Summary
In Moore, supra, a request was made for a continuance because the attorney representing the appellant did not receive personal notice of the hearing and when notified by his client he could not attend the hearing because, as a member of the State Legislature, he was required to be in Harrisburg to pass on important legislation.
Summary of this case from Benford v. Real Estate CommissionOpinion
Argued September 13, 1971
November 11, 1971.
Administrative law — State Real Estate Commission — Notice of Hearing — Continuance — Abuse of discretion.
1. An administrative agency conducting suspension proceedings against a licensee is guilty of an abuse of discretion in suspending the license without granting a requested continuance where, after advising licensee's counsel that it would notify him of the hearing date, the agency notified the licensee only and did not notify counsel who had compelling reasons for not being present at the hearing. [448-50]
Argued September 13, 1971, before Judges CRUMLISH JR., MANDERINO and ROGERS, sitting as a panel of three.
Appeal No. 140 C. D. 1971 from the Adjudication and Order of the State Real Estate Commission in case of State Real Estate Commission v. Marie Moore, Nos. 1595 and 1596.
Complaints filed against licensee with State Real Estate Commission. Hearing held and adjudication and order rendered by State Real Estate Commission suspending appellant's real estate broker's license. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
George R. Johnson, with him Donald E. Schlater, Johnson Schlater, for appellant.
Steven Kachmar, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for appellee.
This is an appeal from an adjudication and order of the State Real Estate Commission dated January 26, 1971 by which appellant's real estate broker's license was suspended. Appellant contends, through counsel, that she was neither given proper notice nor the opportunity to be heard because the Commission arbitrarily denied her motion to continue the hearing. In the factual situation herein considered, we agree that the continuance should have been granted.
Complaints against the appellant were filed in 1969 and served upon her shortly thereafter. Appellant's counsel promptly sent a formal letter of representation to the Commission and in it he requested that he be advised of the date and time of any formal hearing which the Commission proposed to hold. The Commission acknowledged receipt of this letter and assured counsel that he would "be advised of the Commission's action as promptly thereafter as is convenient."
Acting upon the complaint, the Commission issued a citation and scheduled a hearing for June 16, 1970. The Commission notified the appellant of the impending hearing but did not notify her counsel. Appellant, apparently under the assumption that the Commission would notify her counsel as it had represented, failed to contact her counsel until shortly before the hearing was to be held.
Having been advised by his client that the hearing was scheduled on the day he was to appear in Harrisburg to pass on important legislation in his capacity as a member of the State House of Representatives, he immediately sought the continuance. The Commission summarily refused to grant the continuance because of the lateness of the hour. We hold that in these circumstances the Commission abused its discretion.
Counsel's attempt to obtain a continuance the day before the hearing was prevented because the Commission was closed in commemoration of a legal holiday.
This is not to say that the Commission failed in its duty to comply with the technical requirement of notice to the appellant but that the Commission should have used better judgment in the exercise of its discretion and allowed the continuance in the instant case. The Commission had assured counsel that it would notify him of any impending action. If it had done so, it would have had early advices of the very valid reason for his request and the inconvenience to witnesses would have been avoided. Neither appellant nor her counsel should be penalized for the Commission's omission.
Nor do we, by reversing the order of the Commission by which appellant's license was revoked, rule on the merits of that revocation. By deciding as we have, we hold that appellant should be afforded an opportunity to present evidence in support of her defenses, if any, and to cross-examine Commonwealth witnesses.
ORDER
AND NOW, this 11th day of November, 1971, the order of the Pennsylvania State Real Estate Commission dated January 26, 1971, is hereby reversed and the matter is remanded to the Commission for hearing and consideration consistent with this opinion.