Summary
In Barr v. State Real Estate Commission, 110 Pa. Commw. 530, 532 A.2d 1236 (1987), the petitioners filed a declaratory judgment action to determine whether a licensing act for real estate brokers applied to them because they assessed property for purposes other than real estate transactions.
Summary of this case from Cherry v. City of PhiladelphiaOpinion
Argued September 14, 1987.
October 29, 1987.
Administrative law — Failure to exhaust administrative remedies — Jurisdiction — Futile acts — Constitutionality of statutes — Real Estate Licensing and Registration Act, Act of February 19, 1980, P.L. 15.
1. A court generally has no jurisdiction in law or equity over a matter where an administrative remedy exists. [533]
2. The failure to exhaust administrative remedies is not excused and jurisdiction is not accepted by a court in such a case to grant injunctive or declaratory relief merely because a petitioner believes that the appropriate administrative body has prejudged the matter and ignored applicable law, as courts will not presume the futility of an administrative remedy and will allow the administrative body an opportunity to decide a matter correctly before intervening. [533-4]
3. The exception to the requirement that administrative remedies be exhausted before a court will assume jurisdiction over a matter applicable to constitutional attacks upon a statute is inapplicable to a case in which the Real Estate Licensing and Registration Act, Act of February 19, 1980, P.L. 15, is attacked as being unconstitutional only as such act is applied to the petitioner, not as it applies to real estate brokers. [534]
Argued September 14, 1987, before Judges MacPHAIL and PALLADINO, and Senior Judge NARICK, sitting as a panel of three.
Original Jurisdiction, No. 354 C.D. 1987, in case of David S. Barr, an individual, and 21st Century Appraisals, Inc., a Pennsylvania corporation v. Commonwealth of Pennsylvania, State Real Estate Commission.
Petition for equitable relief and a declaratory judgment filed in Commonwealth Court of Pennsylvania, seeking to enjoin the Pennsylvania State Real Estate Commission from enforcing Real Estate Licensing and Registration Act. Respondents filed preliminary objections as to jurisdiction and in nature of demurrer. Held: Preliminary objection relating to jurisdiction sustained.
S. Paul Mazza, for petitioners.
Gwendolyn T. Mosley, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.
David S. Barr and 21st Century Appraisals, Inc. (Petitioner) have filed in this court's original jurisdiction a "Petition for Equitable Relief and a Declaratory Judgment" (Petition) in which they seek to have us (1) enjoin the Pennsylvania State Real Estate Commission (Respondent) from enforcing the Real Estate Licensing and Registration Act (Act) against Petitioners and others similarly situated and (2) grant a declaratory judgment that the Act does not apply to Petitioner and others similarly situated. Respondent has filed preliminary objections to the Petition which are now before us for disposition.
David S. Barr is the president of 21st Century Appraisals.
Act of February 19, 1980, P.L. 15, as amended, 63 P. S. § 455.101-455.902.
Petitioners provide real estate assessment services to a number of counties in the Commonwealth. On December 23, 1986, Respondent served Petitioners with an "Administrative Complaint and Order to Show Cause" which charged Petitioners with violating the Act by "acting in the capacity of a real estate broker without first being licensed as required by the Act." A hearing date was set for January 27, 1987. Petitioners sought a continuance of the hearing which was denied on January 26, 1987. An objection was made to the denial of the continuance and the late notification of the denial. Apparently, the hearing was held as scheduled without Petitioners' participation. On February 17, 1987, Petitioners filed their petition with this court. Respondents filed timely preliminary objections.
Petitioners sought the continuance because of the illness of counsel and lack of time to prepare because of counsel's illness and the holidays.
This information does not appear in Petitioners' petition. However, Petitioners so indicate in their brief. They also state that they have filed exceptions to the hearing examiner's report. Petitioner's brief at 4.
Respondent's preliminary objections were filed on April 24, 1987. While this is after the 30 day limit of Pa. R.A.P. 1516(c), Respondent requested and was granted a longer time in which to respond to the petition.
Respondent's first objection is to the jurisdiction of this court. Respondent contends we lack jurisdiction because Petitioners have failed to exhaust their administrative remedies. Respondent also makes preliminary objections in the nature of a demurrer which we do not reach since we conclude for the reasons which follow that we are without jurisdiction to hear this matter at this time in our original jurisdiction.
Generally, a court does not have jurisdiction to address an action in law or in equity where an administrative remedy exists. Campbell v. Department of Labor and Industry, 80 Pa. Commw. 558, 471 A.2d 1331 (1984), appeal quashed, 507 Pa. 479, 490 A.2d 831 (1985). Petitioners contend they should not be required to exhaust their administrative remedies because: (1) Respondent has ignored case law that indicates a broker's license is not required to serve as an assessor for county tax assessment purposes; (2) Respondent has prejudged the facts and the law, making pursuance of any administrative remedy futile; and (3) the Act is unconstitutional because it takes Petitioner's property rights without compensation or due process.
Petitioners' first contention, that Respondent has ignored case law in pursuing its action against them, is subsumed in their second contention that pursuance of their administrative remedy would be futile. As our Supreme Court has instructed, " 'courts should not presume futility in the administrative appeal; on the contrary, they should assume that the administrative process will, if given a chance, discover and correct its errors.' " Canonsburg General Hospital v. Department of Health, 492 Pa. 68, 74, 422 A.2d 141, 145 (1980) (quoting B. Swartz, Administrative Law § 172 at 499 (1976)) (emphasis added). Petitioners are currently involved in a case before Respondent. Petitioners may be correct in their assertion that the Act was not intended to apply to them and that Respondent erred in bringing a complaint against them. However, since the administrative process in this case is not yet complete, it would be premature for us to consider that issue at this time. Respondent must be given the opportunity to discover and correct any errors it may have made.
As to Petitioners' argument that the Act is unconstitutional, we note that there is an exception to the exhaustion of administrative remedies doctrine for constitutional attacks. See St. Clair v. Pennsylvania Board of Probation and Parole, 89 Pa. Commw. 561, 493 A.2d 146 (1985). To qualify under that exception "the attack must be made to the constitutionality of the statute or regulation as a whole and not merely to how the statute or regulation has been applied in a particular case." Id., 89 Pa. Commw. at 570, 493 A.2d at 153. Petitioners assert that the Act is unconstitutional because if applied to them and others similarly situated, it will result in taking of property without compensation or due process of law. Petitioners do not contend that the Act is unconstitutional as applied to real estate brokers in connection with real estate transactions. In fact, Petitioners assert that they are exempt from the Act for the reason that their assessments are not made in connection with the buying and selling of real estate. We conclude the constitutional issue raised by Petitioners does not fall within the constitutional attack exception because the attack is to the constitutionality of the application of the Act against them.
Therefore, this court is without jurisdiction to consider Petitioners' requests for an injunction and a declaratory judgment. Accordingly, we sustain Respondent's preliminary objection to the jurisdiction of this court to consider this case.
ORDER
AND NOW, October 29, 1987, the preliminary objection of the State Real Estate Commission relating to the jurisdiction of this court is sustained.