Appeal from the Order of the State Real Estate Commission in the case of In the Matter of the Suspension or Revocation of Real Estate License, No. RB-026195-A, issued to Lawrence Jackson, October 5, 1973.
Robert Scandone, for petitioner.
Michael L. Solomon, Assistant Counsel, with him Joseph S. Rengert, Assistant Counsel, James J. Kutz, Assistant Counsel, and David F. Phifer, Chief Counsel, for respondent.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 72 Pa. Commw. Page 540]
Lawrence Jackson (petitioner) appeals here an order of the State Real Estate Commission (Commission) which revoked his license pursuant to Section 11(b) of the Real Estate Brokers License Act (Act), Act of May 1, 1929, P.L. 1216, as amended, 63 P.S. § 441(b), repealed by the Act of February 19, 1980, P.L. 15.*fn1 The petitioner had previously pleaded nolo contendere to aiding and abetting in the making of material false and fraudulent statements on a Veterans Administration application for a home loan guarantee. Under the Act's provision, the license shall be revoked when a copy of the criminal proceeding record is filed with the Commission.
Notice of the petitioner's nolo contendere plea was received by the Commission on May 11, 1978, yet it was not until December 15, 1980 that a citation and notice of hearing was issued. A hearing was subsequently held on March 9, 1981. It is the petitioner's contention here that the delay of over two years between the filing of the plea with the Commission and the notice of hearing gives rise to the defense of laches.
[ 72 Pa. Commw. Page 541]
Our scope of review in this matter is strictly defined. We are limited to a determination of whether or not the Commission abused its discretion, committed an error law, or made findings of fact not based upon substantial evidence. Harrington v. Department Page 541} of State, 58 Pa. Commonwealth Ct. 137, 427 A.2d 719 (1981).
It is clear that the defense of laches is available as a defense in an administrative disciplinary action. Id. However, it is equally clear that for the defense of laches to apply, more than mere passage of time must be shown. It is required that the person asserting the defense show harm or prejudice resulting from the delay. See Churchhill Area School District Appeal, 30 Pa. Commonwealth Ct. 413, 374 A.2d 1000 (1977). As an affirmative defense, the petitioner has the burden of proving the delay and the resultant prejudice. Harrington.
The petitioner argues that prejudice is found in that he relied on his counsel's advice that the nolo contendere plea would not effect his license and that inasmuch as the Commission did not act, he assumed the advice was correct. Had he notice of the proceedings before the Commission sooner, so the argument proceeds, he would have taken steps to withdraw the plea. The Board counters, however, that the petitioner did not place any evidence on the record that he would have taken the affirmative acts necessary to withdraw the plea, and in addition, the Commission argues that even if there was reliance on counsel, the petitioner should not be able to escape sanction solely because of improper legal advice. We agree with the Commission that the petitioner has not met his burden of proof on this issue and that the Commission would be remiss in its duty to protect the public if it were to dismiss the charges based on this showing alone. See also Ullo v. State Board of Nurse Examiners, 41 Pa. Commonwealth Ct. 204, 398 A.2d 764 (1979) (laches unavailable where the petitioner could not prove harm from a two-year delay in issuing the citation).
The petitioner argues next that because the Act requires the Commission to revoke ...