Concurring and Dissenting Opinion by
Judge Rogers:I respectfully dissent from the holding of the majority that the Human Relations Commission is not empowered to award compensatory damages to victims of illegal discrimination. Section 9 of the Pennsylvania Human Relations Act empowers the Commission upon a finding of an unlawful discriminatory practice to order the offender “to take such affirmative action including but not limited to hiring, reinstatement or upgrading of employes, with or without back pay, admission or restoration to membership in any respondent labor organization, or selling or leasing specified commercial housing upon such equal terms and conditions and with such equal facilities, services and privileges or lending money ... as, in the judgment of the Commission, will effectuate the purposes of this Act . . . .” Act of October 27, 1955, P. L. 744, 43 P.S. §959. The policy of the Commonwealth sought to be carried out by the Act is, inter alia, that of assuring “equal opportunities to all individuals and to safeguard their rights . . . to secure commercial housing regardless of race, color, religious creed, ancestry, sex, ... or national origin.” Section 2 of the Pennsylvania Human Relations Act, 43 P.S. §952.
I can conceive of no affirmative action which the Commission could order which would better effectuate the central purpose of the Act to end racial discrimination than that of directing the violator to pay damages to persons upon whom injuries have been inflicted. With the abandonment of the requirement of physical impact as a precondition to recovery for damages for emotional suffering by Niederman v. Brodsky, 436 Pa. *122401, 261 A. 2d 84 (1970), the concept of an award for such cause in human relations proceedings standing alone would not be unique. As for the contention that the Commission may make excessive, arbitrary or inconsistent orders in this regard, the same possibility exists with respect to jury verdicts. The simple answer is that such orders of the Commission would be subject to judicial review both as to the sufficiency of the evidence of mental suffering and as to the reasonableness of the amount awarded. In short, I believe that the Legislature has authorized orders of compensatory damages by conferring upon the Commission the power to order the taking of affirmative action to effectuate the purposes of the Act.1
The Supreme Court of Pennsylvania has twice instructed that the Commission has been invested with broad discretionary powers. It is my opinion that the award made in this case is consistent with the legislation so construed. Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A. 2d 290 (1967); Alto-Reste Park Cemetery Association v. Pennsylvania Human Relations Commission, 453 Pa. 124, 306 A. 2d 881 (1973).
In the instant case, however, as the majority observes, there is no evidence whatsoever of the effect of respondent’s conduct upon Sylvester Thornton. I agree, therefore, that the order with respect to the payment of damages to him is not supported by the record. I would affirm the order requiring the payment of the modest sum of Two Hundred and Fifty Dollars ($250.00) to Willis Thornton for the mental distress caused him by the respondent’s unlawful conduct.
Additional reasons for my conclusion are fully expressed and expounded in the court’s opinion in Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 301 A. 2d 754 (1973). The New Jersey statute is pertinently identical to the Pennsylvania Human Relations Act.