Dissenting Opinion
by Judge Mencer:I respectfully dissent.
My reading of the record does not satisfy me that the Human Relations Commission’s (Commission) crucial finding of fact No. 13 is supported by substantial evidence. Respondent, contrary to the finding, did offer an “acceptable explanation for the disparity in treatment between these males and the complainant.”
The record discloses that Lendell Gerber had an accident on February 18, 1969, and at that time Beverage Transportation, Inc. (Beverage) was insured not by respondent but by Pennsylvania National Insurance, and there was no evidence that respondent was aware of this accident. On June 3, 1970, Ron Shiley had an accident involving only Beverage’s collision insurance, which policy was issued by American Fidelity First Insurance Company, and there was no evidence that respondent was aware of this accident. James Kennedy, when 24 years and 11 months of age and while driving for Beverage, was involved in an accident during March of 1971. There was no evidence that the age of this driver was called to the attention of respondent since his 25th birthday was on April 20, 1971.
*57I conclude that this record supports only the conclusion that the decision to exclude the complainant from insurance coverage was based upon legitimate criteria designed to eliminate high-risk drivers under the age of 25 rather than upon a basis of her sex.
Therefore, it follows that I would dissent from the Commission’s order that respondent pay complainant $12,147.03 as damages. In addition, I hold the view that Section 9 of the Pennsylvania Human Relations Act, Act of October 27, 1955, P. L. 744, as amended, 43 P.S. §959 (Supp. 1974-75) ,1 does not permit the award of loss of earnings to one not in the employment of the respondent.
. Section 9 provides in pertinent part:
“If, upon all the evidence at the hearing, the Commission shall find that a respondent has engaged in or is engaging in any unlawful discriminatory practice as defined in this act, the Commission shall state its findings of fact, and shall issue . . . an order requiring such respondent to cease and desist from such unlawful discriminatory practice and to take such affirmative action including but not limited to hiring, reinstatement or upgrading of employes, with or without back pay ... as, in the judgment of the Commission, will effectuate the purposes of this act . . . .”