Appeal from order of Superior Court affirming order of Court of Common Pleas of Dauphin County, Commonwealth Docket 1967, No. 190, in case of State Real Estate Commission v. Lenerte Roberts.
J. Leon Rabben, for appellant.
John P. Fernsler, Deputy Attorney General, with him William C. Sennett, Attorney General, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen joins in this dissenting opinion.
Appellant is a licensed real estate broker, having been so licensed since 1936. The facts in this case are as follows:
An investigator employed on behalf of the State Real Estate Commission was given an assignment to make a routine inspection of the appellant's real estate office with instructions to "pay special attention to the escrow account." Pursuant to this assignment, the investigator made four attempts to inspect the appellant's
office records but was not able to do so because appellant was absent on each occasion.
During these visits the investigator identified himself to appellant's secretary, declared the purpose of his visit, left a telephone number where he could be reached, and requested that the secretary relay this information to Mr. Roberts. The appellant never contacted the investigator. On a later visit the investigator spoke to the appellant's wife, again identified himself, stated his purpose and requested that appellant contact him so that an appointment could be made for an inspection. Again the appellant failed to respond. Finally, the investigator made his fifth visit. This time the appellant was present but refused to allow the investigator to make an inspection of his escrow account, stating that his attorney had "advised him there was nothing in the Real Estate Law or Act that compelled him to permit such an inspection by me or any one else, and on the basis of this he would not permit such an inspection."
Pursuant to this refusal, the commission, upon its own motion, issued a citation to the appellant charging, inter alia, that he violated Section 10(a)(11)(v) of the Real Estate Brokers License Act of May 1, 1929, P. L. 1216, as amended [63 P.S. 440(a)(11)(v)] by so refusing.
A hearing was held at which the investigator and the secretary of the commission were the only witnesses. The commission found, inter alia, that its investigator was refused permission by the appellant to inspect his escrow account and records and that such refusal constituted a violation of Subsection (11)(v) of Section 10(a) of the Real Estate Brokers License Act of 1929. The commission's order was appealed to the Court of Common Pleas of Dauphin County, which affirmed the commission and dismissed the appeal. An appeal to the Superior Court resulted in a per curiam affirmance of the Dauphin County Court, with Judge Hoffman filing
a dissenting opinion, in which Judges Spaulding and Cercone joined. We granted allocatur.
The appellant alleges that the commission violated his constitutional rights against self-incrimination and unreasonable searches and seizures. What is involved in actuality is the right of the commission to examine the appellant's records without subpoenaing those records, and whether the refusal of a licensee to allow an investigator of the commission to examine his escrow account, ...