SENATE AMENDED
PRIOR PRINTER'S NO. 1353, 1719 PRINTER'S NO. 2858
No. 1218 Session of 1981
INTRODUCED BY DORR, APRIL 21, 1981
AS AMENDED ON SECOND CONSIDERATION, IN SENATE, FEBRUARY 3, 1982
AN ACT
1 Amending the act of February 19, 1980 (P.L.15, No.9), entitled
2 "An act establishing the State Real Estate Commission and
3 providing for the licensing of real estate brokers and
4 salesmen," providing for the registration of cemetery
5 companies and providing for fees, enforcement and penalties.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 101, act of February 19, 1980 (P.L.15,
9 No.9), known as the "Real Estate Licensing Act," is amended to
10 read:
11 Section 101. Short title.
12 This act shall be known and may be cited as the "Real Estate
13 Licensing and Registration Act."
14 Section 2. Section 201 of the act is amended by adding
15 definitions to read:
16 Section 201. Definitions.
17 The following words and phrases when used in this act shall
18 have, unless the context clearly indicates otherwise, the
1 meanings given to them in this section:
2 * * *
3 "Cemetery." A place for the disposal or burial of deceased
4 human beings, by cremation or in a grave, mausoleum, vault,
5 columbarium or other receptacle, but the term does not include a
6 private family cemetery.
7 "Cemetery company." Any person who offers or sells to the
8 public the ownership, or the right to use, any cemetery lot.
9 * * *
10 Section 3. Sections 301 and 303 of the act are amended to
11 read:
12 Section 301. Unlawful to conduct business without license or
13 registration certificate.
14 From and after the effective date of this act, it shall be
15 unlawful for any person, directly or indirectly, to engage in or
16 conduct, or to advertise or hold himself out as engaging in or
17 conducting the business, or acting in the capacity of a broker
18 or salesperson, limited broker, limited salesperson, builder-
19 owner salesperson, [or] rental listing referral agent or
20 cemetery company within this Commonwealth without first being
21 licensed or registered as such as provided in this act, unless
22 he is exempted from obtaining a license or registration
23 certificate under the provisions of section 304.
24 Section 303. Criminal penalties.
25 Any person who shall, after the effective date of this act,
26 engage in or carry on the business, or act in the capacity of a
27 broker, salesperson, limited broker, limited salesperson,
28 builder-owner salesperson [or], rental listing referral agent or
29 cemetery company, within this Commonwealth, without a license or
30 registration certificate, or shall carry on or continue business
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1 after the suspension or revocation of any such license or
2 registration certificate issued to him, or shall employ any
3 person as a salesperson or limited salesperson to whom a license
4 has not been issued, or whose license or registration
5 certificate as such shall have been revoked or suspended, shall
6 be guilty of a summary offense and upon conviction thereof for a
7 first offense shall be sentenced to pay a fine not exceeding
8 $500 or suffer imprisonment, not exceeding three months, or both
9 and for a second or subsequent offense shall be guilty of a
10 felony of the third degree and upon conviction thereof, shall be
11 sentenced to pay a fine of not less than $2,000 but not more
12 than $5,000 or to imprisonment for not less than one year but
13 not more than two years, or both.
14 Section 4. Section 304 of the act, amended December 9, 1980
15 (P.L.1145, No.206), is amended to read:
16 Section 304. Exclusions.
17 The provisions of this act shall not apply to an owner of
18 real estate with respect to property owned or leased by such
19 owner, provided that in the case of a partnership or
20 corporation, this exclusion shall not extend to more than five
21 of its partners or officers, respectively, but to no other
22 partnership or corporation personnel or employee, except the
23 employees of a public utility acting in the ordinary course of
24 utility related business under the provisions of Title 66 of the
25 Pennsylvania Consolidated Statutes (relating to public
26 utilities), with respect to negotiating the purchase, sale or
27 lease of property, nor shall this act apply to officers or
28 employees of a partnership or corporation whose principal
29 business is the discovery, extraction, distribution or
30 transmission of energy or mineral resources, provided that the
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1 purchase, sale or lease of real estate is a common and necessary
2 transaction in the conduct of such principal business; nor shall
3 this act be construed to include in any way the services
4 rendered by an attorney in fact under a duly executed and
5 recorded power of attorney from the owner or lessor (provided
6 such power of attorney is not utilized to circumvent the intent
7 of this act); nor by an attorney at law, nor shall it be held to
8 include a person acting as receiver, trustee in bankruptcy,
9 administrator, executor, trustee or guardian while acting under
10 a court order or under the authority of a will or of a trust
11 instrument, nor shall this act apply to the duly elected officer
12 of any banking institution or trust company operating under
13 Federal or State banking laws where real estate of the banking
14 institution or trust company only is involved, nor shall they be
15 held to include any officer or employee of a cemetery company
16 who, as incidental to his principal duties and without
17 renumeration therefor, shows lots in such company's cemetery to
18 persons for their use as a family burial lot, and who accepts
19 deposits on such lots for the representatives of the cemetery
20 company, legally authorized to sell the same, nor shall it apply
21 to cemetery companies and cemeteries owned or controlled by a
22 bona fide church or religious congregation or fraternal
23 organization or by any association created by a bona fide church
24 or religious organization or by a fraternal organization, nor
25 shall it be held to include any properly licensed auctioneer,
26 under statutes of this State, while performing authorized duties
27 at any bona fide auction.
28 Section 5. Sections 401 and 406 of the act are amended to
29 read:
30 Section 401. Duty to issue licenses and registration
19810H1218B2858 - 4 -
1 certificates.
2 It shall be the duty of the department to issue licenses and
3 registration certificates to individuals, copartnerships and
4 corporations, who shall comply with the provisions of this act.
5 Section 406. Administration and enforcement.
6 The commission shall have the power and its duty shall be to
7 administer and enforce the laws of the Commonwealth relating to:
8 [those]
9 (1) Those activities involving real estate for which
10 licensing is required under this act and to instruct and
11 require its agents to bring prosecutions for unauthorized and
12 unlawful practice.
13 (2) Those activities involving cemeteries and cemetery
14 companies for which registration is required under this act
15 and to instruct and require its agents to bring prosecutions
16 for unauthorized or unlawful activities.
17 Section 6. The heading of Chapter 5 of the act is amended
18 and a subchapter is added to read:
19 CHAPTER 5
20 QUALIFICATIONS AND APPLICATIONS FOR LICENSES
21 AND REGISTRATION CERTIFICATES
22 SUBCHAPTER H
23 CEMETERY COMPANY REGISTRATION CERTIFICATE
24 Section 571. Application and fee for registration certificate.
25 (a) An application for a registration certificate for a
26 cemetery company to operate a cemetery shall be made, in writing
27 to the department, upon a form provided for the purpose by the
28 department, and shall contain such information as to the
29 applicant as the commission shall require.
30 (b) (1) The fee for application and initial biennial
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1 registration as a cemetery company shall be $25 which shall
2 be paid at the time of application and which shall be
3 nonrefundable.
4 (2) The biennial fee for the renewal of a cemetery
5 company registration certificate shall be $25.
6 (3) The fees established in this subsection shall be
7 subject to the act of July 1, 1978 (P.L.700, No.124), known
8 as the "Bureau of Professional and Occupational Affairs Fee
9 Act," in the same manner as other fees of the commission.
10 Section 7. The introductory paragraph of section 604 is
11 amended and paragraphs are added to read:
12 Section 604. Prohibited acts.
13 The commission may upon its own motion, and shall promptly
14 upon the verified complaint in writing of any person setting
15 forth a complaint under this section, ascertain the facts and,
16 if warranted, hold a hearing for the suspension or revocation of
17 a license or registration certificate or for the imposition of
18 fines not exceeding $500. The commission shall have power to
19 refuse a license or registration certificate for cause or to
20 suspend or revoke a license or registration certificate or to
21 levy fines up to $500 where the said license has been obtained
22 by false representation, or by fraudulent act or conduct, or
23 where a licensee or registrant, in performing or attempting to
24 perform any of the acts mentioned herein, is found guilty of:
25 * * *
26 (23) In the case of a cemetery company registrant,
27 violating any provisions of Title 9 of the Pennsylvania
28 Consolidated Statutes (relating to burial grounds).
29 (24) In the case of a cemetery company registrant,
30 violating any provisions of the act of August 14, 1963
19810H1218B2858 - 6 -
1 (P.L.1059, No.459), entitled "An act prohibiting future need
2 sales of cemetery merchandise and services, funeral
3 merchandise and services, except under certain conditions;
4 requiring the establishment of and deposit into a merchandise
5 trust fund of certain amount of the proceeds of any such
6 sale; providing for the administration of such trust funds
7 and the payment of money therefrom; conferring powers and
8 imposing duties on orphans' courts, and prescribing
9 penalties."
10 Section 8. Sections 702, 802 and 803 of the act are amended
11 to read:
12 Section 702. Imputed knowledge, limitations.
13 (a) No violation of any of the provisions of this act on the
14 part of any salesperson, associate broker, or other employee of
15 any licensed broker, shall be grounds for the revocation or
16 suspension of the license of the employer of such salesperson,
17 associate broker, or employee, unless it shall appear upon the
18 hearings held, that such employer had actual knowledge of such
19 violation.
20 (b) No violation of any of the provisions of this act on the
21 part of any limited broker or limited salesperson or other
22 employee of any registered cemetery company, shall be grounds
23 for the revocation or suspension of the registration certificate
24 of the cemetery company, unless it shall appear that such
25 cemetery company had actual knowledge of such violation.
26 (c) A course of dealing shown to have been followed by such
27 employee shall constitute prima facie evidence of such knowledge
28 upon the part of his employer.
29 Section 802. Funding of the fund.
30 Each licensee entitled to renew his license on or after
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1 February 28, 1980, shall, when so renewing his license pay in
2 addition to the applicable license fee a further fee of $10,
3 which shall be paid and credited to the Real Estate Recovery
4 Fund, thereafter any person upon receiving his initial real
5 estate license or cemetery company registration certificate,
6 shall, in addition to all fees, pay into the Real Estate
7 Recovery Fund a sum of $10. If at the commencement of any
8 biennial renewal period beginning in 1982 and thereafter, the
9 balance of the fund is less than $300,000, the commission may
10 assess an additional fee, in addition to the renewal fee,
11 against each licensee and registrant in an amount not to exceed
12 $10 which will yield revenues sufficient to bring the balance of
13 the fund to $500,000. All said fees shall be paid into the State
14 Treasury and credited to the Real Estate Recovery Fund, and said
15 deposits shall be allocated solely for the purposes of the fund
16 as provided in this act. The fund shall be invested and
17 interest/dividends shall accrue to the fund.
18 Section 803. Application for recovery from fund.
19 (a) When any aggrieved person obtains a final judgment in
20 any court of competent jurisdiction against any person licensed
21 under this act, upon grounds of fraud, misrepresentation or
22 deceit with reference to any transaction for which a license or
23 registration certificate is required under this act (including
24 with respect to cemetery companies any violation of 9 Pa.C.S. §
25 308(b) (relating to accounts of qualified trustees)) and which
26 cause of action occurred on or after the effective date of this
27 act, the aggrieved person may, upon termination of all
28 proceedings, including reviews and appeals, file an application
29 in the court in which the judgment was entered for an order
30 directing payment out of the Real Estate Recovery Fund of the
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1 amount unpaid upon the judgment.
2 (b) The aggrieved person shall be required to show:
3 (1) That he is not a spouse of the debtor, or the
4 personal representative of said spouse.
5 (2) That he has obtained a final judgment as set out in
6 this section.
7 (3) That all reasonable personal acts, rights of
8 discovery and such other remedies at law and in equity as
9 exist have been exhausted in the collection thereof.
10 (4) That he is making said application no more than one
11 year after the termination of the proceedings, including
12 reviews and appeals in connection with the judgment.
13 (c) The commission shall have the right to answer actions
14 provided for under this section, and subject to court approval,
15 it may compromise a claim based upon the application of the
16 aggrieved party.
17 (d) When there is an order of the court to make payment or a
18 claim is otherwise to be levied against the fund, such amount
19 shall be paid to the claimant in accordance with the limitations
20 contained in this section. Notwithstanding any other provisions
21 of this section, the liability of that portion of the fund
22 allocated for the purpose of this act shall not exceed $20,000
23 for any one judgment. If the $20,000 liability of the Real
24 Estate Recovery Fund as provided herein is insufficient to pay
25 in full claims adjudicated valid of all aggrieved persons
26 against any one licensee or registrant, such $20,000 shall be
27 distributed among them in such ratio that the respective claims
28 of the aggrieved applicants bear to the aggregate of such claims
29 held valid. If, at any time, the money deposited in the Real
30 Estate Recovery Fund is insufficient to satisfy any duly
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1 authorized claim or portion thereof, the commission shall, when
2 sufficient money has been deposited in the fund, satisfy such
3 unpaid claims or portions thereof, in the order that such claims
4 or portions thereof were originally filed, plus accumulated
5 interest at the rate of 6% a year.
6 (e) Upon petition of the commission the court may require
7 all claimants and prospective claimants against one licensee or
8 registrant to be joined in one action, to the end that the
9 respective rights of all such claimants to the Real Estate
10 Recovery Fund may be equitably adjudicated and settled.
11 (f) Should the commission pay from the Real Estate Recovery
12 Fund any amount in settlement of a claim as provided for in this
13 act against a licensee, the license of that person shall
14 automatically suspend upon the effective date of the payment
15 thereof by the commission. No such licensee shall be granted
16 reinstatement until he has repaid in full plus interest at the
17 rate of 6% a year, the amount paid from the Real Estate Recovery
18 Fund.
19 (g) Should the commission pay from the Real Estate Recovery
20 Fund any amount in settlement of a claim as provided for in this
21 act against a registrant the registrant shall automatically be
22 denied the right to sell cemetery lots upon the effective date
23 of the payment thereof by the commission. No such registrant
24 shall be granted the right to sell cemetery lots until he has
25 repaid in full plus interest at the rate of 6% a year, the
26 amount paid from the Real Estate Recovery Fund.
27 Section 9. This act shall take effect January 31, 1982 IN 60 <--
28 DAYS.
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