13/five methods listed above, and/or by direct racial slurs.
Both the complaint and Plaintiffs' Pre-Trial 

Statement also detail the discriminatory role of defendant 
Delaware County Board of Realtors.

While plaintiffs will not repeat all facts as to 
the Board which are set forth in their Pre-Trial Statement, 
a brief summary of the facts supporting their claim is 
appropriate.

12/ Plaintiffs' Pre-Trial Statement, 17-8 at pp. 2-3.
13/ See Id., as to defendants Bruce Hudson, Inc. and
Dubson-Hudson Realtors, IIC, pp8-13; as to defendant Spano 
Real Estate Company, IIIC, pp. 19-24; as to defendant Wm. C.
Taylor, Inc., successor to Wm. C. Taylor, Real Estate-Insurance, 
IVC. pp. 33-36; and as to defendant Arthur J. Wagner, VD.pp. 41-44.

- 6 -



Defendant Delaware County Board of Realtors 
(hereinafter referred to as "Board") is a Pennsylvania 
coproration, whose members include over two hundred 
individuals and organizations engaged in the real estate 
business, including the named defendant realtors, princi­
pals of those realtors, and real estate salespersons. The 
Board's principal place of business is 10 East Spraul Road, 
Springfield, Pennsylvania.

Defendant Board is an important arm of the real 
estate industry in Eastern Delaware County.Membership
in its rank is considered a part of being in the business 
_ , 13/of real estate. Each of the named defendant realtors

are not only members of defendant Board, but each of the
principals of the named defendant realtors are and have

14/
been on various committees of the Board. D. Louis Grady, 
principal of defendant Spano Real Estate Company had held 
every office at the Board, including that of President in

15/
1977, although Spano Real Estate has had a continuous

16/
history of discriminatory real estate practices.

From the 1950's on, defendant Board has actively
17/ 18/

opposed and attempted to frustrate passage and enforcement 
of fair housing laws. The By-Laws of the Board provides for 
suspension, expelsion on other disciplinary action for infrac­
tion of standards of practice or unethical conduct, including

13/ E.g. deposition of Majorie Megraw, p. 6 ; Carl Ruchr, 
p. 13; Betty McGinnis, pp.5-6.
14/ Plaintiffs' Pre-Trial Statement, VI A at pp. 47-48.
15/ Id.. at VI A. 2 at p. 47.
16/ Id. at III A. 7-8, B-C, pp. 16-23.
17/ Id. at VI B. at p. 49.

18/ Id. at VI C-D at pp. 49-54.
- 7 -



racially discriminatory actions, while disciplinary
action is taken with great regularly against Board members

20/in areas of commission disputes and cooperative sales';—
the Board purposely avoids even the pretense of applying
its by-laws to realtors and salespersons who discriminate

21/against blacks even where it had personal knowledge that
discrimination has occurred or that a member has been

22/found guilty of violating the fair housing laws. Consistent
with its determination to thwart the goals of the fair
housing laws, the Board has continuously refused to
participate in efforts to achieve and foster open, integrated 

23

1 9 /

housingrr to overcome its discriminatory image by encouraging
24/black homeseekers to purchase in Eastern Delaware Countyr

and to allow fair housing realtors access to its Multiple 
. 25/Listing Service.

Despite the efforts of the Board, cited above, to 
insulate its members from discipline for discriminatory
conduct and to frustrate the goals of the fair housing 
laws, members of the Boards including some of the named 
defendant realtors, had been cited in administrative and 
judicial forums for engaging in racial discrimination

19/ By-Laws, Delaware County Board of Realtors, Article
XVI, Section 4; Article VI, Section 6 ; National Association 
of Realtors Code of Ethics, Article 10, See Id. at VI D 1-3 
at p. 53.
20/ See Minutes Professional Standards Committee, Delaware
County Board of Realtors.
21/ Plaintiffs’ Pre-Trial Statement, VI D 4-7, at pp. 53-54.
22/ Id.
23/ Id., VI E at pp. 55-56.
24/ Id.
25/ Id., VI F-G, at pp. 57-61.

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violative of the state and federal fair housing laws.
2 6 /

The basis of many of these complaints was evidence 
gathered from testing member realtors. The Board there­
fore set out through a series of actions to have all

27/
such testing stop and/or become ineffective. The means
of doing this included not only direct pressure on the
Pennsylvania Human Relations Commission, but also on

28/
state and federal legislators and the United States

29/
Department of Justice. The Board thus acted, and
conspired with and on behalf of its members to end the
most effective way of uncovering its discriminatory 

30/
•practices. Where testing had already led to a finding 
of probable cause against one of its members and a 
amend defendant, Bruce Hudson, the Board and its members 
agreed to pressure for and succeeded in attaining a 
cessation of all further investigation by the Pennsyl­
vania Human Relations Commission and, indeed, in having

31/
two cases actually dropped.

26/ Id. VI C 1 at p. 49.
27/ Id. VI C at pp. 49-52.
28/ Id. VI C 10 at p. 50.
29/ Id. VI C 19 at p. 52.
30/ Id. VI C at pp. 49-52.
31/ Id. VI C 11-16.

-9-



II. STATUS OF THIS ACTION

Presently pending before this Court is Plaintiffs'
Motion for Determination of Class and various motions of

32/
defendants to dismiss and/or for summary judgment. At the 
time of oral argument on these motions, this Court ruled that 
the determination on all motions be stayed pending completion 
of discovery by all parties in conformance with the order
of this Court. Pursuant to this Court's order, plaintiffs

33/-
filed a detailed Pre-Trial Statement by July 3, 1978.
Defendants were not required to submit a counter Pre-Trial
Statement and were given the opportunity to file Supplemental
Memorandum in support of their motions by July 21, 1978.

In light of the detailed facts set forth in Sections
I, II, III, III A, IV, V of Plaintiffs Pre-Trial Statement
and defendant realtors' failure to supplement their various
motions or in any way to contest the facts set forth therein,
plaintiffs contend that all motions to dismiss and/or for
summary judgment by said realtor defendants must be denied.
In addition, plaintiffs rely on their previously submitted

34/
memoranda in opposition to defendant realtors' motions.

32/ Motions to Dismiss by defendants Bruce Hudson, Dubson- 
Hudson, Taylor and Wagner; Motions for Summary Judgment by 
defendants Bruce Hudson, Dubson-Hudson, Spano. Taylor and 
Wagner. In addition, plaintiffs have pending a Motion to 
Compel and for sanctions against Wm. C. Taylor.

33/ Plaintiffs do not contend that they had less than
ample time to complete discovery. Plaintiffs therefore 
decline to respond to the gratuitous and irrelevant "history" 
of discovery as set forth in the July 21, 1978 Supplemental 
Memorandum in Support of Delaware County Coard of Realtors' 
Motion for Summary Judgment.
34/ See July 21, 1978 Supplemental Memorandum in Support of 
Delaware County Board of Realtors' Motion for Summary Judgment 
[hereinafter referred to as Board Memorandum], page 6 .

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,i;, I: I l / I  '1 !



Plaintiffs1 present memorandum therefore is addressed only 
to claims against defendant Board and the conspiracy claim 
against all defendants, including defendant Board.

III. DEFENDANT DELAWARE BOARD OF REALTORS 
CONTINUES TO IGNORE AND FAILS TO MEET 
THE LEGAL STANDARDS GOVERNING DISPOSITION 
OF MOTIONS FOR SUMMARY JUDGMENT IN CIVIL 
____________RIGHTS CASES________________

A. The Legal Standards
As the Supreme Court stated in Adickes v. Kress & Co.,

398 U.S. 144, 157, 161 (1970), "[a]s the moving party,
[defendant Board of Realtors] had the burden of showing 
the absence of a genuine issue, as to any material fact"; 
and "[t]he party moving for Summary Judgment has the burden 
to show that he is entitled to judgment under established 
principle and if he does not discharge that burden, then 
he is not entitled to judgment."

That burden is a particularly great one in a civil 
rights case such as the instant action. Where controversies 
over constitutional rights are at stake, a court must 
rigorously insure against granting summary judgment when any 
doubt exists concerning disputed material facts, see Perry 
v. Sinderman, 408 U.S. 593, 598 (1972); Boulware v. Bottaglia,
344 F.Supp. 889, 892-893 (D.Del. 1972) aff'd, 478 F.2d 1398 
(3d. Cir 1973) (per curiam).

As in complex antitrust litigation, in this complex 
civil rights action, "[S]ummary procedure should be used 
sparingly . . .where motive and intent play leading roles.
Thus, "It is especially in civil rights disputes that we
ought to be chary of disposing of the case on pre-trial motions."

- 1 1 -



Sisters of Prov. of St. Mary of the Woods v. City of Evanston,
335 F.Supp. 396 (N.D. 111. 1971) and in housing discrimination 
cases, like the instant action "[s]ummary judgment is rarely, 
if ever, appropriate." Gautreaux v. Chicago Housing Authority, 
265 F.Supp. 582, 584 (N.D. 111. 1967); United States v. Mitchell. 
327 F.Supp. 476, 483 (N.D. Ga. 1971).

In siim, as Justice, then Judge, Stevens stated in a
case involving a claim of housing discrimination:

"Our task when reviewing a summary 
Judgment is, of course, quite different 
from the review of a judgment entered 
after a ful trial. We must view the 
evidence, and the inferences which may 
be drawn therefrom, most favorably to 
the party against whom the summary judg­
ment was entered. Moreover, when the 
ultimate factual issue may turn on an 
appraisal of the defendants' motivation, 
it is especially important not to fore­
close cross-examination and the adversary 
testing of the evidence 'in front of the 
trier of fact who can observe the demeanor 
of the witness." Wang v. Lake Maxinhall 
Estate, Inc., 531 F.2d 832, 835 (7th Cir.
1976).

B. Defendant Board Of Realtors Fails 
To Meet Its Burden On A Motion 
For Summary Judgment_____________

Defendant Board ignores the principles cited above
or attempts to dismiss them by a citing at page 8 of its
memorandum a few instances in which summary judgment has
been granted. The mere fact that Rule 56 motions succeeded

35/
in whole or in part in those cases is of absolutely no aid
35/ The Court of Appeals in O'Malley v. Brierly, 477 F.2d
785 (3d. Cir. 1973) reversed the grant of summary judgment 
in part of the case and remanded the issue to the district 
Court. Moreover, with the exception of the decision in 
Wheatley Heights Neighborhood Coalition v.Jenna Resales Co., 
Prentice Hall Equal Opportunity in Housing Reporter 1113,757 
(E.D.N.Y. 1976), none of the cases cited by defendant either 
involve claims of housing discrimination or are remotely ana­
logous to the instant action. As will be demonstrated infra, 
the majority of plaintiffs claims against the Board are totally 
unlike the issues in Wheatley and, in any event, the facts and 
legal bases proffered of plaintiffs in that case are unlike
those present in the instant action.

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. C< . ■ : ■ i ._____ Z__ \i Vl I



to the Board's present motion for, of course, the facts in
each case and the claims they support must be individually 
analayzed pursuant to the standards set forth in III A, 
supra.

distort the allegations of the complaint and mischaracterizes 
the facts as set forth in Plaintiffs' Pre-Trial Statement,
The Board fails to acknowledge that it , along with the de­
fendant realtors, is responsible for pervasive patterns 
and policies of classwide housing discrimination in Eastern 
Delaware County. The Board's memoranda focuses on "the 
experiences of the two individual plaintiffs"; it completely 
ignores the facts in Plaintiffs' Pre-Trial Statement which 
establish a systematic pattern of housing discrimination

Coleman and Ms. Jackson with the defendant realtors, all 
active members of the Board, document the consequences of the 
Board's facilitating discrimination in real estate, and pro­
tecting and insulating its members from enforcement of the 
right to equal opportunity in housing.

allegation as set forth in Plaintiffs' Pre-Trial Statement. 
(Indeed, if it were to contest a material fact directly, 
the Board would automatically strike a fatal blow to its motion.) 
However, defendant in fact does dispute material portions of 
plaintiffs' allegations, but couches that dispute in broad, 
unsupported statements, in answer to facts which

36/ Plaintiffs' Pre-Trial Statement, e.g.II C, III C,
IV C, V C and D.

As in its earlier memoranda, the Board continues to

as well as experiences of Mr.

The Board does not directly dispute a single



establish that the Board used negotiation opportunities 
with the Pennsylvania Human Relations Commission in order 
to have cases against its members discontinued, and to have 
testing of its members cease or become ineffective, defendant 
boldly stated that such negotiations constituted "good faith 
efforts to institute an affirmative action program." (Board 
Memorandum, p. 25). While plaintiffs' specific claims are 
discussed in detail. Point IV infra, it is important to note 
thet in this and other statements throughout its brief, the 
Board ignores the rule that it "has the burden to show he 
is entitled to judgment under established principle. . ."
Adickes v. Kress & Co., supra; and that the inferences which 
may be drawn from the evidence must be viewed" most favor- 
bly to the party against whom summary judgment [is sought."
Wang v. Lake Maxinhall Estate, Inc., supra.

Furthermore, for the major part of its argument, pages 18-37, 
the Board fails to cite a single case brought pursuant to the 
fair housing laws, yet without authority, makes wholesale 
statements that sections of Plaintiffs' Pre-Trial Statement 
are "frivolous" and "meritless." For example, point VI B of 
Plaintiffs' Pre-Trial Statement states that the Board actively 
opposed passage not only of the Pennsylvania Fair Housing Law 
but also the federal civil rights housing bill. in response, 
the Board contends that these facts "are patently frivolous . . . 
[and] totally irrelevant." (Memorandum, p. 18.) However, federal 
courts in fair housing and other civil rights cases disagree 
with defendant and have given weight to the fact that a defendants's 
image was discriminatory and the defendant did nothing to change 
that image.

- 1 4 -



Unites States v. R^al Estate Development Corp., 347 F.Supp.
776, 782 (N.D. Miss. 1972); accord, United States v. Medical 
Society of South Carolina, 298 F.Supp. 145 (D.S.C. 1969).

The Board's failure to portray the facts accurately 
or to contest them with supportable documents; or to cite 
cases brought under the federal fair housing statutes, 42 
U.S.C. §§1981, 1982 and 3601 et. seq.. which support its 
motion for summary judgment makes it clear that it has not 
carried its burden under Rule 56. Nor, as the remainder of 
plaintiffs1 memoranda demonstrates, can the Board overcome 
that burden, for the facts set forth in Plaintiffs' Pre-Trial 
Statement establish that the Board has violated plaintiffs' 
rights under 42 U.S.C. §§1981, 1982 and 1985, and the Title 
VIII of the Civil Rights Act of 1968, 42 U.S.C. §§3601 et. seq.

IV. DEFENDANT DELAWARE COUNTY BOARD OF REALTORS 
CONSPIRED AND ACTED TO STOP TESTING OF ITS 
MEMBER REALTORS AND INTERFERE WITH ENFORCEMENT 
OF THE RIGHT TO FAIR HOUSING IN VIOLATION OF 
TITLE VIII OF. THE ,FAIR HOUSING ACT___________

A. The FactsSet Forth In Plaintiffs' Pre- 
Trial Statement Establish Actions By 
Defendant Board To Stop Testing Of Its 
Members, And To Frustrate The Effectiveness- 
Of Testing In Order To Insulate And Protect 
Its Members From Investigation Of Discrimi­
natory Practices And Enforcement Of the Fair 
Housing Laws________________________________

The facts set forth in section VI C. of Plaintiffs'

-15-

liHi \ ■ \ i ; : 1 \ } \



Pre-Trial Statement are evidence, inter alia, that:
" 32/(1) The Board knew that testing had 

revealed the discriminatory practices 
of its member realtors toward blacks;

(2) the Board knew that this evidence 
from testing had led to the filing of 
complaints in the Pennsylvania Human 
Relations Commissions,

(3) the Board knew that many such complaints 
had resulted in findings of probable 
cause, cease and desist orders or consent 
decrees;

(4) the Board wanted to stop testing of its 
members in order to insulate and protect 
them from investigation of discriminatory 
practices and enforcement of the fair 
housing laws;

(5) the Board knew that the Pennsylvania 
Human Relations Commission wanted the 
Boarg to sign a Memorandum of Understand- 
ing;=«f Relating to the Fair Housing Laws;

(6) the Board agreed to and did use the 
Commission's desire to sign a Memorandum 
of Understanding to pressure the 
Commission to cease testing of its members;

(7) the Board further discussed putting 
pressure on the Commission to cease 
testing by contacting state and federal 
legislators;

(8) residents of Eastern Delaware County, who 
were and are members of plaintiff Lansdowne- 
Upper Darby Area Fair Housing Council had 
filed complaints against Board members at 
the Commission;

37/ "Testing" or "Auditing" in housing is a practice to determine 
whether a realtor or apartment owner in engaging in discrimina­
tory treatment in violation of the Fair Housing Law. The 
description of testing by the Court in United States v. Youritan 
Construction Co., 370 F.Supp. 643, 647, aff ‘d . 509 F.2d 623 
(9th Cir.1975) provides a general understanding of testing:

[T]esters' . . .visited various of defendants' buildings 
to inquire about the availability of apartments for rent 
[or houses for sale]. The testers' method was to have 
a black applicant and a white applicant, usually of the 
same age and sex [and similar characteristics] inquiry 
of [the availability of] an apartment [or house]. . . "

38/ a copy of the Memorandum of Understanding is found at 
Board's Appendix, Exhibit 6 .

-16-



(9) the Board pressured and succeeded in 
having the Commission drop pending 
cases, based on testing by both the 
Commission and members of plaintiffs 
council against defendant W. Bruce 
Hudson as a condition to his signing 
the Memorandum of Understanding;

(10) After the Memorandum was signed, 
testing of Board members by the 
Commission ceased, and the cases 
against defendant W. Bruce Hudson 
became inactive or was closed, 
without public hearing, or any order;

39/
(11) the Board unanimously agreed to work 

together to achieve an end to all testing.

B. Testing For Racial Discrimination In 
Housing Is A Protected Activity Under 
Title VIII Of The Civil Rights Act Of 
1968; Actions To Interfere With That 
Right Are Prohibited By 42 U.S.C. $3617.

Title VIII of the Civil Rights Act of 1968, 42 U.S.C.
§3601 provides:

"It is the policy of the United States 
to provide, within constitutional limi­
tations, for fair housing throughout 
the United States."

To achieve this policy, the provisions Title VIII prohibit
a comprehensive range of discriminatory practices. See 42
U.S.C. §§3604-3606. To assure that persons could enforce
the rights established by Title VIII, Congress also provided:

"It shall be unlawful to coerce, intimidate, 
threaten or interfere with any person in 
-the exercise or enjoyment of, or on account 
of his having aided or encouraged any other 
person in the exercise or enjoyment of, any 
right granted or protected by section 3603,
3604, 3605, or 3606 of this title. This 
section may be enforced by appropriate civil 
action." 42 U.S.C. §3617.

39/ The above list of facts is based on facts contained 
in Section VI C of Plaintiffs' Pre-Trial Statement. For 
the Convenience of the Court, this section is annexed as 
Exhibit B.

-17-



The actions taken by the Board, to have testing of its 
members cease, and to frustrate and render ineffective 
testing of its realtor members by interfering with 
Plaintiffs * rights to exercise and aid in the exercise and 
enjoyment of rights under 42 U.S.C. §§ 3603-6, violated 
§3617.

Testing has been specifically held to be a legally 
protected activity under §3617. Northside Realty Associates. 
Inc., v. Chapman, et. al.,411 F.Supp. 1195 (N.D. Ga 1976). 
Northside Realty Associates arose under the following 
relevant facts: The United States filed a motion for
civil contempt against Northside alleging that the 
defendants had violated the terms of a permanent injunction 
enjoining violations of the Fair Housing Act. To establish 
the grounds for comtempt, the United States submitted the 
affidavits of testers who had participated in auditing 
Northside for compliance with the Fair Housing Act. Through 
discovery in the contempt action, Northside learned of the 
testing activity and brought suit against the testers, 
seeking damages for interference with economic relations, 
trespass,and other grounds. The testers alleged that 
their activities were expressly protected by the Fair Housing 
Act of 1968, 42 U.S.C. §§3601 et. seq; and that the suit 
against them violated the right conferred by §3617 to 
exercise and aid others in the exercise and enjoyment of the 
right to equal housing opportunity. The district Court 
held that, just as similar language in §1973 i(b) of the 
Voting Rights Act creates a legal right for persons aiding 

any person to vote to be free from intimidation, threats

-18-



foror coercion, so, too, §3617 creates a legal right 
testers to be free from coercion, intimidation or in­
terference in their activity. 411 F.Supp. at 1198.

Likewise, obstacles to testing were found to be 
contrary to the Fair Housing Act in United States v. 
Wisconsin, 395 F.Supp. 732 (W.D. Wise. 1975). In hold 
invalid a State statute which barred testing, the district 
court found:

4 0 /

"Section 101.22(4m) makes it 
difficult if not impossible for persons 
seeking housing without discrimination 
based on race, color, religion or 
national origin to determine whether 
unlawful discrimination has been prac­
ticed against them and chills the 
exercise of the right to equal housing 
opportunity. . . [and] the statute must 
be viewed as an obstacle to the accom­
plishment of the principal objective of 
Congress in passing the Fair Housing Act, 
that is, to provide fair housing through­
out the United States." Id. at 733,734.

The basis for the holdings in Northside Realty, supra, 
and United States v. Wisconsin, supra, has been consistently 
recognized by federal courts.

Despite the broad protection afforded black homeseekers
by Title VIII and 42 U.S.C. §§1981 and 1982, acts of racial
discrimination are often difficult to prove,
housing today is often disguised or subt

since racism in 
Testing of real­

tors for evidence of housing discrimination, such as that

40/ Rachel v. Georgia, 384 U.S. 780 (1966)? Thompson v. Brown, 
434 F.2d 1092 (5th Cir. 1970); Whatley v. City of Vidalia,
399 F .2d 521 (5th Cir. 1968).
41/ United States Commission on Civil Rights, Understanding 
Fair Housing 15 (1973).

- 1 9 -

—T



conducted by plaintiff Lansdowne-Upper Darby Area Fair 
Housing Council is key to proving, and thereby eliminating 
discriminatory conduct in a world where defendants are 
unlikely to admit racial motivation for their actions or 
differential treatment between black and white homeseekers.
The vital role that "testing" evidence plays in enforcement 
of the right of blacks to equal opportunity housing has been 
widely recognized and appreciated by the federal courts:

"The Fair Housing Act of 1968 was intended 
to make unlawful simpleminded as well as 
sophisticated and subtle modes of discrim­
ination. It is the rare case today where 
the defendant either admits his illegal 
conduct or where he sufficiently publicizes 
it so as to make testers unnecessary. For 
this reason, evidence gathered by a tester 
may, in many cases, be the only competent 
evidence available to prove that the defen­
dant has engaged in unlawful conduct." Zuch 
v. Hussey 394 F.Supp. 1028, 1051 (E.D. Mich.
1975), aff'd. 547 F.2d 1168 (6th Cir. 1977).

The Court of Appeals for the Tenth Circuit has asserted that 
"[i]t would be difficult indeed to prove discrimination in housing 
without this means of gathering evidence." Hamilton v. Miller,
477 F.2d 908, 910-1 n.l (10th Cir. 1973). In a case where 
a white woman served as a "tester" after a black man sus­
pected that he was denied an apartment because of racial 
discrimination, the Eight Circuit declared, "The use of 
checkers in this situation is well established and has been 
recognized as necessary under similar circumstances,"
Wharton v. Knefel, 562 F.2d 550, 554 (8th Cir. 1977).

Thus, "[ejvidence of the experiences of white and 
black 'testers* or 'checkers' has been uniformly admitted 
into evidence to show the existence of a discriminatory policy." 
United States v. Youritan Constr. Co., supra, 370 F. Supp. 
at 650; Wharton v., Knefel, 562 F.2d at 554;

- 20 -



Smith v. Anchor Building Corp., 536, F .2d 231, 234 (8th
Cir. 1976); Hamilton v. Miller, 477 F.2d at 909; Johnson 
v. Jerry Pals Real Estate, 485, F.2d 528, 530 (7th Cir. 
1973); Zuch v. Hussey, 394 F.Supp. at 1051; Williamson 
v . Hampton Management Co., 339 F.Supp. 1146, 1148 (N.D.
111. 1972); Brown v. Balias, 331 F.Supp. 1033, 1035 
(N.D. Tex. 1971); Bush v. Kaim, 297 F.Supp. 151, 155-6 
(N.D. Ohio 1969); Harris v. Jones, 296 F.Supp. 1082,
1083 (D. Mass 1969); Newbern v. Lake Lorelei, 308 F.Supp.
407, 415 (S.D. Ohio 1968); see also Hughes v. Dyer, 378 
F.Supp. 1305, 1308 (W.D. Mo. 1974).

Most recently, the Court of Appeals for the Third Circuit 
regarded testing as so crucial to enforcement of the fair 
housing laws that it held testers have standing to challenge 
racially discriminatory behavior. Meyers v. Pennypack Woods 
Home Association, 559 F.2d 894, 898 (3d. Cir.1977). The 
Court of Appeals for the Seventh Circuit in similarly holding
that testers have standing under the fair housing laws stated

"What the testers did was to generate 
evidence suggesting the perfectly permissible 
interference that the defendants have been 
engaging, as the complaints allege, in the 
practice of racial steering with all of the 
buyer prospects who come through their doors. 
Racial steering, by its nature, is a subtle 
form of discrimination that is difficult if 
not impossible to prove otherwise than by 
comparing the areas to which homeseekers of 
different races are directed." Village of 
BeUwood v. Gladstone Realtors. 569 F.2d 1013,
1016 (7th Cir. 1978, cert, granted. ____U.S.
______(1978) .

C. Defendant Board's Argument As To
Plaintiffs' Claim Is Without Merit;
At The Least, Triable Issues Of Fact 
Are Raised Which Preclude Summary Judgment

Defendant Board seeks to obfuscate its illegal conduct 
by ignoring the facts set forth in plaintiffs' Pre-Trial

- 21 -

I '
r



claim is based on the execution of the Memorandum of 
Understanding itself. (July 21, 1978 Memorandum in Support 
of Boards Motion for Summary. Judgment, p. 25.) That is,

set forth in Plaintiffs’ Pre-Trial Statement establish, 
defendant Board unlawfully sought and seeks to interfere 
with the right of plaintiffs to foster fair housing and 
eradicate discrimination through testing and use of testing 
to obtain relief at the Pennsylvania Human Relations Commission. 
It is true that most of the Board's actions took place in 
the context of negotiation and discussion of the Memorandum 

of Understanding, but it is those actions and not the Memorandum 
itself, which violates Title VIII of the Fair Housing Laws.

The Board admits, "There is no question but that Board 
members disliked the testing that was occurring in Delaware 
County." Indeed, defendant further acknowledges that the reason 
the Board members disliked testing was:

". . . a  lot of members were confused 
about what the law really was in the 
sale of housing; and. . . because of 
the misunderstanding that existed, not 
only by professionals but by owners as 
well, . . . the human relations people 
were very often coming into offices and 
testing." (Deposition of James J. Pace. 
Chairman of the Board's Equal Opportunity 
Committee, page 59, cited in the Board's 
Memorandum at page 28.)

42/ It is worth note that Defendant Board conveniently refers 
to Plaintiffs' Answer to the Board's Interrogatories and ignores 
Plaintiffs' Detailed Pre-Trial Statement (July 21, 1978 
Memorandum in Support of Board's Motion for Summary Judgment, 
p. 25) .
43/ Thus, the explicit wording of the Memorandum of Understand­
ing set forth at pages 26-27 of defendants' Memorandum is 
basically irrelevant.

quite simply, as the facts

- 2 2 -



Ten years after the passage of Title VIII and the decision
of the Supreme Court in Jones v. Alfred H. Mayer Co.. 392 
U.S. 409 (1968), discriminatory conduct can hardly be 
shielded by claims of "confusion". See Gore v . Turner,
563 F.2d 159, 164 (5th Cir. 1977). There is nothing 
difficult to understand about a law which says that all 
persons must be treated equally regardless of the color 
of their skin.

The Board's general affirmation of good faith or denial 
of discrimination cannot serve to rebut evidence of illegal 
conduct, Alexander v. Louisiana. 405 U.S. 625, 632 (1972); 
Turner v . Fouche, 396 U.S. 346, 361 (1970); Sims v. Georgia. 
389 U.S. 404, 407 (1967); Williams v. Matthews, 499 F.2d 
819, 827 (8th Cir. 1974). The Board never denies that 
it conspired to and sought to interfere with testing and the 
effectiveness of testing. Board Memorandum, p. 27.
However, to the extent that its assertions of good faith are 
raised, genuine issues of fact exist which preclude a 
grant of summary judgment.

Evidence listed in Plaintiffs1 Pre-Trial Statement 
contradict the Board's assertion that the Pennsylvania 
Human Relations Commission "steadfastly refused to enter 
into any agreement to end testing and communicated that 
refusal to the Board." (Board Memorandum, p.27 ). For 
one thing, in January, 1975, the Board was told that 
testing by the Commission had been temporarily cancelled.
(See Minutes January 21, 1975, Board of Directors, Delaware 
County Board of Realtors, p.4. listed in Plaintiffs' Pre-Trial 
Statement as Document 11, p. 63, attached as Exhibit C.)

- 2 3 -



Secondly, the activities of the Board after March 4, 1975 
demonstrates that the Board did not consider the continuance 
of testing as a fait accompli, for it continued to exert 
pressure on the Commission. (See February 13, 1976 letter 
of James J. Pace to Vincent Rossi, listed in Plaintiffs' 
Pre-Trial Statement as Document 18, p. 64, attached as 
Exhibit D. Plaintiffs' Pre-Trial Statement VI C 10, p. 50.) 
Thirdly, there are no facts that show Board members did not 
see the negotiations involving the Memorandum as a protec­
tive device. Indeed, the facts in Plaintiffs' Pre-Trial 
Statement show the exact opposite. See e.g., VI C 12, p. 51 
and Letter of James Pace, attached as Exhibit D. Finally, 
the fact that Pace may receive reports of what Board members 
believe to be testing proves nothing: those reports do
not claim the Commission is testing nor are they necessarily 
accurate.

The Board does not deny it pressured the Commission 
to drop cases against Bruce Hudson. Indeed, in the face of 
Plaintiffs.' Pre-Trial Statement, VI C 11, 12, 13, 14, pp. 51- 
52, it would be hard put to do so. The fact the Commission 
acceded to the Board's pressure can in no way insulate the 
interference with testing. Plaintiffs' claims are 
not a "collateral attack" on the Commission; the cases cited 
by the Board at page 31 of its Memorandum have absolutely 
nothing to do with violations of 42 U.S.C. §3617. In 
O'Burn v. Shapp, 70 F.R.D. 549 (E.D. Pa. 1976), plaintiffs' 
non-minority police officers, sought to challenge a hiring 
and promotion plan for minorities by the Pennsylvania State 
Police, which was embodied in a consent decree. The Court

- 2 4 -



in O'Burn held that an independent suit was improper
because plaintiffs had the opportunity to contest the
decree in the original lawsuit. Similarly, in Black and
White Children of Pontiac School System v. School District
of Pontiac, 464 F.2d 1030 (6th Cir. 1972), the Court held;
"The proper avenue for relief [for] unanticipated problems
which had developed in the carrying out of the Court1s
order was an application to intervene and a motion for
additional relief in the principal case." Those cases in
no way deal with a claim of unlawful pressure to defeat
civil rights legislation. In any event, there is no
"consent decree" at issue in this case. Section 3617
prohibits interference with testing; plaintiffs' facts
demonstrate the Board took action to interfere with and
frustrate the testing and purpose of testing by plaintiff
Council. See affidavit of Carie Isard, attached as 

44/
Exhibit A.

The Board finally cites anti-trust cases for the 
proposition that their negotiations are privileged. The 
Board's reliance is misplaced; each of those cases bases 
its holding on the legislative history of the anti-trust 
laws. E.g. Eastern Railway Presidents Conference v. Noerr 
Motor Freight, Inc., 365 U.S. 127, 137 (1961) .

The Board concludes its argument with the unsupported 
statement that it did not lobby for preferential treatment 
with the Commission. (Board Memorandum, p. 32.) The simple 
response is that Plaintiffs' Pre-Trial Statement, VI C

44/ Linda R.S. v. Richard D , 410 U.S. 614 (1973), cited at 
page 31 of the Board's Memorandum is, as the Board itself 
states, irrelevant, since no claim is made against the 
Pennsylvania Human Relations Commission.

- 2 5 -

H ' ‘ -  T '7T—



disputes that and this denial consequently raises an issue
of fact that precludes summary judgment. More importantly,
the Minutes of the Board and the letter of James Pace to
the Commission on their face completely undercut the

45/
veracity of the Board's statement.

In sum, the facts in Plaintiffs' Pre-Trial Statement
establish a concerted effort on the part of the Board to
interfere with testing and to frustrate the effectiveness
of the plaintiffs' right to aid in the enjoyment of equal
housing opportunity, in violation of 42 U.S.C. §3617. The
Board submits no evidence which does or could refute the
facts contained in Plaintiffs' Pre-Trial Statement and
offers no civil rights or housing discrimination case law
contrary to plaintiffs' claim.

V. PLAINTIFFS HAVE PRESENTED FACTS WHICH
ESTABLISH A CONSPIRACY TO INSULATE MEMBERS 
FROM COMPLAINTS OF HOUSING DISCRIMINATION 
AND TO INTERFERE WITH TESTING IN VIOLATION 
OF 42 U.S.C. §1985(3) .____________________

In response to this Court's order, Plaintiffs filed a
detailed Pre-Trial Statement which at VI clearly sets forth

46/
specific details constituting a violation of 42 U.S.C. §1985(3).

45/ The Board cannot rely on the affidavit of Raymond Cartwright. 
At his deposition, he admitted that paragraphs 6a and 6b of 
his affidavit were not based on personal knowledge. (Deposition,
pp. 60-61.)

46/ As stated in Plaintiffs' prior Brief In Opposition to 
Defendants' Motion to Dismiss Complaint Under 42 U.S.C. §1985 
For Failure to State a Claim Filed By Defendant Delaware County 
Board of Realtors, the complaint easily meets the pleading 
elements as set forth in Griffin v. Breckenridge. 403 U.S. 88 
(1971). In any event, there is no doubt that the facts in 
Plaintiffs' Pre-Trial Statement meet those requirements and, 
to the extent the Court may find the complaint per se deficient 
the proper course at this juncture is to allow plaintiffs leave 
to amend their complaint to conform to the evidence. Foman v, 
Davis, 371 U.S. 178 (1962).

-26-

l
r i

j i *



The facts set forth in VI C, attached hereto as
Exhibit B clearly set forth a conspiratorial agreement 
between the Board and named defendant realtors to cease 
testing and to seek protection against complaints of 
housing discrimination.

Section VI A of Plaintiffs' Pre-Trial Statement 
establishes the active involvement of the principals 
of the defendant realtors in the Board. Section VI C 
of Plaintiffs' Pre-Trial Statement (annexed as Exhibit 
B) not only establishes a violation of Title VIII (see 
part IV of this memorandum, supra), but also establishes 
a conspiracy between the Board and member realtors - 
including the named defendant realtors - to violate 
Title VIII by interfering with those who sought to 
enforce the fair housing laws.

The relevant criteria to determine whether the facts 
allege a conspiracy under §1985(3) are: (I) a conspiracy;
(2) for the purpose of depriving, either directly or 
indirectly, any person or class of persons of the equal 
protection of the laws, or of equal privileges and immuni­
ties under the laws; (3) an act by any member of the 
conspiracy in furtherance of the object of the conspiracy; 
whereby (4) plainfiffs were deprived of having and exercising 
any right or privilege of a citizen of the United States. 
Griffin v. Breckenridge, 403 U.S. 88,.102-103 (1971).

A. Conspiracy
The facts in VI C establish that the Board and its members, 

including specifically D. Louis Grady (Spano Real Estate Co.) 
and Bruce Hudson met and conspired:

1. The Equal Opportunity Committee of the

Board acted on behalf of the Board (VI C 3, 6 p. 49-50)

- 2 7 -



2. D. Louis Grady and Bruce Hudson
were members of the Equal Opportunity Committee.
(VI C 3)

3. The Equal Opportunity Committee 
and Board wanted to stop testing because its mem­
bers were being named as respondents and defendants 
as a result of testing (VI C 1)

4. The Equal Opportunity Committee, 
the Board and defendant realtors conspired to
use various means to stop testing. (VI C 10, 11, 19)

5. The Board conspired with Bruce Hudson 
to pressure to have the cases against Hudson, which 
had brought as a result of plaintiffs' testing, dis­
continued without public hearing or consent decree.
(VI C 11)
The number of the defendant realtors on the Board, and on 

the Equal Opportunity Committee, and the fact that the Equal 
Opportunity Committee was acting on behalf of the Board, as 
well as the express and implied agreements to work to stop 
testing and have cases against Bruce Hudson dropped, clearly 
establish a "conspiracy". In Adickes v. Kress, supra, a 
white Mississippi "Freedom School" teacher with a group of 
her black students alleged, inter alia, she was refused 
service at a lunch counter and arrested as a result of a 
conspiracy between Kress and the Hattiesburg, Mississippi police 
Summary judgment was granted on the contention of Kress that 
the teacher had no knowledge of any communication or agreement 
between Kress employees and a policeman in the store, and

-28-

t



was relying on circumstantial evidence to support 
the conspiracy allegation. The Supreme Court reversed.

"[WJ e conclude that respondent failed 
to fulfill its initial burden of demon­
strating what is a critical element in 
this aspect of the case-that there was 
no policeman in the store. If a police­
man were present, we think it would be 
open to a jury, in light of the sequences 
that followed, to infer from the circum­
stances that the policeman and a Kress 
employee had a 'meeting of the minds' 
and thus reached an understanding that 
petitioner should be refused service.
Because '[o]n summary judgment the 
inferences to be drawn fran the underlying 
facts contained in [the moving party's] 
materials must be viewed in the light most 
favorable to the. party opposing the motion, ' 
United States v. Diebold, Inc., 369 U.S.
654, 655, 8 L. Ed. 2d 176, 177, 82 S Ct. 993 
(1962), we think respondent's failure to show 
there was no policeman in the store requires 
reversal." 398 U.S. at 158-159.

The Board fails to allege that defendant realtors were 
not present during the meetings of the Equal Opportunity 
Committee and/or the Board of Directors. Under the
reasoning and holding of Adickes v. Kress, it is therefore
impossible to conclude at this time there was no "meeting 

47/
of the minds."

B. Deprivation, Either Directly Or 
Indirectly, Any Person Or Class .
Of Persons of Protected Rights

As point IV B of this memorandum, supra, demonstrates,
testing is a protected right under Title VIII, 42 U.S.C.

47 /_J A written agreement or even explicit agreement is
unnecessary to support a claim of conspiracy under §1985(3). 
As the Court stated in Santiago v. city of Philadelphia.
435 F.Supp. 136, 155 (E.D. Penn. 1977): "Conspiracy in this 
context [§1985 (3.)] means that the co-conspirators must have 
agreed, at_ least tacitly, to commit acts which will deprive 
plaintiff of equal protection of the law." (Emphasis added.)

- 2  9 -



§§3603-6 and any activities to interfere with testing 
violates 42 U.S.C. §3617. The actions of the Board 
described in Plaintiffs' Pre-Trial Statement VI C (see 
point IV A of this memorandum) did not occur in a 
vacuum; the Board agreed--2 conspired - to work together 
to have all testing cease, to minimize testing to the 
greatest extent possible and to frustrate the purpose 
of testing by having cases dropped which had been 
brought as a result of testing. A violation of the 
fair housing laws is plainly a deprivation of "equal 
protection of the laws or of equal privileges." e . g,, 
Progress Development Coro, v. Mitchell. 386 F.2d 222,
234 (7th Cir. 1961) (§1985(3) conspiracy by village
officials and others to prevent racially integrated 
development) 7 Clark v. Universal Builders. Inc.. 409 
F.Supp. 1274, 1278-79 (N.D. 111. 1976) (§1985(3)
conspiracy alleged by black homeseekers against builders 
and realtors; "all of the elements necessary for an 
action under 42 U.S.C. §1985(3) are present"); Planning 
For People Coalition v. County of Dupage. Prentice-Hall 
Equal Opportunity in Housing Rptr. 513,753 (N.D. ill. 
1976) ( §1985(3) conspiracy to exclude blacks by county 
and developers ) .

C. An Act By Any Member Of The Conspiracy 
In Furtherance Of The Object Of The 
Conspiracy____ __________ ______

Paragraph III c 12-13 of Plaintiffs Pre-Trial Statement 
constitute acts in furtherance of the conspiracy:

12. On February 13, 1976, James Pace, 
as Chairman of defendants' Equal Opportunity Committee, 
wrote to Vincent Rossi, Housing Specialist, Pennsylvania

- 3 0 -



Human Relations Commission to secure information 
as to how the signing of the Memorandum of Under­
standing will affect "matters that are now pending 
with the Human Relations Commission such as the 
Hudson matter to present testing procedures and 
protection against actions from the Justice 
Department."

13. Sometime between February 13, 1976 
and April 14, 1976, James Pace, as Chairman of 
the Equal Opportunity Commission had a discussion 
with Mr. Rossi to seek the discontinuance of the 
cases against defendant Hudson."
These paragraphs set forth specific dates and events, 

supported by documents, during which a member of the Board, 
acting on behalf of the Board and defendant realtors, acted 
to further the object of stopping testing and having 
cases against Bruce Hudson dropped. Plaintiffs have thus 
met the third requirement of §1985(3), "that one of them 
performed an overt act in furtherance of that conspiracy" 
Hisch v. Eastern Pa. Psychiatric Institute, 434 F.Supp.
963, 979 (E.D. Pa 1977).

D. Plaintiffs Were Deprived Of Their Rights

As discussed earlier at Part IV of this Memorandum, 
interference with the right to test and the effectiveness 
of testing deprived the members of plaintiff Lansdowne-Upper 
Darby Area Fair Housing Council, Inc. of their rights under 
42 U.S.C. §3617.

Plaintiffs establish far more than only that defendant 
realtors have acted in similar ways. In sum, plaintiffs 
have presented facts which establish a conspiracy to violate 
plaintiffs' rights under 42 U.S.C. §3617 in violation of 
§1985(3).

- 3 1 -



VI. DEFENDANT BOARD MISSTATES THE LEGAL 
OBLIGATION OF REALTOR ASSOCIATIONS 
AND MULTIPLE LISTING SERVICES UNDER 
THE CIVIL RIGHTS ACT_______________

The facts in Plaintiffs' Pre-Trial Statement at VI 
B, C, D, F 9 evidence a deliberate refusal to take any 
action, consistent with its own by-laws and codes, against 
members whom it has actual knowledge have discriminated 
against blacks; an agreement and series of actions, instead, 
to insulate its members from enforcement of fair housing 
laws and thereby facilitate their illegal conduct; and 
a refusal to instruct its members in the non-discriminatory 
use of the services it provides.

Such conduct does not escape judicial scrutiny by the 
Board's general contention that the Board has no affirmative 
statutory obligation to police and enforce compliance with 
the fair housing laws.

To begin with, the Board's own by-laws and code of ethics 
belie its suggestion (Board Memorandum, p.4) that it does not 
have authority to discipline its members for racially 
discriminatory housing practices. The By-Laws of defendant 
Delaware County Board of Realtors Article XVI, Section 4 
provides:

"Any member may be suspended, expelled or 
subjected to other disciplinary action for any in­
fraction of the By-Laws or of duly promulgated rules, 
regulations and standards of practice and business 
conduct or for unethical conduct or for failure at 
any time to meet and maintain all qualifications for 
membership established by these By-Laws or by the 
Director."

The By-Laws of defendant Delaware County Board of Realtors, 
Article VI, Section 6 provides:

"Salesmen members shall maintain the same 
high standards of ethical conduct in the real estate 
business as is required of Active members."

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• : i t 5 1 I \ b it i



Article 10 of the National Association of Realtors Code 

of Ethics provides:
"The REALTOR shall not deny equal pro­

fessional services to any person for reasons of 
race, creed, sex or country of national origin."

In addition, the Board has a comprehensive set of rules and
regulations governing membership in and use of its Multiple
Listing Service, violation of which subjects a participating

48/realtor to disciplinary review.
In the face of these rules, the evidence demonstrates 

the Board not only fails to discipline its members for actions 
the Board knows are discriminatory, but, indeed, takes 
affirmative sets to protect such members. The Board is 
liable for this conduct under the fair housing laws.

The Civil Rights Act which form the predicate for 
plaintiffs' claim, 42 U.S.C. §§1981 and 1982, and Title VIII 
of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601 et. seq. , 
individually and together constitute a broad-based prohibition 
of. segregation and discrimination in housing practices. As 
the Supreme Court stated in Jones v. Alfred Mayer, 392 U.S.
409, 424, (1968):

"[Section 1982] plainly meant to secure 
that right [to purchase and lease property 
equally without regard to race] against 
interference from any source whatever, 
whether governmental or private. " (Emphasis added.)

In the words of Senator Trumball, sponsor of what became
§1982, that act "would affirmatively secure for all men,
whatever their race or color. . .the right to acquire
property. . .the right to enforce rights in the Courts, to
make contracts and to inherit and dispose of property."
Id., 392 U.S. at 432. (Emphasis added.)

48/ Plaintiffs' Pre-Trial Statement, VI F 3.
-33-

: i ■ i M t



For persons to enjoy their guaranteed civil rights, they 
also have to have the right to be free from actions which 
facilitate or aid the violation of such rights. An argument 
similar to the Boards', that aid to or facilitation of dis­
criminatory conduct is not forbidden as long as the party did 
not itself discriminate, was rejected by the Supreme Court in 
Norwood v. Harrison, 413 U.S. 455 (1973). Plaintiffs in Norwood 
challenged the receipt by private, segregated schools of text­
books from the State. The State argued plaintiffs lacked a 
cause of action because the State itself was not discriminating 
and was merely providing educational tools to students, not 
school. The Supreme Court agreed with plaintiffs that the 
State's behavior violated their rights and stated:

"[I]t is also axiomatic that a State 
may not induce, encourage or promote 
private persons to accomplish what 
it is constitutionally forbidden to 
accomplish," citing Lee v. Macon 
County Board of Education, 267 F. 
Supp. 458, 475-476 (M.D. Ala. 1967) 
Id., 413 U.S. at 465.

Accord, Bishop v, Starkville Academy, 442 F. Supp. 1176 
(N.D. Miss. 1977) (3 Judge Ct.).

The facts in Plaintffs' Pre-Trial Statement VI D 4-6 
establish:

"4. The Pennsylvania Real Estate 
Commission determined by order dated 
July 22, 1970 that Vincent Spano, 
doing business at Spano Real Estate 
Co., violated the Real Estate Brokers 
License Act by purposely discrimina­
ting on the basis of race and revoked 
defendant Spano's real estate license.
"5. After the adjudication by the 
Commission, defendant Delaware County 
Board of Realtors took no disciplinary 
action against either Vincent Spano, 
Spano Real Estate Co., or D. Louis 
Grady, Spano's designated broker."

34



"6. A special Spano committee of defendant 
Board was formed but was immediately dis­
banded when the revocation of Spano's 
license was reversed in the Commonwealth 
Court of Pennsylvania, although the basis 
of the reversal was not that Spano was 
innocent of the charges but that pro­
visions for revocation could not be 
retroactively applied."

A reasonable inference to be drawn from these facts is that
the purpose of the "special Spano committee" was to aid
Spano in fighting enforcement of the fair housing laws; in
light of the immediate disbandment of the committee after
Spano's technical victory, no other inference is reasonable.
In addition, although the Board frequently disciplines
members for disputes over commissions and the like, not
a single member has been disciplined for discriminatory
behavior, although the Board had actual knowledge of the

12/violations. The actions taken by the Board to protect 
Bruce Hudson from a Commission hearing is a stark example 
of the Board's aid to discriminating members. In general^ 
the Board's persistent condonation of its members'discrimi­
natory behavior facilitates the perpetuation of such conduct; 
absent discipline and enforcement of its own rules by this 
important arm of the real estate industry in Eastern Delaware 
County, members are given the "green light" by the Board 
to continue their illegal ways.

That the Board's condonation may not be the "precise" 
cause of racial discrimination by its members is irrelevant.
4t9/ Plaintiffs' Pre-Trial Statement, VI D 7-8 at p. 54 
VI C 11-14 at pp. 51-52.

-35-

l



■jrTirn m r.̂ ; - --. >**>; ••

"If the defendant is a private individual or a group of
private individuals seeking to protect private rights,
the courts cannot be overly solicitous when the effect is
to perpetuate segregated housing." Metropolitan Housihg
Development Corp. v. Village of Arlington Heights. 558
F.2d 1283, 1293 (1977); see Smith v. Anchor Building Corp..
supra. As the Supreme Court stated in Norwood v. Harrison.
supra. 413 U.S. at 465-466:

" . . .  the Constitution does not permit. . . 
aid [to] discrimination even when there is 
no precise causal relationship between 
state financial aid to a private school 
and the continued well-being of that 
school. . . if that aid has a significant 
tendency to facilitate, reinforce and support 
private discrimination." 2̂-/

Plaintiffs need not show that the Board intended to
facilitate or support discrimination. A showing of
discriminatory effect is sufficient to make out a case of
prima facie discrimination. E,g., Metropolitan Housing
Development Corp. v. Village of Arlington Heights, supra;.
Williams v. Matthews Co., supra, 499 F.2d at 826-828, cert.
denied, 419 U.S. 1021 (1974). For "[t]o insulate [an
organization of realtors] from Title VIII liability is to
retreat from the affirmative mandate of §3604(a)." Fair
Housing Council v. Eastern Bergen County Multiple Listing
Service, 422 F. Supp. 1071, 1075-1076 (D.N.J. 1976).

50 / The fact the Board is not a governmental body is 
irrelevant to the application of Norwood to the instant 
case. Norwood arose under 42 U.S.C. §1983 which is limited 
to state actions; in contrast, 42 U.S.C. §§1981, 1982, and 
3601 ejt. seg. apply to private bodies.

-36-



Defendant's reliance on Rizzo v. Goode, 423 U.S. 362
(1976) and Hollins v. Kraas. 369 F.Supp. 1355 (N.D. 111.
1973) is misplaced. The theory of liability rejected in
those cases assumed no knowledge of discriminatory behavior
and subsequent refusal to discipline pursuant to established 

si/regulation. In contrast, the facts here evidence the
Board's failure to discipline in the face of knowledge
of discrimination and affirmative actions to protect

. 52/dis crimination.
The Board's condonation of the use of its Multiple 

Listing Services cannot be separated from its general 
condonation, facilitation and support of its members' dis­
criminatory practices. Despite its knowledge of discrimi­
nation on the part of its members, it refuses to insist or 
ensure that the Service is used non-discriminatorly. Indeed, 
the Board does not even instruct its members to do so. 
Plaintiffs' Pre-Trial Statement, VI F 9. This is not 
surprising,since the person hired and paid by the Board to

5i/ Moreover, the scope of Rizzo has been seriously narrowed 
by the Supreme Court's recent decision in Monell v. Dept. 
of Social Services of the City of New York, 46 U.S.L.W. 4569 
(June 6, 1978) which held a city liable under 42 U.S.C. §1983 
for injury suffered, inter alia, as a result of policy or 
customs which may fairly be said to represent official policy. 
Id. at 4579.
5?/ The Board pleads:,innocence simply because its By-Laws 
provide for written complaints; to allow defendants to
use such a rule to avoid responsibility in the face of actual 
knowledge would fly in the face of the holdings and reasoning 
in Norwood, supra. Arlington Heights, supra, and the other 
cases cited immediately above. After all, nothing prevented 
the Board from filing written complaints.

- 3 7 -



conduct its course on the Multiple Listing Service is 
D. Louis Grady principal of Spano Real Estate Co., which 
has had a continuous history of racial discrimination. 
Plaintiffs' Pre-Trial Statement, III, III A, VI D 4,
D 7, F 9.

The per se immunity claimed for the Multiple Listing 
Service has been rejected on summary judgment in an 
indistinguishable case. Fair Housing Council v. Eastern 
Bergen County Multiple Listing Service, supra* see also
Singleton v. Gendason. 545 F.2d 1224, 1226-1228 (9th Cir.53/
1976) .

The Board's reliance on the recent decision in Wheatley 
Heights Neighborhood Coalition v. Jenna Resales, supra, is 
also misplaced. Unlike the present case, there was no 
facts offered in Wheatley that the Board failed to instruct 
participating members of the MLS to use the service in a 
non-discriminatory manner; nor were there facts showing 
that the entity which solely controlled the MLS, in this 
case the Board, had fostered, facilitated and supported 
discrimination by its members. The reluctance of the 
Court in Wheatley to apply the theory of respondent superior 
to an MLS (but not a Board of Realtors) is of no aid to

53/ Linmark Associates v. Township of Willingboro. 97
S.Ct. 1614 (1977) and New York Times Co, v. Sullivan,
376 U.S. 254 (1964) have no application here; no one 
seeks suppression of any First Amendment right of the 
Board or the Multiple Listing Service, nor can the Board 
license discrimination, Pittsburgh Press Co. v. Human 
Relations Commission. 413 U.S. 376 (1973)

- 3 8 -



defendant since plaintiffs here do not rest their claim 
of that theory of liability but rather on the theory, 
discussed supra, that the affirmative mandate of the fair 
housing laws prohibit practices and actions which aid, 
encourage or foster racial discrimination in housing.

The Board weakly attempts to dismiss portions of 
Plaintiffs' Pre-Trial Statement^ As stated previously, 
it is indeed relevant that the Board actively fought 
passage of laws prohibiting race discrimination in 
housing. Also relevant is the consistent refusal to 
and attempt to frustrate community efforts to foster 
fair housing. See Plaintiffs' Pre-Trial Statement 
VI E. Courts have given wait to a defendant's discrimi­
natory image and its failure to correct that image.
U.S. Real Estate Development Corp., supra, U.S. Medical 
Society of South Carolina, supra.

Finally, the Board's attempt to use VI D 8 of 
Plaintiffs' Pre-Trial Statement to show that its members 
engage in non-d is criminatory sales i.s absurd. For one 
thing, such a statement hardly follows the principle 
that inferences are to be drawn in a light most favorable 
to the party against whom summary judgment is sought.
More importantly, the paragraph, is evidence that the 
Board blackballs the unusual member who might sell a 
black family a home in a white neighborhood.

In sum, plaintiffs facts constitute evidence of 
violations of the fair housing laws.

-39-



VII. MATERIAL ISSUES OF FACT EXIST AS TO 
WHETHER THE BOARD DISCRIMINATES IN 
ITS. MEMBERSHIP AGAINST FAIR HOUSING 
REALTORS _______________________

Part VI of Plaintiffs' Pre-Trial Statement and its
supporting documents present facts which give rise to
an inference that the Board denied membership and
participation in its Multiple Listing Service to Suburban
Fair Housing, Inc. and Margaret Collins because she was a

54/
fair housing realtor.

The Board's argument that there is no material issue 
of fact as to the rejection of Ms. Collins' application 
must fail. The theory in her suit against the Board, 
Suburban Fair Housing, Inc, v. Delaware County Board of 
Realtors was restraint of trade; the issue of discrimination 
was never raised in the proceeding. That the Board 
discriminatorily excluded Suburban Fair Housing, Inc. 
and Ms. Collins is ultimately a legal conclusion rather 
than a factual matter, so the Board's reliance is misplaced/ 
Moreover, the Board confuses the legal theory of the prior 
lawsuit for the factual question of the Board's purpose 
or motive for the exclusion; it is often the case that

54/ The fact that Ms.. Collins is white does not weaken 
this claim. See, e,g., McDonald v. Sante Fe Trail Trans­
portation Cp., 427 U.S. 273 (1976); Trafficante v. Metro­
politan Life Ins. Co.. 409 U.S. 205 (1972).

-40-

i : r.r



every factual nuance is neither considered norrejected in 
a particular legal theory. Of course, restraint of trade 
and discrimination are not mutually exclusive. See, e.g.. 
Bratcher v. Akron Area Board of Realtors, 381 F.2d 723 
(6th Cir. 1967) ("[AJppelants undertake to apply the anti­
trust laws to an alleged conspiracy by a board of realtors 
and others, which conspiracy allegedly prevents Negroes from 
owning or renting property in white neighborhoods".)

The Board does not dispute that Suburban Fair Housing, 
Inc.,was a realty corporation dedicated to ensuring that 
black persons have a full and equal opportunity to 
purchase homes of their choice, whatever the racial 
composition of the neighborhood. At page 23 of its Memo­
randum, the Board contests the fact that the rejection of 
Ms. Collins for participation in the Multiple Listing 
Service had a substantive debilitating effect on her 
business. What the Board ignores, however, is that the 
office of summary judgment is not to try issues of facts 
but to determine whether any exists.

The self-serving statements by members of the Board
which deny that the rejection of Suburban Fair Housing,
Inc., had nothing to do with its announced and
publicized policy of fair housing cannot aid the Board. 
Alexander v. Louisiana, supra; Turner v. Fouche. supra;
Sims v. Georgia, supra? Williams v. Matthews, supra.

- 4 1 -

9



Ms. Collins applied to defendant Board only after 
winning her case against the Main Line Board of Realtors.
As a result of her suit against the Main Line Board, that 
organization was ordered either to admit her as a member or 
admit her as a member in its Multiple Listing Service. The 
Main Line Board chose the latter route; had it admitted her 
to full membership, the Delaware County Board could not 
even pretend that her rejection was legitimate. However, 
the plain import of the decision in Ms. Collins' case against 
the Main Line Board was that she was entitled to full partici­
pation in the Multiple Listing Service. Indeed, she informed 
defendant Board that she was seeking admission either to the 
Board or, in the alternative, to the Board's Multiple Listing 
Service. The adament refusal of the Board in light of this 
sequence of events clearly raises an inference that its 
motives were predicated on other than on innocent motive.

In addition, plaintiffs maintain that the Board's rules, 
insofar as they operate to preclude fair housing realtors 
access to its Multiple Listing Service, runs afoul of the 
fair housing laws. As stated earlier, actions which have a 
discriminatory effect are prohibited. E . g ., Metropolitan 
Housing Development Corp. v. Village of Arlington Heights, 
supra; Williams v. Matthews, supra.

Finally, although the Board raises this issue for -the 
first time, this claim is not barred by the statute of 
limitations under 42 U.S.C. §§1981 and 1982. See Point VIII 
of this Memorandum.

- 4 2 -



■'' _. ■■ i■ V.* ■ •• / t

VIII. PLAINTIFF COLEMAN'S ACTION 
WAS TIMELY FILED.

In light of the decision of the Third Circuit in 
Meyers v. Pennypack Woods Home Ownership Association.supra. 
it is beyond dispute that plaintiff Coleman's action under 
42 U.S.C. §§1981 and 1982 is not time-barred. The facts 
which give rise to plaintiff Coleman's claim against 
defendant Spano Reakty fall within the six year statute of 
limitations which the Court of Appeals for the Third Circuit 
held to apply to causes of action under 42 U.S.C. §§1981 and 
1982 .

I \



IX. CONCLUSION

For the reasons stated above, the Motion of Defendant 
Board for Summary Judgment must be denied in all respects.
The Board ignores facts in Plaintiffs' Pre-Trial Statement 
and mistakes not only the legal standards for determining 
motions for summary judgment but also the principles of the 
Fair Housing Laws upon which Plaintiffs rely. The facts in 
Plaintiffs' Pre-Trial Statement evidence that the Board 
violated Plaintiffs' rights under the Fair Housing Laws and 
conspired with the named defendant realtors to do so. At the 
very least, genuine issues of material fact exist which pre­
clude summary disposition.

Respectfully submitted,

JACK GREENBERG 
BILL LANN LEE 
BETH J. LIEF 
Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

ROBERT L. ARCHIE, JR.
NOLAN N. ATKINSON, JR.
JACK M. MYERS
Atkinson, Myers, Archie & Wallace 
1500 Western Savings Bank Building 
1346 Chestnut Street 
Philadelphia, Pennsylvania 19107 
(215) 546-1630

Attorneys for Plaintiffs

44



jimuit tee

1. The predecessor of defendant Delaware County Board of 
Realtors actively opposed passage of a Pennsylvania Fair Housing 
Law in 1959.

2. - In 1966, defendant Delaware County Board of Realtors 
again actively opposed a federal fair housing bill.

Ĉ _
1. Prior*to 1975, members of defendant Delaware County 

Board of Realtors had been named as respondents and defendants
at the Pennsylvania Human Relations Commission and in federal 
court as engaging in practices of racial discrimination violative 
of the state and federal fair housing laws. The basis of many 
of these complaints was evidence gathered from testing, or 
auditing of member realtors. Many of these cases resulted in 
findings of probable cause, cease and desist orders, or consent 
decrees.

2. One- of the' ob j  ectives of defendant Board of 
Realtors is to further the interests of its members.

3. The Equal Opportunity Committee of defendant Board, 

which was and is comprised of member realtors, including W. Bruce 

Hudson and D. Louis Grady, met throughout 1973-1977 to discuss 
what it considered to be problems for its members.

4. The chairman of the Equal Opportunity Committee 
James J. Pace, considered testing to be a problem to the members 
of defendant Board of Realtors, and wanted to stop all testing 
of members.

5. In February, 1973, the Pennsylvania Human Relations 
Commission approached defendant Delaware County Board of Realtors 
and requested it to enter into a Memorandum of Understanding
like.that entered into with the Greater Pittsburgh Board of Realtors

E X H I B I T  B

- 4 9 -



6. In early 1975, negotiations began between the 
Pennsylvania Human Relations Commission and defendant Board of 
Realtors pertaining to the execution of a Memorandum of Under­
standing. The Equal Opportunity Committee acted on behalf of 
defendant Board of Realtors in these negotiations.

7. The discussions at meetings of the Equal Opportunity 
Committee and reports of that Committee to defendant Board of 
Realtors concerning the Memorandum of Understanding focus on the 
desire of the Board to have testing cease.

8. On or about January 21, 1975, the Equal Opportunity 
Committee asked the Pennsylvania Human Relations Commission to 
cease testing. When Mr. Vincent Rossi of the Commission announced 
that testing is temporarily cancelled, it appeared as if the 
signing of the Memorandum of Understanding was close at hand.

9. On March 4, 1975, during the meeting of the Equal
*

Opportunity Committee, during which Chairman Pace and W. Bruce 
Hudson, among others, were present testing was again discussed.
When the Board members learned that Raymond Cartwright of the 
Pennsylvania Human Relations Commission stated that testing will 
never be eliminated, the committee members agreed that same day 
that the Memorandum of Understanding was too burdensome.

10. On June 19, 1975, a meeting of the Equal Opportunity 
Committee was held, during which time the Memorandum of Under­
standing was discussed. The members of the committee discussed 
the fact that members of defendant Board of Realtors were being 
tested for racially discriminatory practices by the Pennsylvania 
Human Relations Commission. The members of the Committee discussed, 
as a means of stopping testing, that testing experiences be reported 
to state and federal legislators in order to exert pressure on the 
Commission.



11* At the meeting of the Equal Opportunity Committee 
on February 12, 1976, during which time D. Louis Grady and W. Bruce 
Hudson were present, Frank Capone, a member of the Board and the 
Committee, stated that the Board must know of future testing 

arrangements of the Pennsylvania Human Relations Commission. The 
Committee members agreed, and agreed to seek protection against 

complaints against its members in the Pennsylvania Human Relations 
Commission and/or brought by the United States Department of 
Justice. The Committee members also agreed to seek the dis­

continuance of actions currently pending against defendant Board 
members at the Commission, including two cases pending against 
defendant Bruce Hudson as a condition to Hudson's signing of the 
Memorandum of Understanding; and to secure from the Pennsylvania 
Human Relations Commission an agreement to this plan. One of 
the two cases pending against Hudson was filed as a result of 
testing by the Commission; one, as a result of testing by members 
of Lansdowne-Upper Darby Area Fair Housing Council. In both cases 
the Commission had made a finding of probable cause to believe 

racial discrimination had occurred and a public hearing was to 
be set.

12. On February 13, 1976, James Pace, as Chairman of 
defendants' Equal Opportunity Committee, wrote to Vincent Rossi, 
Housing Specialist, Pennsylvania Human Relations Commission to 
secure information as to how the signing of the Memorandum of 
Understanding will affect "matters that are now pending with the 
Human Relations Commission such as the Hudson matter to present 
testing procedures and protection against actions from the Justice 
Department."

13. Sometime between February 13, 1976 and April 14, 1976, 
James Pace, as Chairman of the Equal Opportunity Commission had a 
discussion with Mr. Rossi to seek the discontinuance of the cases 
against defendant Hudson.

\ ^51



14. On April 21, 1976, counsel for W. Bruce Hudson 
learned from the Pennsylvania Human Relations Commission that 
there was a "strong possibility" of the Commission’s case against 

Hudson being discontinued without a public hearing or an order
of any kind.

15. The Memorandum of Understanding was then executed 
on June 26, 1976, in a form substantially weaker than that signed 
by the Greater Pittsburgh Board of Realtors.

16. The cases against IV. Bruce Hudson, not only that 
brought by the Commission but also that brought by a member of 
plaintiff Lansdowne-Upper Darby Area Fair Housing Council, Inc. 
were discontinued.

17. Testing of members of defendant Board of Realtors 
by the Pennsylvania Human Relations Commission ceased after the 
execution of the Memorandum of Understanding.

18. In the November, 1976 edition of defendant Board 
of Realtors' magazine, The Delaware County Realtor, defendant 
published the Memorandum of Understanding. The only statement 
explaining the purpose of the Memorandum was:

All Realtor members entering into the 
"Memorandum of Understanding" below will enjoy 
the benefits of improved rapport with the 
Pennsylvania Human Relations Commission. For 
example, first offenders receive Board hearings 

- - and not commission hearings.

19. On April 21, 1977, Francis Mulcahy, a member of 
defendant Board of Realtors, moved to go on record with the United 
States. Department of Justice to stop testing. It was unanimously' 

passed by the Board of Realtors. Counsel Steven Smith stated
the Board of Realtors should proceed with caution. President 
of the Board, D. Louis Grady replied, You have heard the motion. 

The Board of Directors agreed that all defendant Board Committees 

mark together to achieve an end to testing.



ruAKU OF’DIRECTORS
Page ^ January 2 1, 1975

EfALTOR ASSOCIATE TvruTcToi,r _

SaSnesrJrMjgreDf e ^  f ° V l ^  »£Jrt addition*lNational Director He ported Lilliar ^ r d n e * .  Marie
Division. Marguer^r^Pennsylvania representing^ hf  been elected

. of fines for non-Jo™?* Wlthin 72 hours'^fter listiS1^ 10"2’ that listings 
harder. ^ U a n c e .  Put teeth in u w i t h  suggestion

ons* w°rk smarter not
TREASURER * S RFPnp*y _

bar ASSOCIATION . pv.i _ t 71.60. Accepted,

that i „ S  2 * \ thapart ° f  Realtors. A U  a™  £ 1 * attor"eys and

SaU^PPORTOMITT - a „  „ President.

^ ^ « s ” S « 5p? Ilsŷ  S f e i S f L ' S - " 8 plam,ed
of Memorandum of Understand! S terap?rarily cancelled. AwaitineePreSe"tative 
the memorandum. S ' Hls committee will meet Fridf, n  aiSysf
a g  L°TC LIATcnM .  chairman ,

upon.”® s S e ^ d ' We ' ^ “ e,"P^ 0J!e>' ^s c o r  S^hei ? * ^ ^ ' ’^ ” 8

Whereas, this Board of
Vhtious Boards of Alters t h r o ^ % “~ - -  * * " « « .  *om 

Pereas, the M L S p 1 Pennsylvania and,
Realtors aforesaid ^  f “  £  - - o .  Boards of

°f °ther S j ” s°fn^ r Board participate in the M.L.S. services

ot ̂ rReait„ ^ \ ĥ f t h “ t ; \ eiSs^ - -  °f e,ual and fair treatment

E X H I B I T  C



REALTOR®

R A L P H  M R O S E N B E R G E R

E X E C U T I V E  S E C R E T A R Y

1 0  E.  S p r o u l  R o a d  

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Kin g«woo d 3-3620

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C o m m i t t e e  a p p r o v e d  a  m o t i o n  t o  r e c o m m e n d  t h e  M e m o r a n d u m  o f  
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S o m e  o f  o u r  m e m b e r s  a r e  m u c h  c o n c e r n e d  a b o u t  w h a t  a f f e c t  t h i s  
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E X H I B I T  D