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FIBUS v. STATE REAL ESTATE COMMISSION (01/10/73)

decided: January 10, 1973.

FIBUS
v.
STATE REAL ESTATE COMMISSION



Appeal from the Order of the State Real Estate Commission in case of In Re: Complaint of Kathryn Duffy against Sam Fibus, No. 1791.

COUNSEL

John B. Nicklas, Jr., with him McCrady, Nicklas, McCrady & Maiello, for appellant.

Steven Kachmar, Assistant Attorney General, with him Lawrence Alexander, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 7 Pa. Commw. Page 75]

This is an appeal from an adjudication and order of the State Real Estate Commission (Commission) suspending, for a period of eleven months, the license of the appellant, Sam Fibus, to practice as a real estate broker.

On October 30, 1970, one Kathryn Duffy filed a complaint against appellant with the Commission. Appellant

[ 7 Pa. Commw. Page 76]

    was the owner of a certain piece of property located on 45th Street in the City of Pittsburgh. On May 28, 1968, appellant entered into a written agreement with Kathryn Duffy and her husband, who subsequently died before the complaint was filed, for the construction of a home on the 45th Street property. The agreed upon price was $15,000 which was changed on June 4, 1968 to $16,500 to provide for the addition of an air conditioning system, an electronic air cleaner and a humidifier. On June 5, 1968, a down payment of $3,000 was made by the Duffys to the appellant and, following Mr. Duffy's death on July 27, 1968, the appellant asked for and received from Kathryn Duffy an additional $1,500.

On October 23, 1968, appellant submitted to Mrs. Duffy a new agreement with similar terms to the original agreement of May 28, 1968, including provision that a general warranty deed be delivered for the property, and insisted that she sign this second agreement and that she sign certain construction loan mortgage papers. She refused to do so and subsequently requested the return of the $4,500 down payment since the house had not been built or the land deeded to her by the appellant. Appellant has made no refund of the money, and an investigation by the Commission failed to disclose that appellant had any escrow records relative to this transaction.

After the issuance of a citation, a hearing was held in accordance with Section 10(b) of the Real Estate Brokers License Act of May 1, 1929, P.L. 1216, as amended, 63 P.S. ยง 440(b). After finding that the procedural elements of due process had been met with respect to appellant's rights, the Commission made the following findings of fact:

". . .

"5. On June 5, 1968, the [appellant] promised to build a two-story building on a ...


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