Commonwealth Court Cases - Commonwealth Court Case Law from PA - Pennsylvania Commonwealth Court

Microsoft Word - 1211CD04.doc

	ROMINGER LEGAL
		Pennsylvania Court Cases and Opinions - PA Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE

MOST CURRENT PENNSYLVANIA SUPERIOR COURT CASES

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kim Nelson,
:

:
Petitioner :

:
v.

:
No.
1211
C.D.
2004

:
State Board of Auctioneer Examiners, : Argued: March 1, 2005

:
Respondent
:
BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE
RENÉE
COHN
JUBELIRER,
Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER

FILED: April 26, 2005

Kim Nelson (Petitioner) appeals from the Order of the State Board of
Auctioneer Examiners (Board) denying his application for an auctioneer license.
Petitioner argues on appeal that the Board erred or abused its discretion by basing
its decision on his past criminal history and failing to consider his mitigating
evidence.

Petitioner filed an application with the Board on or about April 4, 2003,
seeking an auctioneer license.1 In response to an application question asking

1 Petitioner indicated that he was a graduate of the auctioneer program at Harrisburg Area
Community College (R. Ex. B-1, Tr. Harrisburg Area Community College) and had received

whether he had been "convicted, found guilty or ... received probation without
verdict as to any felony or misdemeanor, including any drug law violations,"
Petitioner answered "yes." (R. Ex. B-1, Application for auctioneer license,
question 5.) Because of this response, Petitioner was required to submit certified
copies of court documents with his application. Those court documents indicated
that Petitioner had been convicted 28 times and entered 17 guilty pleas on various
charges and numerous incarcerations, spanning the period from 1970 1991.
Petitioner's criminal acts included: 6 involving firearms, offensive weapons or
instruments of crime; 10 involving receipt of stolen property; 3 involving larcenies;
2 involving forgeries; 3 involving bad checks; 1 criminal attempt; 1 involving
burglary; 1 involving driving under the influence; 15 involving theft; 1 involving
drugs; and, 2 involving the operation of a motor vehicle without consent of owner.
Petitioner's criminal history also indicated his prior use of 4 different aliases and 8
dates of birth and social security numbers. (R. Ex. B-1, Criminal History Record.)

By letter dated July 16, 2003, the Board provisionally denied2 Petitioner's
application based upon Section 3(c) of the Auctioneer and Action Licensing Act,
Act of December 22, 1983 (Act), P.L. 327, 63 P.S. § 734.3(c), which provides:

Licenses shall be granted only to persons who have a good reputation
for honesty, truthfulness, integrity and competence to transact the
business of auctioneer or apprentice auctioneer in a manner as to
safeguard the interest of the public and only after satisfactory proof of

notice on March 28, 2003, that he had passed the auctioneer licensing examination. (R. Ex. B-1,
Auctioneer Score Notice.)
2 The Board's denial is considered "provisional" because the applicant is given thirty
days from the date of the denial letter to appeal the Board's determination before it becomes
final. (See R. Ex. B-3, Board Letter dated 7/16/03 at 2.)

2

these qualifications has been presented to the board as required by
regulation.

In its denial, the Board noted that Petitioner had been convicted of numerous
crimes involving dishonesty, and that the conduct underlying those convictions
was incompatible with the clear requirements of Section 3(c). The Board informed
Petitioner of his right to appeal its decision. Petitioner timely appealed and the
Board conducted a formal hearing at which he appeared pro se. He did not dispute
his criminal history, but explained that his convictions were the result, in large
part, of his past heroin addiction. He presented no witnesses, and submitted one
character reference letter to the Board.3 On May 12, 2004, the Board issued a Final
Adjudication and Order denying Petitioner's application for an auctioneer license.
It noted:

Applicant's primary argument that the Board should grant him
a license, is that he has a clean record since 1991, has run several
businesses, obtained his GED, is a member of a religious faith
community and wishes to move forward in his career.

Auctioneers must possess a character of honesty and integrity
because they often are in responsible charge of other people's money

3 The letter admitted by the Board was written by Anthony H. Williams, State Senator
from the 8th District of Pennsylvania, and was dated May 22, 2003. It stated, in pertinent part,
that "Mr. Nelson attests that he has suffered no infractions in the past 12 years to his record.
Therefore I support his effort to obtain a license in this field." (R. Ex. B-2.)

In his brief, Petitioner states that he submitted another character reference letter to the
Board, written by the Honorable Charles P. Mirarchi, when the judge was on the bench with the
Common Pleas Court in Philadelphia. (Pet'r. Br. at 5; Tr. of Hr'g 11/17/03 at 24) (Judge
Mirarchi also served as a Senior Judge with the Commonwealth Court of Pennsylvania). In
addition, Petitioner quotes Judge Mirarchi's letter on page 9 of his brief. However, Petitioner did
not present a copy of such letter at the hearing, stating that he "didn't know if it would be
necessary." (Tr. of Hr'g 11/17/03, at 24.) The Board allowed Petitioner 30 days in which to
submit a copy of Judge Mirarchi's letter (Tr. of Hr'g 11/17/03, at 25-26, 50); however, there is
no copy in the record certified to this Court.

3

and property. Further, it is essential to the profession that the public
have confidence that auctions are conducted fairly and above board.
It would create an undue risk to the public and the profession to issue
Applicant a license. The Applicant's extensive criminal history
spanning more than 20 years is not indicative of an individual with a
good reputation for honesty, truthfulness and integrity.

(Board's Adjudication, Discussion at 5.) Petitioner now appeals to this Court.

This Court's review of an agency's decision is limited to determining
whether constitutional rights were violated, an error of law was committed, or
whether necessary findings of fact are supported by substantial evidence. 2 Pa.
C.S. § 704; Bunch v. State Bd. of Auctioneer Examiners, 620 A.2d 578 (Pa.
Cmwlth. 1993), petition for allowance of appeal denied, 537 Pa. 635, 642 A.2d 488
(1994). In addition, our review over agency acts involving discretion is highly
circumscribed. As our Supreme Court stated in the seminal case of Blumenschein
v. Housing Authority of Pittsburgh, 379 Pa. 566, 572-73, 109 A.2d 331, 334-35
(1954):

By a host of authorities in our own and other jurisdictions it has been
established as an elementary principle of law that courts will not
review the actions of governmental bodies or administrative tribunals
involving acts of discretion, in the absence of bad faith, fraud,
capricious action or abuse of power; they will not inquire into the
wisdom of such actions or into the details of the manner adopted to
carry them into execution. It is true that the mere possession of
discretionary power by an administrative body does not make it
wholly immune from judicial review, but the scope of that review is
limited to the determination of whether there has been a manifest and
flagrant abuse of discretion or a purely arbitrary execution of the
agency's duties or functions. That the court might have a different
opinion or judgment in regard to the action of the agency is not a
sufficient ground for interference; judicial discretion may not be
substituted for administrative discretion.
(Emphasis in original) (footnotes omitted).

4

Petitioner first contends that the Board, in applying Section 3(c) of the Act,
erred or abused its discretion when it considered solely his criminal convictions "to
the exclusion of all other competent and undisputed evidence" which shows that he
has demonstrated a commitment to "honesty, truthfulness, and integrity." (Pet'r
Br. at 15)(emphasis in original.) Petitioner argues that the Board must assign an
appropriate weight to criminal convictions occurring more than 10 years prior to an
application. The Board counters that it must give due weight to crimes indicative
of dishonesty because it is charged with safeguarding the interests of the public and
the standards of the auctioneering profession. The Board contends that such
considerations outweigh any mitigating effect from Petitioner's testimony. (Bd.
Br. at 4.)

Pursuant to Section 3(c) of the Act, the Board can issue licenses only to
those applicants who meet the qualifications set forth therein. Quinn v. Bureau of
Professional & Occupational Affairs, 650 A.2d 1182, 1185 (Pa. Cmwlth. 1994),
petition for allowance of appeal denied, 541 Pa. 646, 663 A.2d 697 (1995). In
deciding whether an applicant meets the requirements of Section 3(c), the Board
must interpret that Section of the statute. It is a long-standing principle of law that
an administrative agency's interpretation of a statute for which it has enforcement
responsibility is entitled to great deference and should not be reversed unless
clearly erroneous. Kahn v. State Bd. of Auctioneer Examiners, 785 A.2d 512, 516
n.3 (Pa. Cmwlth. 2001)(citing Alpha Auto Sales, Inc. v. Bureau of Professional
and Occupational Affairs, 537 Pa. 353, 644 A.2d 153 (1994)), affirmed, 577 Pa.

5

166, 842 A.2d 936 (2004). Our Supreme Court has recognized the special skills
and expertise possessed by members of various administrative agencies:4

One of the purposes which lead to the creation of such boards is to
have decisions based upon evidential facts under the particular statute
made by experienced officials with an adequate appreciation of the
complexities of the subject which is entrusted to their administration
....

Pennsylvania Labor Relation Board v. Sand's Restaurant Corp., 429 Pa. 479, 486,
240 A.2d 801, 805 (1968).

The weight the Board assigns to evidence offered to mitigate the severity of
the outcome is a matter within its discretion. Burnworth v. State Bd. of Vehicle
Manufacturers, Dealers and Salespersons, 589 A.2d 294, 297 (Pa. Cmwlth. 1991).
Although the nature of the profession differs from that in the case at bar, the
reasoning applied in the Burnworth case is instructive:

Due to the nature [of the profession involved], the public must place a
significant degree of trust in the persons licensed to operate such
businesses.... [I]t is reasonable to expect that persons engaged in
such activity possess a reasonable level of integrity and honesty. The
Board, mindful of its obligation to protect the public, chose to give
greater weight to the seriousness of [Petitioner's] convictions than to
the mitigating evidence offered on his behalf.

4 Section 31 of the Act provides that the State Board of Auctioneer Examiners be
comprised of: the Commissioner of Professional and Occupational Affairs, the Director of the
Bureau of Consumer Protection in the Office of the Attorney General, or his designee, two
members appointed by the Governor on advice and consent of the Senate, representing the public
at large, and five members appointed by the Governor on advice and consent of the Senate, who
are licensed auctioneers, have been licensed for ten or more years, and have conducted 50 or
more auctions a year. 63 P.S. § 734.31(a).

6

589 A.2d at 297 (footnote omitted). We agree with the Board when it states that
"an applicant for a license to practice auctioneering who ha[s] engaged in crimes of
dishonesty d[oes] not have the requisite reputation for honesty, truthfulness and
integrity which is a necessary qualification to practice auctioneering." (Bd. Br. at
6.) These character traits are requisites for the grant of an auctioneer's license
because, as the Board explained, auctioneers are "often in responsible charge of
other people's money and property" and it is "essential to the profession that the
public have confidence that auctions are conducted fairly and above board." (Bd.
Adjudication at 5.)

Petitioner also contends that the Board failed to consider the content of his
character reference letters. However, merely because the Board did not find the
one letter of record persuasive, does not mean it abused its discretion. More
substantial reputation evidence was also rejected by the Board in Pook v. State
Board of Auctioneer Examiners, 735 A.2d 134 (Pa. Cmwlth. 1999)(affirming
Board's conclusion that seriousness of petitioner's prior conviction for felony bid-
pooling outweighed character evidence provided, which included seven letters of
reference, both personal and professional, from prior ten years). Here, the Board
recounted Petitioner's mitigating factors but, given his long criminal history, did
not conclude that issuance of a license was in the public's best interest.

Petitioner further argues on appeal that the Board erred or abused its
discretion in denying his application for an auctioneer license when it failed to
apply the principles and policies articulated in Secretary of Revenue v. John's
Vending Corp., 453 Pa. 488, 309 A.2d 358 (1973), to these facts. Petitioner claims

7

that the Board failed to take notice or sufficiently consider the fact that his
convictions occurred more than 12 years ago, that he has since held a Mortgage
Broker's license, completed his GED, joined a religious congregation, and has
been devoted to his family. (Pet'r Br. at 12.) In addition, he argues that he has
"freed himself from his addiction, ... turned his life around, and [i]s taking
responsibility for his past while seeking an opportunity to become involved in the
auctioneer profession." (Pet'r Br. at 19.) The Board, however, counters that the
facts in John's Vending can be distinguished from those in Petitioner's case.

John's Vending concerned a challenge to the revocation of a corporation's
wholesale cigarette dealer's license. The license was revoked based upon evidence
that a shareholder, who two days before the filing of the complaint by the Bureau
of Cigarette and Beverage Taxes resigned as president of the corporation, had
previously been convicted of certain crimes, and those convictions had not been
listed on the corporation's license application. The shareholder's convictions
included selling untaxed liquor in 1951, possessing and transporting unstamped
whiskey in 1952, and possessing and selling derivatives of opium in 1954 and
1955. These crimes were allegedly violations of, inter alia, Section 403(2) of the
Cigarette Tax Act, formerly 72 P.S. § 3169.403(2),5 which states, in relevant part:
"The applicant or any officer, director or shareholder controlling more than fifty
per cent of the stock, if the applicant is a corporation, shall not have been convicted
of any crime involving moral turpitude." The Secretary of Revenue determined
that the crimes involved moral turpitude and, so, revoked the license and this Court
agreed. The Supreme Court reversed, noting that the moral turpitude provision

5Act of July 22, 1970, P.L. 513, as amended. This provision was repealed by Section 5 of
the Act of December 21, 1981, P.L. 482, 72 P.S. § 8297.

8

was only placed into law in 1970, and, that during the twelve previous years, the
corporation had been licensed and the former president had held his office without
a single allegation of impropriety. Thus, it found no material relevance between
the shareholder's "past derelictions ... and his present ability to perform duties
required by the position." John's Vending, 453 Pa. at 493, 309 A.2d at 361.

We agree with the Board that John's Vending can be distinguished. Most
importantly, John's Vending involved the revocation of an existing license,
whereas, here, Petitioner has no existing property right of which he is being
deprived. Moreover, in John's Vending, the licensee had possessed its license for
twelve years before the law was changed to include the moral turpitude provision,
and the shareholder's "past derelictions" had not affected his ability to perform as
corporate president. Furthermore, there was evidence that the licensee had
complied with the requirements of the Act for the twelve years. Thus, the Court
found that his "past derelictions" had "no material relevance" to his ability to
perform his duties under the Act. Here, however, Petitioner did not present
evidence proving that his criminal history had no material relevance on his ability
to safeguard the interest of the public while performing the duties required of an
auctioneer.

In summary, given the Board's discretion in administering its own statutes,
and considering that Petitioner presented only his own testimony and one character
reference letter from a legislator to rebut 28 convictions and 17 guilty pleas
spanning 20 years and involving crimes that directly reflect on a person's ability to
transact the business of an auctioneer, we hold that the Board did not abuse its

9

discretion or commit an error of law when it found that Petitioner did not "have a
good reputation for honesty, truthfulness, integrity and competence to transact the
business of auctioneer" as required under the Act.

Accordingly, we affirm the order of the Board denying Petitioner's
application for an auctioneer license.6

_______________________________

RENÉE
COHN
JUBELIRER,
Judge

6 This decision does not preclude Petitioner from re-applying for an auctioneer license in
the future.

10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kim Nelson,
:

:
Petitioner :

:
v.

:
No.
1211
C.D.
2004

:
State Board of Auctioneer Examiners, :

:
Respondent
:

O R D E R

NOW, April 26, 2005, the order of the State Board of Auctioneer
Examiners in the above-captioned case is hereby affirmed.

_______________________________

RENÉE
COHN
JUBELIRER,
Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kim Nelson,

:

Petitioner
:

:

v.

:
No. 1211 C.D. 2004

:
Argued: March 1, 2005
State Board of Auctioneer Examiners,
:

Respondent

:
BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE FRIEDMAN

FILED: April 26, 2005

I respectfully dissent. The majority holds that the State Board of
Auctioneer Examiners (Board) did not abuse its discretion or commit an error of
law in denying Kim Nelson's (Nelson) auctioneer license application under section
3(c) of the Auctioneer and Auction Licensing Act (Act).7 (Majority op. at 9-10.)
For the following reasons, I cannot agree.

The Board made the following findings of fact. Nelson applied for an
auctioneer license on April 4, 2003. The application contained documentation of
Nelson's past criminal history, including twenty-eight convictions from mid-1970
through mid-1991 for crimes that included receipt of stolen property, retail theft,
bad checks and firearms violations. These crimes stemmed from an underlying

7 Act of December 22, 1983, P.L. 327, 63 P.S. §734.3(c).

drug use problem. (Board's Findings of Fact, Nos. 1-2, 6-7.) The Board denied
Nelson's application because, based on Nelson's prior convictions, he was not a
person with a good reputation for honesty, truthfulness and integrity. (Board's
Conclusions of Law, No. 3.)

Nelson argues that the Board erred or abused its discretion in denying
his application based solely on a twelve-year-old criminal history and in ignoring
the fact that Nelson has a clean record since 1991, has run several businesses, has
obtained his GED, is a member of a religious faith community and wishes to move
forward in his career. (See Board's op. at 5.) I agree.

I. John's Vending Corporation

In Secretary of Revenue v. John's Vending Corporation, 453 Pa. 488,
309 A.2d 358 (1973), the Secretary of Revenue revoked the Wholesale Cigarette
Dealer's License of John's Vending Corporation because a shareholder and former
president of the corporation had been convicted of crimes of moral turpitude
almost twenty years previously and because the convictions were not listed on the
license application. Our supreme court stated:
[T]he fact that these crimes occurred almost twenty years
ago renders them of little value in predicting future
conduct of their perpetrator. A provision [prohibiting the
issuance of a license to a person convicted of a crime of
moral turpitude] at best only suggests that a person who
has committed certain acts in the past would be more
likely to betray the trust that this license entails than a
citizen with no such past history. Such reasoning, while
not infallible, has a logical basis in experience. But that
basis exists only where those events occurred so
recently that the particular character trait of the
individual involved can reasonably be assumed to have
RSF - 13 -

remained unchanged. Where, as here, nearly twenty
years has expired since the convictions and the record
reveals that the individual has held this position of
responsibility for twelve years without any allegation of
impropriety, it is ludicrous to contend that these prior
acts provide any basis to evaluate his present character.

Id. at 493-94, 309 A.2d at 361-62 (emphasis added). Moreover, to interpret the
licensing statute "as a blanket prohibition barring anyone who has been convicted
of a crime of moral turpitude without regard to the remoteness of those convictions
or the individual's subsequent performance would be unreasonable. We cannot
assume that the legislature intended such an absurd and harsh result."8 Id. at 494,
309 A.2d at 362 (emphasis added).

Here, it is undisputed that Nelson has had a clean record since 1991,
has run several businesses, has obtained his GED and is a member of a religious
faith community. Nevertheless, the Board denied Nelson's license application

8 In addition, our supreme court stated:

[Finally,] such a result runs afoul of the deeply ingrained public
policy of this State to avoid unwarranted stigmatization of and
unreasonable restrictions upon former offenders. This State in
recent years has been unalterably committed to rehabilitation of
those persons who have been convicted of criminal offenses. To
forever foreclose a permissible means of gainful employment
because of an improvident act in the distant past completely loses
sight of any concept of forgiveness for prior errant behavior and
adds yet another stumbling block along the difficult road of
rehabilitation.

Id. at 494-95, 309 A.2d at 362 (emphasis added). Where an individual has "built a new life for
himself" and there has been "no suggestion of any impropriety" for twelve years, a license
revocation would be an unintended and "unfeeling result." Id. at 495, 309 A.2d at 362
(emphasis added).

RSF - 14 -

based solely on his twelve-year-old criminal history. I submit that, under John's
Vending, the Board's use of Nelson's prior acts, and nothing more, to evaluate his
present character was ludicrous and unreasonable, and the resulting denial of
Nelson's application was absurd and harsh, especially considering that there has
been no allegation of impropriety for the previous twelve years.

II. Five-Year Rule

Section 20(a)(4) of the Act allows the Board to revoke the license of
an individual who, within five years of the issuance of the license, was convicted
of forgery, embezzlement, obtaining money under false pretenses, extortion,
conspiracy to defraud or other like offenses. 63 P.S. §734.20(a)(4). Section 28(b)
of the Act states, "No license shall be issued by the board to any person known by
it to have been, within five years, convicted of forgery, embezzlement, obtaining
money under false pretenses, extortion, criminal conspiracy to defraud or other like
offense...." 63 P.S. §734.28(b) (emphasis added).

Thus, as a matter of law, the Board may not issue a license to a person
who was convicted of crimes of dishonesty within the past five years. In other
words, applying the rationale in John's Vending, the legislature believes it is
reasonable to use convictions that occurred within the past five years to determine
a person's present character. Logically, it would not be reasonable to use
convictions that occurred more than five years ago, without more, to determine a
person's present character. Considering this five-year rule, I submit that the Board
RSF - 15 -

abused its discretion by denying Nelson's license application based solely on a
twelve-year-old criminal history.9

III. Mortgage Brokers License

It is undisputed in the record that Nelson obtained a Mortgage Brokers
license in 1999. (N.T. at 19.)

Section 306 of the Mortgage Bankers and Brokers and Consumer
Equity Protection Act (Mortgage Brokers Act)10 governs the issuance of a
Mortgage Brokers License by the Department of Banking (Department). Section
306(a) of the Mortgage Brokers Act provides that, upon receipt of a license
application, the Department shall conduct an investigation to determine whether
the applicant is of "good character and ethical reputation." 63 P.S. §456.306(a).
Moreover, section 306(c) of the Mortgage Brokers Act provides that the
Department may deny a license if it finds that the applicant has been convicted of a
misdemeanor or felony. 63 P.S. §456.306(c).

Here, as stated, the Department issued a Mortgage Brokers license to
Nelson in 1999, finding Nelson to be of good character and ethical reputation.
Moreover, the record is clear that Nelson has had a clean record since then.
However, in ruling on Nelson's application, the Board did not consider the
Department's issuance of the Mortgage Brokers license to Nelson in 1999, or

9 Although this court reached a different conclusion in Pook v. State Bord of Auctioneer
Examiners, 735 A.2d 134 (Pa. Cmwlth. 1999), in Pook, this court did not consider the rationale
in John's Vending.
10 Act of December 22, 1989, P.L. 687, as amended, 63 P.S. §456.306.
RSF - 16 -

Nelson's subsequent clean record, despite the fact that the Department, like the
Board, is an administrative agency of the Commonwealth. The Board considered
only the fact that Nelson had a criminal history and denied his application on that
basis. I believe that, in doing so, the Board abused its discretion.

Accordingly, unlike the majority, I would reverse.

_____________________________

ROCHELLE
S.
FRIEDMAN,
Judge

RSF - 17 -