Keeley v. Commonwealth, State Real Estate Commission

501 A.2d 1155, 93 Pa. Commw. 291, 1985 Pa. Commw. LEXIS 1415
CourtCommonwealth Court of Pennsylvania
DecidedDecember 4, 1985
DocketAppeal, No. 2106 C.D. 1984
StatusPublished
Cited by20 cases

This text of 501 A.2d 1155 (Keeley v. Commonwealth, State Real Estate Commission) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keeley v. Commonwealth, State Real Estate Commission, 501 A.2d 1155, 93 Pa. Commw. 291, 1985 Pa. Commw. LEXIS 1415 (Pa. Ct. App. 1985).

Opinion

Opinion by

Senior Judge Barbieri,

• James W. Keeley,. Jr., petitions for review of an order of the State Real Estate Commission (Commission) which denied his petition for reinstatement of his reáí estate broker’s license. That broker’s license was. previously revoked by the Commission for violations of the Real Estate Licensing and Registration [293]*293Act (Act),' Act of February 19, 1980, P.L/ 15, as amended, 63 P.S. §§455.101-455.902. We affirm. ■

Tbe following facts are pertinent. Keeley had formerly been issued a real estate broker’s license by the Commission.; Following a hearing, the Commission, issued an adjudication on-September 20, 1982 in which, it found that he had violated Sections 604(1), (2), (15) & (20)' of the Act, -63 P.S. §§455.604(1), (2), (-15) & (20), by having violated escrow obligations; engaged in conduct which demonstrated bad faith, dishonesty and untrustworthiness; and made substantial' misrepresentations and false promises in- order to .'induce a- person to enter into a contract. As part of that adjudication, the Commission revoked Keeley’s broker’s -license as well as the license held by a corporation for -which he was the broker -of record.- No appeal was ever .taken from the Commission’s .September'20, 1982 adjudication. On April 9,1984,- Keeley filed a petition with the Commission seeking-.the rein-; statement of his broker’s license. In- that -petition, he averred that- he had rehabilitated himself,' had repaid the losses occasioned by his violation of - his. escrow obligation, and was now suitable, for licensure as a real estate broker. The Commission did not hold any hearings on Keeley’s petition, nor-did it take any evidence but proceeded to issue -an order on June 20, 1984 which denied his petition. A timely appeal to this Court followed.

In this appeal, Keeley contends that (1) .the Commission violated his procedural due process rights' as guaranteed by the Fourteenth Amendment when-' it defied Ms reinstatement-petition, without, affording him prior notice and an opportunity to be heard;' and. (2) that-the Commission’s order denying his - reinstatement petition is inadequate as a-matter.of law in that it. does.-mot contain .any findings of fact nor conclu[294]*294sions of law and is, therefore, invalid. We shall address these issues seriatim.

Keeley first argues that he is entitled to both advance notice and an opportunity to be heard and present evidence before the Commission can take final action on his petition for reinstatement of his real estate broker’s license. By failing to afford him notice and an opportunity to be heard, he contends that the Commission violated his right to procedural due process guaranteed by the Fourteenth Amendment to the Federal Constitution.

' A due process analysis is a two-staged process; first there must be a determination of whether a constitutionally protected property or liberty interest is implicated, and, if so, then assessing the appropriate procedural protection due. Neal v. Secretary of the Navy, 472 F. Supp. 763 (E.D. Pa. 1979), rev’d on other grounds, 639 F.2d 1029 (3d Cir. 1981). Naturally, before one is entitled to procedural due process, one must possess an identifiable property right or liberty interest. Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District, 76 Pa. Commonwealth Ct. 65, 463 A.2d 1198 (1983). To have a property interest in a benefit or privilege that is protected by procedural due process, one must clearly have more than an abstract need or desire for it or an unilateral expectation of it, rather, he must have a legitimate claim of entitlement to it. Robb v. City of Philadelphia, 733 F.2d 286 (3d Cir. 1984); Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977). While property interests are recognized and protected by the Federal Constitution, they are not created thereby, rather, they are created and their dimensions are defined by existing rules or understandings that stem from independent sources such as state law and a state may, consistent with due pro[295]*295cess, define or create property interests as it sees fit. ARA Services, Inc. v. School District of Philadelphia, 590 F. Supp. 622 (E.D. Pa. 1984). Therefore, if Keeley had a constitutionally protected property interest in the reinstatement of his revoked broker’s license, that interest must stem from state law.

Our examination of the Act convinces us that the former holder of a revoked real estate license retains no property interest in that license once it has been revoked by the Commission through a procedure consistent with due process. As noted by both Keeley and the Commission, the Act in effect at the time of Keeley’s petition for reinstatement contained no- specific provision which addressed the Commission’s power to reinstate revoked licenses. We do note, however, that the G-eneral Assembly had addressed this precise issue by amending the Act to add Section 501(c), 63 P.S. 4455.501(c), which provides that:

(c) Unless ordered to do so by Commonwealth Court, the commission shall not reinstate the license, within five years of the date of revocation, of any person whose license has been revoked under this act. Any person whose license has been revoked may reapply for a license at the end of the five-year period but must meet all of the licensing qualifications of this act for the license applied for, to include the examination requirement.

This amendment was enacted by the G-eneral Assembly and signed by the Governor on March 29,1984, ten days prior to Keeley’s petition, but did not become effective until ninety days thereafter. Accordingly, this amendment is not applicable to our disposition of the instant case which the Commission concedes affects substantive rights and is not merely procedural. We conclude that under the Act, prior to the [296]*2961984 amendment, former licensees did not possess any property right in their revoked licenses.

We initially note that the United States Supreme Court has long recognized the right of the states to regulate and license occupations and professions in such a manner so as to safeguard the interest of the public. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955). The law has also long recognized that once a license has been obtained to engage in an occupation, the licensee obtains a protected property interest in the continuation of that license which can not be revoked without affording the licensee procedural due process. See, e.g., Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117 (1926) (accountant’s admission to practice before the Board of Tax Appeals, now the U.S. Tax Court); Ex parte Robinson, 84 U.S. (17 Wall.) 505 (1874) (attorney’s admission-' to practice). However, once that license has been revoked through a procedure consistent with the individual’s due process guarantees, that individual is stripped of whatever property interest he possessed in the license. See Counts v.

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Bluebook (online)
501 A.2d 1155, 93 Pa. Commw. 291, 1985 Pa. Commw. LEXIS 1415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keeley-v-commonwealth-state-real-estate-commission-pacommwct-1985.