The opinion of the court was delivered by: Rambo, District Judge.
Before the court is defendants' motion for summary judgment,
plaintiff's response, and defendants' reply. Before addressing
the merits of defendants' motion, the court will set forth the
Defendants in this action served as members of the
Pennsylvania Real Estate Commission ("PREC") in 1988. One of
the duties of the PREC is to approve or disapprove applications
for real estate school directorships. On October 28, 1988,
plaintiff Robert A. Black submitted his application and
evidence of his credentials to the PREC in order to gain
approval as the director of a private real estate school,
Metropolitan Real Estate School.
Defendants L'Heureax, Levin, and Lamb were members of the
Commission's Education and Examination Committee at that time.
They reviewed plaintiff's application and denied him approval
as a school director. Plaintiff was notified of the denial by
letter dated November 10, 1988. On November 14, 1988, Mr. Black
wrote a letter to the PREC indicating his dissatisfaction
with their decision and requesting a conference for a
On December 6, 1988, plaintiff appeared before the entire
PREC, and outlined the reasons for his belief that he possessed
the necessary qualifications to be approved for the real estate
school directorship. At this point, defendants allege that the
Education and Examination Committee of the PREC reviewed and
discussed Mr. Black's application, along with his conference
comments, and decided that he did not possess sufficient
experience in educational supervision and administration to
warrant approval as a real estate school director. Plaintiff
alleges his application was never reevaluated after the
conference. However, both parties agree that Mr. Black was
informed by letter on December 14, 1988 that he would have to
take four credits worth of course work in the subject area of
educational supervision and administration if he wished to
qualify for the position of real estate school director.
Mr. Black has brought an action under 42 U.S.C. § 1983
against the then-members of the PREC. His action is premised on
the alleged violation of two constitutional rights: due process
and equal protection. Plaintiff first argues that defendants'
denial of his application for real estate school director was
arbitrary and capricious, and thereby violated his right to
substantive due process under the fourteenth amendment.
Plaintiff's second argument involves an allegation that the
PREC found two other applicants for directorships to be lacking
experience in the same subject areas as he, but they were
granted provisional approval for a specified period while they
completed the course work necessary for qualification.
Plaintiff argues that the unequal treatment inherent in
offering provisional approval to them but not to him violated
his fourteenth amendment right to equal protection.
A. The Standard for Summary Judgment.
The court will consider defendants' motion for summary
judgment under the accepted standards for the award of summary
judgment under Rule 56 of the Federal Rules of Civil Procedure.
The United States Court of Appeals for the Third Circuit has
recently summarized those standards in a concise and helpful
Summary judgment may be entered if "the pleadings,
depositions[s], answers to interrogatories, and
admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to
any material fact and that the moving party is
entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). An issue is "genuine" only if
the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Equimark
Comm. Finance Co. v. C.I.T. Financial Serv. Corp.,
812 F.2d 141, 144 (3d Cir. 1987). If evidence is
"merely colorable" or "not significantly probative"
summary judgment may be granted. Anderson, 106
S.Ct. at 2511; Equimark, 812 F.2d at 144. Where the
record, taken as a whole, could not "lead a
rational trier of fact to find for the nonmoving
party, summary judgment is proper." Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987). The
parties' burdens in summary judgment may be described in the
following way: once the moving party has shown an absence of
evidence to support the claims of the nonmoving party, the
nonmoving party must do more than simply sit back and rest on
the allegations in her complaint. She must "go beyond the
pleadings and by her own affidavits, or by the `depositions,
answers to interrogatories, and admissions on file,' designate
`specific facts showing that there is a genuine issue for
trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct.
2548, 2553, 91 L.Ed.2d 265 (1986). If the nonmovant bears the
burden of persuasion at trial,
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.
To establish a § 1983 claim, the plaintiff must establish (1)
the presence of conduct that was committed by a person acting
under color of state law and (2) that this conduct deprived her
of rights, privileges or immunities protected by the
Constitution or laws of the United States. Robb v. City of
Philadelphia, 733 F.2d 286, 290-91 (3d Cir. 1984). If
plaintiff's evidence in this case, as set out in the pleadings
and exhibits attached cannot establish these elements,
defendant's summary judgment motion will be granted.
B. The Relevant Statutes and Regulations.
The Pennsylvania Real Estate Licensing and Registration Act,
Pa.Stat.Ann. tit. 63, §§ 455.101-455.902 (1968 & 1991 Supp.),
is the statute which created the PREC, set forth a general
description of PREC duties, and set forth the specific
qualifications for licensing in the various real estate
occupations. Among the PREC's duties is the duty to approve the
establishment of private real estate schools, Pa.Stat.Ann. tit.
63, § 455.402 (1968 & 1991 Supp.). The Real Estate Licensing
Act gives the PREC the authority to promulgate rules and
regulations to effectuate the purposes of the Act. Pa.Stat.Ann.
tit. 63, ¶ 455.404 (1991).
With regard to real estate schools, the relevant provision of
the Act reads as follows:
Any school which shall offer or conduct any
course or courses of study in real estate shall
first obtain approval from, and thereafter abide
by the rules and regulations of the commission
covering such schools.*fn1
Pa.Stat.Ann. tit. 63, § 455.402 (1968 & 1991 Supp.).
Under the authority of the latter statute, the PREC has
enacted specific regulations concerning real estate school
directors. At the time plaintiff had his experience with the
PREC, the Commission was in the process of changing those
regulations. In November, 1988, new regulations had been
proposed but had not yet been approved. See 18 Pa. Bull. No.
37, Sept. 10, 1988, at 4104, 4118, 4123. The new regulations
were not approved until February, 1989. See, e.g., source notes
accompanying 49 Pa.Code § 35.342 (1989).
In the fall of 1988, the existing PREC regulations required
a school seeking PREC approval to present a candidate for
director that met the following qualifications:
(i) Be a qualified instructor in real estate.
(ii) Devote at least 1/2 of the school day to
performance of administrative or supervisory
duties or both.
(iii) File with the Commission three letters of
reference from previous employers setting forth
his previous experience in educational
administration and supervision, teaching and any
other activity related to education and indicate
the location and length of service for each.
49 Pa.Code § 35.145(1) (See 8 Pa. Bull. No. 36, Sept. 9, 1978,
In February, 1989, the PREC adopted its new regulation
regarding the approval of real estate school ...