Jones v. Commonwealth

407 A.2d 922, 47 Pa. Commw. 236, 1979 Pa. Commw. LEXIS 2174
Commonwealth Court of Pennsylvania·Decided November 8, 1979·No. Appeals, Nos. 1267 and 1296 C.D. 1978·Published·Cited by 11 cases

Opinion

Opinion by

Judge Mencer,

On May 2,1978, the State Real Estate Commission (Commission) revoked the real estate broker’s licenses of G. W. Jones (Jones) and Real Realty Company (Real) and the real estate salesman’s license of Chester C. Reefer (Reefer) employed by Real, for violating Section 10(a)(1) and (7) of the Real Estate Brokers License Act of 1929 (Act), Act of May 1,1929, P.L. 1216, as amended, 63 P.S. §440(a)(1), (7).1 The license holders have appealed to this Court, and their appeals have been consolidated for argument and disposition. We affirm the Commission’s findings of fact but modify the penalties imposed.

The facts as found by the Commission can be briefly stated. Pursuant to a complaint filed by Mr. and Mrs. Harry Blackwell, the Commission investigated the sale of a house at 506 West Burgess Street in Pittsburgh. Mrs. Beverly Gilmore, the owner, engaged Real to find a purchaser for her vacant residence. In May 1976, Reefer negotiated a sales agreement for the property with the Blackwells, and settlement was scheduled for August 17, 1976. Three weeks prior to [239]*239closing, Mr. Blackwell, accompanied by Reefer, inspected tbe property and found it to be in satisfactory condition. On August 16, 1976, Mr. Blackwell contacted Jones and Reefer to procure the key to the house and arrange for a presettlement inspection. Both failed to make arrangements for Mr. Blackwell to obtain the key so that he might conduct a presettlement inspection.

Closing took place as scheduled, but the purchase money remained in escrow pending the results of a termite inspection and a survey. The termite inspection ivas conducted subsequent to the closing on the afternoon of August 17, 1976. At that time, Reefer, who was present during the inspection, noticed that a pipe in the basement was cut and that a panel on the door from the kitchen to the basement was broken so that the door could not be securely locked. That evening, Mrs. Gilmore called Reefer and hysterically informed him that the basement of the home had been extensively vandalized.2 Reefer, after calming Mrs. Gilmore, called Jones and informed him of the developments. No further action was taken by Reefer with respect to the property or to contacting the Blackwells.

On August 18, 1976, without inspecting the property or calling the Blackwells, Jones obtained the release of the purchase money, the termite inspection and survey having been completed, and delivered the proceeds to Mrs. Gilmore. The Blackwells discovered the damage to the home upon taking possession of it that evening.

Based on these findings, the Commission adjudged Jones, Real, and Reefer guilty of a substantial misrepresentation for failing to disclose the damage to the [240]*240Blackwells and of bad faith for failing to provide Mr. Blackwell a further opportunity to inspect the property contemporaneous to settlement and for not informing him of the damage. In addition, the Commission found Jones and Reefer guilty of bad faith in the matter of submitting the documents for the purchase money without notifying the Blackwells of the vandalism.

All petitioners argue that the Commission’s findings are not supported by substantial evidence. This argument is without merit, as the findings accurately reflect the testimony of Mr. Blackwell and portions of Jones’ and Reefer’s own testimony. Petitioners’ chief complaint is that the Commission refused to find credible those portions of Jones’ and Reefer’s testimony which conflicted with Mr. Blackwell’s. It is axiomatic, however, that questions of credibility, the resolution of conflicting testimony, and the weight to be given to the evidence are for the Commission, not this Court. See Mishkin v. State Real Estate Commission, 27 Pa. Commonwealth Ct. 17, 365 A.2d 704 (1976); Benford v. Real Estate Commission, 8 Pa. Commonwealth Ct. 89, 300 A.2d 922 (1973); State Real Estate Commission v. Harris, 184 Pa. Superior Ct. 667, 136 A.2d 849 (1957).

Jones argues, however, that the Commission’s finding that Reefer had called him and informed him of the damage cannot stand because it is based solely upon Reefer’s self-serving testimony and it is the only material portion of his testimony that the Commission found credible. A factfinder may, however, “in lawful exercise of his broad discretion, accept or reject the testimony of any witness in whole or in part.” American Refrigerator Equipment Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 595, 377 A.2d 1007, 1010 (1977) (emphasis in original). In addition, although the testimony of an accomplice, absent corroboration, is to be strictly scruti[241]*241nized, see Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973), such testimony, if found credible, can by itself support a factfinder’s determination. See Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975); Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). Thus, the Commission could accept that aspect of Reefer’s testimony implicating Jones, while rejecting the balance of his testimony.

Petitioners next argue that, even if the Commission’s findings of fact are supported by substantial evidence, those findings do not support the Commission’s conclusions of law. We agree that the Commission erred in finding that petitioners knowingly made a substantial misrepresentation by failing to disclose the vandalism to the Blackwells. See Restatement (Second) of Torts §551 (1977).3 We do not mean to suggest, however, that real estate brokers and salesmen owe no duty of candor towards buyers and other [242]*242third parties outside of the normal seller/broker relationship. On the contrary, real estate brokers and salesmen may be held accountable in damages by third party purchasers for misrepresentation including the failure to disclose material information. See Shane v. Hoffmann, 277 Pa. Superior Ct. 176, 324 A.2d 532 (1974); cf. Young v. Department of Public Instruction, 105 Pa. Superior Ct. 153, 157, 160 A. 151, 153 (1932) (under the Act, a broker’s responsibility “for knowingly making any substantial misrepresentations is the same whether they be made to his principal or to any other person, if they are made in an attempt to effect a purchase or sale of real estate for another person.”). Here, however, without the presence in the record of the sales agreement or other evidence of the contractual relationship between the parties, we are unable to determine whether petitioners’ failure to disclose the damage induced the Blackwells to act or refrain from acting.

We do agree with the Commission, however, that petitioners’ failure to inform the Blackwells of the condition of the house does constitute bad faith, especially given the ease of notifying the Blackwells and petitioners’ haste to obtain the release of the purchase money.

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Jones v. Commonwealth, 407 A.2d 922, 47 Pa. Commw. 236, 1979 Pa. Commw. LEXIS 2174 (Pa. Ct. App. 1979).

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