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November 4, 1991


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 relevant facts.

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 reevaluation.

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 way:

  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,

  the party moving for summary judgment may meet its
  burden by showing that the evidentiary materials
  of record, if reduced

  to admissible evidence would be insufficient to
  carry the nonmovant's burden at trial.

Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987).

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:

Approval of schools.

    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, at 2628).

In February, 1989, the PREC adopted its new regulation regarding the approval of real estate school ...

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