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GEORGE E. SAXE ET AL. v. COMMONWEALTH PENNSYLVANIA (04/26/83)

decided: April 26, 1983.

GEORGE E. SAXE ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE ET AL., RESPONDENTS. ERNEST L. GERRISH, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE ET AL., RESPONDENT



Appeals from the Orders of the State Real Estate Commission in cases of In the Matter of the Suspension or Revocation of Real Estate License No. RS-018038-A, issued to Ernest L. Gerrish and In the Matter of the Suspension or Revocation of Real Estate License No. RM-022423-B, issued to George E. Saxe and In the Matter of the Suspension or Revocation of Real Estate License No. RB-022813-A, issued to Ed Saxe Real Estate, Inc., File No. 80-RE-785, dated December 21, 1981.

COUNSEL

Daniel W. Shoemaker, Shoemaker & Ness, for appellants, George E. Saxe and Ed Saxe Real Estate, Inc.

Richard K. Renn, for appellant, Ernest L. Gerrish.

Michael L. Solomon, with him, Mary S. Wyatte and David F. Phifer, Chief Counsel, for respondent, Department of State.

Joseph S. Rengert, Counsel, for respondent, State Real Estate Commission.

Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 73 Pa. Commw. Page 590]

The State Real Estate Commission imposed a one month's suspension of the real estate salesman's license of Ernest L. Gerrish, a one month's suspension of the real estate broker's license of George E. Saxe and a $500 fine upon Ed Saxe Real Estate Inc., a brokerage corporation owned by George E. Saxe. The three subjects of the Commission's order have appealed, contending that the evidence in the case does not support the Commission's findings of fact upon which it concluded that the appellants had committed violations of the statute regulating the conduct of their business.

In January 1980, Gerrish, working as a salesman for George E. Saxe and his corporation, received a copy of a letter from a Mrs. Walters sent to realtors in the vicinity of Gettysburg announcing that she and her husband were interested in selling their farm and that they would agree to an exclusive listing of the property only with a broker which offered a guaranteed purchase plan, described as an agreement made by the listing broker to purchase the listed property at a discount if it should be unable to sell it for the seller's listing price. George E. Saxe and his corporation

[ 73 Pa. Commw. Page 591]

    had until late 1979 their own guaranteed purchase plan called NOW but discontinued this when, in January 1980, they became associated as a so-called Member Broker with an enterprise called National Guaranteed Homes Corporation which was engaged in the business of funding purchases of properties placed by real estate brokers. This program had the name of Guaranteed Homes Today. Gerrish called on the Walters sometime in February and left brochures advertising both the Saxes' NOW and the Guaranteed Homes Today programs. The NOW brochure promised that "Ed Saxe Real Estate will buy your home NOW" and that of Guaranteed Homes Today promised that "if all agents . . . . fail to sell your home Guaranteed Homes buys it at a fair . . . price. . . ."

Gerrish told the Walters that a Veterans Administration (VA) appraisal would be required. On March 17, 1980, before the VA appraisal had been received, Gerrish met with Mr. and Mrs. Walters and the Walters signed an agreement giving the Saxes the exclusive listing of their property. At the same time and as part of the same transaction, the Walters signed an agreement on a form entitled "Guaranteed Plan or Trade-In-Plan (T.I.P.) Agreement." The other party to this agreement was "Guaranteed Homes Member Broker Ed Saxe Real Estate Inc." Gerrish signed for Ed Saxe Real Estate Inc. Paragraph 13 of the Guaranteed Plan agreement reads:

13. If after extended marketing efforts of Member and all other real estate agents, brokers, Realtors, salespersons or any attorney-at-law with clients combine and all fail to obtain any buyer with acceptable terms and conditions; shall this Agreement be exercised by Member of Guaranteed Homes. At such occurrence, seller(s) ...


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