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decided: October 3, 1984.


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 No. R.B.-005426-A, issued January 8, 1930, to Vincent E. Fumo.


Robert Scandone, for petitioner.

Joseph S. Rengert, Counsel, with him, James J. Kutz, Assistant Counsel, and David F. Phifer, Chief Counsel for respondent.

Judges MacPhail, Colins and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 85 Pa. Commw. Page 388]

Vincent E. Fumo (Petitioner) appeals here from an order of the State Real Estate Commission (Commission), dated March 17, 1981, which revoked his real estate salesman's license.

Petitioner had been licensed by the Commission since January 8, 1930. On June 28, 1976, Petitioner pleaded guilty in the United States District Court for the Eastern District of Pennsylvania to:

1) 28 counts of making false statements in connection with a savings and loan corporation acting under the laws of the United States in violation of Section 1006 of Title 18 U.S.C.;

2) 28 counts of misapplying funds of a savings and loan corporation acting under the laws of the United States in violation of Section 657 of Title 18 U.S.C.; and

3) 1 count of conspiring to commit an offense against the United States in violation of Section 371 of Title 18 U.S.C.

On September 21, 1979, more than three years later, the Commission issued a citation and notice of hearing. An evidentiary hearing was held on December 4, 1979 at which evidence of Petitioner's guilty plea was introduced. Based on this evidence, the Commission determined that Petitioner had violated Sections 10(a) and 11(b) of the Real Estate Brokers License Act of 1929, Act of May 1, 1929, P.L. 1216, as amended,*fn1 63

[ 85 Pa. Commw. Page 389]

P.S. ยงยง 440(a)*fn2 and 441(b),*fn3 and ordered that his real estate salesman's license be revoked.

[ 85 Pa. Commw. Page 390]

Our scope of review is limited to determining whether or not the Commission abused its discretion, committed an error of law, or made findings of fact not based upon substantial evidence. Jackson v. State Page 390} Real Estate Commission, 72 Pa. Commonwealth Ct. 558, 456 A.2d 1171 (1983).

Petitioner first contends that his guilty plea in 1976 does not bring him within the provisions of Section 11(b) of the Act inasmuch as that Section by its terms applies only to a guilty plea entered during the term of a license and Petitioner renewed his license in 1978. Petitioner argues instead that he is subject only to the provisions of Section 10(a) of the Act which, unlike Section 11(b), does not call for mandatory revocation of the license.*fn4

Petitioner attempts to equate the "renewal" of a license, which is accomplished by the payment of a biennial registration fee, with the issuance of a new license. We rejected this same argument in Ullo v. State Board of Nurse Examiners, 41 Pa. Commonwealth Ct. 204, 398 A.2d 764 (1979): a case in which the petitioner argued that the renewal of her nurse's license precluded the State Board of Nurse Examiners from acting on alleged violations which occurred prior to the renewal. The Court in Ullo stated:

[a]s the law presently exists, the purpose of renewing an applicant's license, upon submission to the Board of a completed application form and a required fee . . ., is merely to raise revenues and to keep a current listing of those authorized to practice nursing in this Commonwealth. It is not, as Petitioner suggests, a legislatively imposed statute of limitations requiring the Board to make an affirmative biennial determination of the qualifications of each nurse. Since this license renewal procedure is

[ 85 Pa. Commw. Page 391]

    ministerial in nature, the Board was not barred from acting as it did.

Id. at 208, 398 A.2d at 766-767. Based on this Court's reasoning in Ullo, we similarly reject Petitioner's argument here. Cf. Grasso v. State Real Estate Commission, 14 Pa. Commonwealth Ct. 196, 320 A.2d 912 (1974); Inverso v. State Real Estate Commission, 50 Pa. Commonwealth Ct. 554, 413 A.2d 450 (1980).

Petitioner next argues that the Commission is barred from revoking his license by reason of the doctrine of laches. Petitioner points to the Commission's three year delay in instituting revocation proceedings as well as the additional fifteen month delay in issuing its adjudication and order after these proceedings were initiated. While we certainly do not condone what appears to be an inordinate delay in instituting revocation proceedings, the issue of laches was not raised below. The proper forum in which to raise the defense of laches and prove delay with resultant prejudice was the hearing before the Commission. Inasmuch as Petitioner failed to do so, we will not address the issue for the first time on appeal.*fn5

We conclude therefore that the Commission's findings and conclusions are supported by the record evidence and that the Commission's order revoking Petitioner's real estate license was proper. Accordingly, the Commission's order is affirmed.


And Now, October 3, 1984, the order of the State Real Estate Commission, dated March 17, 1981, is affirmed.



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