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EDWARD F. DOUGHERTY v. COMMONWEALTH PENNSYLVANIA (07/31/86)

decided: July 31, 1986.

EDWARD F. DOUGHERTY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE REAL ESTATE COMMISSION, RESPONDENT



Appeal from the Order of the State Real Estate Commission, in case of In The Matter of Real Estate Broker's License No. RB-020493-B, Issued to Edward F. Dougherty, and Real Estate Salesperson's License No. RS-070696-A, Issued to John McNamara, Jr.

COUNSEL

Marjorie C. Lawrence, with her, Fred J. Silverman, Silverman and Lawrence, for petitioner.

Steven Wennberg, Assistant Counsel, with him, Joyce McKeever, Chief Counsel, Professional and Occupational Affairs, and David F. Phifer, Chief Counsel, Department of State.

Judge MacPhail, Senior Judges Rogers and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 99 Pa. Commw. Page 398]

Edward F. Dougherty (Dougherty) petitions for review of an order of the Pennsylvania State Real Estate Commission (Commission) suspending his real estate broker's license for a period of one year for violations of the Real Estate Licensing and Registration Act (Act), Act of February 19, 1980, P.L. 15, as amended, 63 P.S. §§ 455.101 -- 455.902. We will affirm.

Dougherty is the sole proprietor of Edward F. Dougherty Realtors (realty company). John McNamara, Jr. was employed by the realty company as a licensed salesperson. Michael and Donna Orzechowski (Purchasers) contacted McNamara for the purpose of purchasing a home offered for sale by the Veterans Administration (VA). They found one that they liked on Vista Street in Philadelphia and the Purchasers entered into the standard VA "Credit Statement of Prospective Purchaser and Contract of Sale" (contract). That contract provided, inter alia, that the home was being sold "as is" and with no VA warranties, express or implied. McNamara did not give the Purchasers an opportunity to read the contract but instead explained to the Purchasers what was in the contract. He specifically omitted any mention of the fact that the home was being sold "as is".

After the VA rejected that offer, McNamara showed the Purchasers a home on Wyndom Road, also in Philadelphia, offered by the VA. Although this home was also

[ 99 Pa. Commw. Page 399]

    being sold "as is", McNamara represented to the Purchasers that the VA had guaranteed the roof, electrical wiring, plumbing and heating. The Purchasers made an offer on the home but did not sign the standard contract. The VA accepted this offer, and settlement occurred on June 24, 1980.

Two weeks after they moved in, there was a severe storm and the Purchasers noticed water stains in the house. The Purchasers contacted a roofer, and his examination revealed that the roof was seventeen or eighteen years old and in need of replacement. The Purchasers promptly notified the VA and inquired about the roof warranty. The Purchasers were then informed, for the first time, that the house had been sold with no warranties.

The VA files contained a contract for the Wyndom Road property dated May 12, 1980 containing the alleged signatures of the Purchasers. The contract was purportedly signed by Dougherty, although Dougherty testified that he did not sign his name to the contract of sale and that the handwriting appeared to be that of McNamara, who had the authority to sign Dougherty's name in emergencies. The file also included a letter dated May 23, 1980, typed on the realty company's stationery which stated that the Purchasers inspected the house on Wyndom Road and "agree to accept it in its present condition". The letter also stated that the Purchasers are "fully aware that the Veterans Administration will make no repairs of any kind before or after settlement." The signatures on both the May 12, 1980 contract and May 23, 1980 letter were forged.

The Commission issued a Citation and Notice of Hearing against both Dougherty and McNamara, and after a hearing, found McNamara in violation of Section 604(a)(1) of the Act, 63 P.S. § 455.604(a)(1) (substantial ...


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