Concurring Opinion by
Judge Mencer:I concur with the majority that the Pennsylvania Human Relations Commission (Commission) has failed to produce sufficient evidence in this record to meet its burden of proof. However, I am of the opinion that it did not even attempt to prove two of the necessary elements of the alleged violation.
In Tomlinson Agency v. Pennsylvania Human Relations Commission, 11 Pa. Commonwealth Ct. 227, 312 A. 2d 118 (1973), we held that the failure to advise a black person of the availability for rental of a one-level frame house was not, without additional supportive evidence, sufficient to sustain a finding by the Commission that a real estate rental agency had committed an affirmative act of discrimination.
*135Acknowledging the need for the Commission and its dedication to the elimination of discrimination in housing, we are nevertheless faced with individual cases wherein the Commission has the duty to prove by a preponderance of the evidence that the respondents have violated the Pennsylvania Human Relations Act, Act of October 27, 1955, P. L. 744, as amended (Act), 43 P.S. §951 et seq.
Here, as in Tomlinson, the Commission contends that, once it has presented evidence that the respondent failed to inform a black tester1 of the availability of an apartment and that there was no difference in the manner of inquiry by the white and black testers, it then becomes the obligation of the respondent to prove that an affirmative act of discrimination has not occurred. I view the Commission to be the party who has the burden of proving facts that will establish that the respondent has violated the Act’s provisions. Such a burden of proof does not shift nor does the respondent have the duty to prove that he has not violated the provisions of the Act.
We must carefully consider the factual situation that led to this appeal from an adjudication of the Commission which held that J. Howard Brandt, Incorporated, Delores Brandt, President, and J. Howard Brandt, Secretary-Treasurer (respondents), had committed an unlawful discriminatory practice in violation of Section 5(h) of the Act, 43 P.S. §955(h).
On February 3, 1972, Gerard Rugel, who is white, and Margaret Mitchell, who is black, both employes of the Commission, alternately entered the office of the respondents, seeking information about available rental property. Mr. Rugel made the initial inquiry and *136“asked for one or two bedroom apartments or houses.” He testified that he “didn’t give any specific area” and was offered “at the Penn Wynne, a three bedroom house” for a rental price of $300 per month. Mr. Rugel spoke to and received this information from a “young man, rather tall, [with] brown hair.”
Mr. Rugel then left respondents’ office and immediately informed Margaret Mitchell, who was seated in an automobile parked nearby, of what had happened and what he had been told. Approximately ten minutes thereafter Margaret Mitchell entered the office of the respondents and spoke to Delores Brandt. Mrs. Mitchell falsely told Mrs. Brandt that her husband was doing a “residency at Lankenau Hospital and we would be interested in an apartment, one, two, three bedroom apartment” or “a house in the general vicinity of Lankenau Hospital.” Mrs. Mitchell further testified that “she [Mrs. Brandt] was sorry there was nothing available and that she would take my name and phone number and get in touch with me as soon as possible, when something was available. I thanked her and left.”
There was also evidence in the record that would support the Commission’s eighth finding of fact which reads: “8. J. Howard Brandt Inc. lists all available rentals on a paper attached to a clipboard which is on top of a filing cabinet in their office. All employees of J. Howard Brandt Inc. have knowledge of and access to this clipboard so that if any rentals were available, each employee would be aware of them, or know where to find the information.”
The respondents and all of their employees testified that they had no recollection of Mr. Rugel’s and Mrs. Mitchell’s coming to the office of the respondents on February 3, 1972 and that, in fact, none of them had even seen these two Commission testers prior to June of 1972 when Mr. Rugel came to the office to discuss the events of February 3, 1972 with respondents.
*137Here respondents were charged with and held to be in violation of Section 5(h) (1) of the Act, 43 P.S. §955(h) (1), which provides:
“It shall be an unlawful discriminatory practice . . .:
“(h) For any person to:
“(1) Refuse to sell, lease, finance or otherwise to deny or withhold commercial housing from any person because of the race, color, religious creed, ancestry, sex or national origin of any prospective owner, occupant or user of such commercial housing, or to refuse to lease commercial housing to any person due to use of a guide dog because of the blindness of the user.”
In Tomlinson Agency v. Pennsylvania Human Relations Commission, supra, we recognized that this legislation was intended to prohibit the withholding of information on housing availability because of race and/or color. The withholding of such information is “to deny or withhold” under the provisions of Section 5(h)(1) of the Act. However, it is my view that for a violation of Section 5(h)(1) of the Act to be established, the Commission must prove four elements by a preponderance of the evidence. These four essential elements are that (1) commercial housing was available and (2) denied to a person (3) because of the race, color, religious creed, ancestry, sex or national origin of, or use of a guide dog because of blindness by, (4) any prospective owner, occupant or user of such commercial housing.
Here the record is completely void of any evidence as to the first element. It is unknown and impossible to determine from the record before us whether or not, at the time Margaret Mitchell inquired of respondents, there was any commercial housing available for renting.2
*138Likewise, of significance and importance here, all the evidence establishes that, as to the fourth element, Mr. Rugel and Mrs. Mitchell were not prospective owners, occupants or users of a three-bedroom house at Penn Wynne but were admittedly testers of the Commission, not interested in renting from the respondents but solely seeking evidence of unlawful discriminatory practices.
The Commission’s testing program has an immediate appeal since it is likely that those persons actually seeking commercial housing would be dealt with in the same manner as the Commission’s testers. In addition, the task of proving discrimination is often a formidable one, more dependent on circumstantial evidence than direct and positive evidence. However, as to violations of Section 5(h) (1) of the Act, the usual sequence would be that of (1) a prospective user of available commercial housing who is improperly denied (2) making his denial known to the Commission, (3) followed by an investigation and the accumulation of evidence (4) to support the filing of a complaint3 and (5) a hearing at which the four elements that make up the violation under Section 5(h)(1) of *139the Act would be established by a preponderance of the evidence.4
The Commission’s simplistic approach — merely showing that two testers received different information, concluding that it then becomes the respondents’ burden to prove that an affirmative act of discrimination has not occurred, and, upon failure of the respondents to carry such a burden, making an adjudication that it conclusively follows that respondents have committed a violation of the Act in regard to an unlawful discriminatory practice — is not, in my view, legally sufficient. Such an adjudication is not supported by substantial evidence.
What we said in Tomlinson is apropos here: “We are aware of the Commission’s proper objectives in eagerly pursuing those who practice discrimination through the subtle means of withholding information on available housing from prospective minority tenants. But it is our duty in reviewing the evidence to carefully examine it lest the Commission’s zeal results in legally unfounded inferences and conclusions, to the pain and sacrifice of those so accused.” 11 Pa. Commonwealth Ct. at 231, 312 A. 2d at 120-21.
I can only conclude that, although the Commission’s motives here were indeed high ones, the evidence in this record will support neither the necessary findings of a discriminatory practice basic to the charge of the complaint nor the ultimate conclusion of a violation of the Act.5
Two employes of the Commission, one white and the other black, alternately enter rental agencies to determine, or test, whether like information is afforded white and minority applicants.
Tlie Commission made a part of its sixth finding of fact that Mrs. Brandt informed Margaret Mitchell that there was *138nothing available for rent at that time. However, there is nothing in the record to establish the falsehood of such a statement. It is the fact of availability at that time, not an assertion of availability at an earlier time to someone other than Mrs. Mitchell, that must be established. See Elgart v. Pennsylvania Human Relations Commission, 4 Pa. Commonwealth Ct. 616, 287 A. 2d 887 (1972).
Section 7(f) of the Act, 43 P.S. §957(f), specifically provides the Commission with the power “[t]o initiate . . . complaints charging unlawful discriminatory practices.” This power given to the Commission does not eliminate the need to establish all elements of the alleged violation by a preponderance of the evidence at a hearing. The initiating of complaints by the Commission for a violation of Section 5(h) (1) of the Act clearly is predicated on a factual determination that a prospective user was improperly denied commercial housing.
See Section 9 of the Act, 43 P.S. §959, for procedure.
Accord, St. Andrews Development Co. Inc. v. Pennsylvania Human Relations Commission, 10 Pa. Commonwealth Ct. 123, 308 A. 2d 623 (1973); Marhoefer v. Human Relations Commission, 4 Pa. Commonwealth Ct. 242, 285 A. 2d 547 (1971); Pennsylvania Human Relations Commission v. Altman, 87 Dauph. 227, 42 Pa. D. & C. 2d 317 (1967).