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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ramanik T. Hathi, Broker, t/d/b/a : The Ram Realty Group, Ram Realty : and RAMCO, : Petitioners : : v. : No. 1383 C.D. 2004 : Submitted: February 4, 2005 State Real Estate Commission, : Respondent : BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: April 12, 2005 Ramanik T. Hathi, Broker, t/d/b/a The Ram Realty Group, Ram Realty and RAMCO (Hathi) petitions for review of the June 24, 2004, order of the State Real Estate Commission (Commission) denying Hathi's petition to amend a previous Commission order. The previous order revoked Hathi's real estate licenses, and Hathi sought a lesser sanction. We affirm. On September 4, 2001, after a hearing, the Commission revoked Hathi's real estate salesperson's license, broker's license and associate broker's license, effective October 4, 2001. (R.R. at R1.) By opinion and order dated June 7, 2002, this court affirmed the revocation of Hathi's licenses. Ramanik T. Hathi, Broker t/d/b/a The Ram Realty Group, RAM Realty and RAMCO v. Bureau of Professional and Occupational Affairs, (Pa. Cmwlth., No. 2289 C.D. 2001, filed June 7, 2002). In doing so, we considered and rejected Hathi's argument that revocation was an excessive and inappropriate sanction. Hathi did not appeal from our order. On May 7, 2004, Hathi filed with the Commission a "Petition to Allow [Hathi] to have the [Commission] to [sic] Amend the Order of Revocation of Ramanik Hathi's License to Allow a Lesser Sanction of Suspension and/or Fine" (Petition). In his Petition, Hathi specifically stated that he was not seeking reinstatement of his licenses; rather, he sought a hearing in order to present "equitable circumstances" to establish that the Commission's order revoking his licenses should be modified. Hathi further argued that this court's June 7, 2002, order does not divest the Commission of its right to modify its September 4, 2001, order revoking his licenses. (Petition ¶¶13-18, R.R. at R20-22.) By order dated June 24, 2004, the Commission denied Hathi's Petition. Hathi now petitions this court for review of that order,1 asking this court to remand the matter to the Commission so that he may present evidence in support of his Petition. Hathi maintains that he is entitled to a due process hearing pursuant to section 701 of the Real Estate Licensing and Registration Act (Act) 2 1 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. 2 Act of February 19, 1980, P.L. 15, as amended, 63 P.S. §455.701. That section provides: (Footnote continued on next page...) 2 and asserts that the Commission has the power to issue a sanction less severe than revocation. We disagree. As this court explained in Keeley v. State Real Estate Commission, 501 A.2d 1155, 1157 (Pa. Cmwlth. 1985), "before one is entitled to procedural due process, one must possess an identifiable property right or liberty interest." A "former holder of a revoked real estate license retains no property interest in that license once it has been revoked by the Commission through a procedure consistent with due process." Id. Here, Hathi never asserted that he did not receive due process in the proceedings leading to revocation of his licenses. Because his licenses have been revoked, he no longer retains a property interest in those licenses, and he is not entitled to a hearing. See id. (continued...) (a) The said hearings may be held by the commission or any members thereof, or by any of its duly authorized representatives, or by any other person duly authorized by the commission for such purpose in any particular case. (b) The commission may adopt the findings in the report or may, with or without additional testimony, either return the matter to the representative for such further consideration as the commission deems necessary or make additional or other findings of fact on the basis of all the legally probative evidence of the record and enter its conclusions of law and order in accordance with the requirements for the issuance of an adjudication under Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure). (c) Proceedings before the commission shall be conducted in accordance with Title 1, Part 2 of the Pennsylvania Code. 63 P.S. §455.701. 3 Moreover, the doctrine of collateral estoppel, or issue preclusion, prevents the relitigation of issues of law or fact in a subsequent action when the following factors are demonstrated: (1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party or in privity with a party in the prior case and had a full and fair opportunity to litigate the issue and; [sic] (4) the determination in the prior proceeding was essential to the final judgment. C.D.G., Inc. v. Workers' Compensation Appeal Board (McAllister), 702 A.2d 873, 875 (Pa. Cmwlth. 1997) (footnote omitted). Here, Hathi seeks a hearing to argue that he is entitled to a sanction less than revocation. However, that precise issue was argued and decided in his prior appeal and was essential to this court's final judgment in the matter. Additionally, Hathi, as a party to the prior appeal, had a full and fair opportunity to litigate the issue. Accordingly, because all four elements of collateral estoppel are met, Hathi cannot relitigate the appropriateness of his license revocation. Finally, contrary to Hathi's assertion, the Commission does not have the power to modify Hathi's revocation. Section 501(c) of the Act, 63 P.S. §455.501(c), expressly prohibits the Commission from reinstating a revoked license within five years of the date of revocation unless ordered to do so by 4 Commonwealth Court.3 Five years have not passed since the revocation of Hathi's licenses nor has this court issued an order directing the Commission to reinstate Hathi's licenses. The fact that Hathi does not seek formal reinstatement of his licenses but, instead, requests that revocation be replaced with some lesser sanction is a distinction without a difference. Modification of the sanction to anything less than revocation would impermissibly permit Hathi to seek to have his licenses reinstated, or to be relicensed, within the prohibited five-year period. Moreover, to allow the Commission to impose a lesser sanction would, in effect, give the Commission the power to overrule a final order of this court. This, too, is impermissible. Accordingly, for these reasons, the Commission did not err in denying Hathi's petition without a hearing. _____________________________ ROCHELLE S. FRIEDMAN, Judge 3 Section 501(c) provides: Unless ordered to do so by Commonwealth Court, the commission shall not reinstate the license, within five years of the date of revocation, of any person whose license has been revoked under this act. Any person whose license has been revoked may reapply for a license at the end of the five-year period but must meet all of the licensing qualifications of this act for the license applied for, to include the examination requirement. 63 P.S. §455.501(c). 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ramanik T. Hathi, Broker, t/d/b/a : The Ram Realty Group, Ram Realty : and RAMCO, : Petitioners : : v. : No. 1383 C.D. 2004 : State Real Estate Commission, : Respondent : O R D E R AND NOW, this 12th day of April, 2005, the order of the State Real Estate Commission, dated June 24, 2004, is hereby affirmed. _____________________________ ROCHELLE S. FRIEDMAN, Judge
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