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decided: October 20, 1983.


Appeal from the Order of the Pennsylvania State Real Estate Commission in the case of In the Matter of the Suspension or Revocation of Real Estate License Number RB-020107-A, issued to Richard M. Pastorius d/b/a Dick Pastorius Realty, dated December 21, 1981.


James N. Perich, for petitioner.

Michael L. Solomon, Counsel, with him Edward D. Frank, II Chief Counsel, and David F. Phifer, General Counsel, for respondent.

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

Author: Williams

[ 77 Pa. Commw. Page 643]

Richard M. Pastorius (Petitioner) appeals from the State Real Estate Commission's (Commission) adjudication and order revoking his real estate broker's licensing for violating myriad provisions of the Real Estate Brokers License Act (1929 Act) and the Real Estate Licensing and Registration Act (1980 Act).*fn1

The Commission's uncontroverted factual findings establish that in September 1978 Petitioner received a $500 earnest deposit check from a prospective purchaser. The down payment check, to be held in escrow pending consummation of a real estate transaction, was deposited in Petitioner's personal, rather than in a separate trust, account. Soon thereafter, the deal terminated, and, despite payor's repeated demands

[ 77 Pa. Commw. Page 644]

    for the return of his earnest deposit, the money was not refunded until two years later. In response to payor's complaints, a Commonwealth professional license inspector twice visited Petitioner's office in March and August 1980, to inspect escrow records. On both occasions Petitioner did not present such records for inspection. Further, Petitioner failed to submit his escrow records for review during an informal conference held on October 17, 1980, notwithstanding having received notice of the Commission's written demand for the records.

On March 26, 1981, the Commission issued Petitioner a citation and notice of hearing to show cause why his real estate license should not be suspended or revoked for numerous violations of the 1929 and 1980 Acts.*fn2 During the hearing held on June 19, 1981, Petitioner, unrepresented by counsel, admitted generally to having committed the offenses cited. The Commission, therefore, pursuant to Section 10(a) of the 1929 Act, 63 P.S. § 440(a) and Section 604 of the 1980 Act, 63 P.S. § 455.604, revoked Petitioner's real estate license, because of, inter alia, (1) Petitioner's commingling of the earnest money with his personal funds, and his subsequent failure to (2) return the down payment upon the termination of the real estate transaction; (3) maintain escrow records for inspection; and, (4) produce such records for the Commission's review. The appeal to this Court followed.

[ 77 Pa. Commw. Page 645]

Our scope of review of Commission decisions which revoke a real estate broker's license, is limited to determining whether the Commission abused its discretion, committed an error of law, or made findings of fact not based on substantial evidence. Schoenhut v. State Real Estate Commission, 71 Pa. Commonwealth Ct. 230, 455 A.2d 225 (1983).

The sole issue properly raised*fn3 by Petitioner is whether the license revocation penalty is too harsh and therefore an abuse of discretion of the Commission. In Forthuber v. City of Pittsburgh, 67 Pa. Commonwealth Ct. 627, 447 A.2d 1106 (1982), we stated that

[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence of record, discretion is abused.

Id. at 630-31, 447 A.2d at 1107. (Quoting from Mielcuszny v. Rosol, 317 Pa. 91, 93-84, 176 A. 236, 237 (1934)). While this Court is required to correct abuses of discretion in the manner or degree of penalties imposed, Mishkin v. State Real Estate Commission, 27 Pa. Commonwealth Ct. 17, 20, 365 A.2d 704, 706 (1976), we will not, absent a manifestly unreasonable exercise of judgment, substitute our discretion for that of the Commission, an administrative body endowed with expertise in matters subject to its jurisdiction.

[ 77 Pa. Commw. Page 646]

Id., see also, Forthuber, 67 Pa. Commonwealth Ct. at 631, 447 A.2d at 1107-08.

After carefully studying the record we find no impropriety in the penalty imposed sub judice. Accordingly, we affirm the adjudication and order of the Commission.


And Now, this 20th day of October, 1983, the order of the State Real Estate Commission in the above-captioned matter is affirmed.



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