The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherman Hostetter Group LLC, :
Petitioner :
v. : No. 86 C.D. 2024
:
: Submitted: March 4, 2025
State Board of Auctioneer Examiners, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: April 29, 2025
Sherman Hostetter Group LLC (Petitioner) petitions for review of the
January 2, 2024 final adjudication of the State Board of Auctioneer Examiners (Board)
that upheld a citation and $500.00 civil penalty issued to Petitioner on April 29, 2022,
for operating as an auction company with a lapsed license in violation of Sections
3(a)(1), 5(e), and 20(a)(9) of the Auctioneer Licensing and Trading Assistant
Registration Act (Act),1 63 P.S. §§ 734.3(a)(1),2 734.5(e),3 and 734.20(a)(9).4 After
careful review, we affirm.
I. Factual Background
Petitioner is licensed as an auction company in the Commonwealth of
Pennsylvania (Commonwealth) under License No. AY002064. Petitioner has two
auctioneers of record on file with the Board, one of whom is Sherman E. Hostetter, Jr.
(Mr. Hostetter). Mr. Hostetter is Petitioner’s owner. He is also a sitting member of the
Board, having been appointed by the Governor.5
1
Act of December 22, 1983, P.L. 327, as amended, 63 P.S. §§ 734.1 – 734.34.
2
This section makes it unlawful for a person to engage in the business or profession of an
auctioneer or auction company without first obtaining a license from the Board.
3
This section, governing applications for renewal of licenses, provides:
(e) Expiration and renewal of license.--All licenses issued by the
[B]oard shall be for a maximum term of two years and shall expire on
the last day of February of each odd year. It is the duty of all persons
licensed to practice as an auctioneer, apprentice auctioneer or auction
company to renew the license biennially with the [B]oard and to pay
the license fee for each biennial license renewal. Applications for
renewals of licenses issued under this act shall be made within 60 days
prior to the expiration of the license on forms and in the manner
provided by the [B]oard.
63 P.S. § 734.5(e).
4
This section, which governs enforcement actions, provides: “(a) General rule.--The [B]oard
may refuse, suspend or revoke licenses or registrations issued by the board or impose a civil penalty
not exceeding $10,000 when it finds the applicant, licensee or registrant to have been guilty in the
performance or attempt to perform any of the following: . . . (9) Violating any of the provisions of
this [A]ct.” 63 P.S. § 734.20(a)(9).
5
The Board is currently made up of the Commissioner of the Bureau of Professional and
Occupational Affairs (Bureau), a consumer protection member, three auctioneers, and a registered
trading assistant.
2
Petitioner allowed its license to lapse from March 1, 2021, through at least
March 16, 2022. On March 4, 2023, Petitioner submitted an application to the
Pennsylvania Department of State (Department) to reactivate its license (Reactivation
Application) on which Mr. Hostetter checked the box in Section 1, which indicates:
“Yes, this auction company has been operating in Pennsylvania after 02/28/2021
and I want to reactivate my license at this time by paying the renewal fee(s) and
applicable late renewal fees. A late renewal fee of $5.00 per month is assessed when
postmarked after 02/28/2021.” (Reproduced Record (R.R.) at 105a) (emphasis added).
Along with the Reactivation Application, Petitioner paid a total fee of $325.00, which
included a reactivation fee of $260.00 and a late fee of $65.00. Id.
On April 29, 2022, the Department issued a Citation and imposed a civil
penalty in the amount of $500.006 upon Petitioner for “operating an auction company
on a lapsed license in this Commonwealth.” Id. at 1a. An electronic signature bearing
the name of “Karen Hunter” appeared in the box labeled “Issuer Signature.” Id. On
May 11, 2022, Mr. Hostetter submitted a plea on behalf of Petitioner denying the
violations as charged in the Citation. Id.
On September 21, 2021, a formal hearing on the Citation was conducted
before Bureau Hearing Examiner Hope Goldhaber. Mr. Hostetter was not in
attendance. Petitioner was represented by counsel. The Commonwealth offered into
evidence a Certificate of Attestation dated September 13, 2021, marked as Exhibit C-
2, which attested to the fact that Petitioner’s license was lapsed from March 1, 2021,
to March 16, 2022. Petitioner objected to the admission of Exhibit C-2 on the ground
that it contained hearsay. Id. at 23a-24a. The Commonwealth also offered into
6
The Board’s schedule of civil penalties located at 49 Pa. Code § 43b.12a sets forth a civil
penalty of $500.00 for a first offense of operating an auction company on a lapsed license in this
Commonwealth in violation of 63 P.S. §§ 734.3(a)(1), 734.5(e), and 734.20(a)(9).
3
evidence as Exhibit C-3, a Certificate and Attestation signed and dated by the Board’s
Administrator and legal custodian of records for the Board, who attested that the
Reactivation Application attached thereto was a true and accurate copy of that
document. Id. at 26a-27a. Petitioner objected to the admission of the Reactivation
Application on the grounds that it failed to inform Petitioner that the information
provided could be used against it in a “quasi-criminal” administrative disciplinary
proceeding. Id. at 27a.
The Commonwealth also presented the testimony of Professional Conduct
Investigator Nicholas Howard (Investigator Howard). Investigator Howard testified
that he interviewed Mr. Hostetter and, during this interview, Mr. Hostetter confirmed
that he allowed Petitioner’s license to lapse, he continued to operate unknowingly with
a lapsed license, and he conducted 121 auctions while Petitioner’s license was lapsed.
Investigator Howard also testified that Mr. Hostetter gave him his business card, which
listed his email and auction website. Investigator Howard testified that, using this
business card, he accessed Petitioner’s website, hostetterauctioneers.com, and
confirmed that Petitioner had conducted auctions in the Commonwealth of
Pennsylvania while its license was lapsed. He also testified that while he was on
Petitioner’s website, he took screenshots of Petitioner’s contact page and screenshots
of the listings for completed auctions conducted in Pennsylvania between March 1,
2021, and February 28, 2022, while Petitioner’s license was lapsed.
The Commonwealth offered into evidence Exhibits C-4 and C-5, which
consisted of Investigator Howard’s screenshots. Id. at 111a-236a. In addition, the
Commonwealth introduced into evidence an Order of the Department’s Commissioner,
marked as Exhibit C-6, confirming that professional conduct investigators, regulatory
enforcement inspectors, prosecuting attorneys of the Bureau’s Legal Office, and staff
4
of the Professional Compliance Office are authorized to issue citations and impose
penalties for violations of the Act. Id. at 237a. Petitioner objected to the admission of
the Order on the grounds that the delegation of authority as explained in the Order was
inconsistent with the Act and regulations.7 Id. at 71a-73a.
In its defense, Petitioner’s counsel argued that the Citation and
investigation were defective because: (1) the Citation was issued by someone named
Karen Hunter, who the Commonwealth did not prove was authorized to do so under 49
Pa. Code § 43b.3,8 because she was not the agent who conducted the investigation; and
(2) the Citation violated Petitioner’s due process because it gave no “Miranda-like”9
warning that information provided in Section 1 (asking the applicant to confirm that
7
Hearing Examiner Goldhaber admitted Exhibits C-1, C-2, C-3, and C-6 over Petitioner’s
objections at the hearing but reserved ruling on the admissibility of Exhibits C-4 and C-5 until
issuance of her decision.
8
The Board’s regulation at 49 Pa. Code § 43b.3, which governs procedures for inspections,
investigations, and the imposition of civil penalties under the Act, provides:
(a) Inspections/investigations. Authorized agents may conduct
inspections and investigations for the purpose of ascertaining
compliance with statutory provisions and regulations of licensing
boards and commissions relating to required licensure and the
conduct or operation of a business or facility.
(b) Citations.
(1) If an inspection reveals a violation of a statute or a
regulation for which a civil penalty has been established
under the schedules in this chapter, the authorized agent
may prepare a citation indicating the violations found
and the penalties imposed. A copy of the citation will be
provided to the respondent.
9
Miranda v. Arizona, 384 U.S. 436 (1966).
5
the applicant has operated in the Commonwealth since the last license renewal period)
could be used to initiate an administrative disciplinary investigation and as evidence
against it in an administrative disciplinary proceeding. Petitioner also objected to the
admissibility of Commonwealth Exhibits C-4 and C-5 (screenshots of the listings for
completed auctions on Petitioner’s website) on the grounds that they were not
authenticated, were not relevant, and constituted inadmissible hearsay.
On April 28, 2023, Hearing Examiner Goldhaber issued an order
upholding the Citation, concluding that the Commonwealth met its burden of proof that
Petitioner operated its auction company on a lapsed license. Id. at 282a-99a. Citing
the Reactivation Application (Exhibit C-3), Hearing Examiner Goldhaber found that
Petitioner’s auction company’s license lapsed from March 1, 2021, through at least
March 16, 2022. Id., Finding of Fact (FOF) 26. Hearing Examiner Goldhaber found
that Petitioner violated 63 P.S. §§ 734.3(a)(1) 734.5(e), and 734.20(a)(9), because it
conducted more than 100 auctions in Pennsylvania from March 1, 2021, through
February 28, 2022, while its license was lapsed. Hearing Examiner Goldhaber also
addressed Petitioner’s challenge to the admissibility of the Commonwealth’s various
exhibits. The order imposed a civil penalty of $500.00.
Petitioner filed exceptions on January 2, 2024. Because Mr. Hostetter is
Petitioner’s owner and a sitting member of the Board, all members of the Board recused
themselves and delegated the matter to Bureau Hearing Examiner Travis Anderson for
purposes of issuing a final determination. (R.R. at 316a.) On October 19, 2023,
Petitioner filed exceptions to that delegation and requested that the Board schedule a
status conference and permit oral argument on the delegation issue. On January 2,
2024, after the filing of briefs by the parties addressing the Board’s delegation order,
Hearing Examiner Anderson entered an order overruling Petitioner’s objection to the
6
delegation and denying Petitioner’s request for a scheduling conference and oral
argument. Hearing Examiner Anderson issued a Final Order adopting the findings and
conclusions of Hearing Examiner Goldhaber. Id. at 339a-40a.
On appeal,10 Petitioner argues that (1) the Commonwealth’s investigation
and Citation were defective and procedurally infirm because (a) the Commonwealth
did not demonstrate that Investigator Howard was authorized by the Board to conduct
his investigation; and (b) the Commonwealth did not demonstrate that Karen Hunter
was authorized to issue the Citation; (2) the Reactivation Application was
constitutionally infirm because it did not warn Petitioner that the statements relative to
possible license violations could result in disciplinary action and would be used against
Petitioner in such action; (3) the delegation of the matter to Hearing Examiner
Anderson deprived Petitioner of an opportunity for an exercise of the Board’s
discretion with respect whether to impose a penalty; (4) by charging a late renewal
penalty and a civil penalty, the Commonwealth has imposed multiple sanctions for the
same alleged conduct; and (5) the Commonwealth’s exhibits were not admissible or
probative.
10
The Commonwealth Court may reverse or modify the adjudication of a Commonwealth
agency if (i) the adjudication is in violation of constitutional rights, (ii) if it is not in accord with
agency procedure, (iii) if any finding of fact is not supported by substantial evidence, or (iv) if it is
not in accordance with law. Slawek v. State Board of Medical Education and Licensure, 586 A.2d
362, 365 n.4 (Pa. 1991).
7
II. Analysis11
1.
In its first issue, Petitioner contends that Investigator Howard required
written authorization from the Board to investigate the matter and that Investigator
Howard was required to exhibit this written authorization to Petitioner before
beginning the investigation. In support, Petitioner relies on Section 16(a) and (b) of
the Act, governing the retention of written records of sales, which provides:
(a) General rule. -- Every licensee and registrant under this
[A]ct who receives or accepts any property for sale at auction
or sale through an online trading assistant consignment sale
transaction shall maintain a written record which shall
contain the following information, provided that, if the
transaction is being conducted by an auction company or a
trading assistant company, the records shall be maintained by
the auction company or trading assistant company:
(1) The name and address of the seller of the
property to be sold.
(2) A copy of the written or electronic contract
authorizing the transaction containing the terms
and conditions of the transaction or a copy of
the receiving invoice.
(3) A written record of the transaction.
11
The Commonwealth had the burden of proving the violation charged in the Citation. The
degree of proof required to establish a case before an administrative tribunal is preponderance of the
evidence. Lansberry v. Pennsylvania Public Utility Commission, 578 A.2d 600, 602 (Pa. Cmwlth.
1990). A preponderance of the evidence is generally understood to mean that the evidence
demonstrates a fact is more likely to be true than not to be true, or if the burden were viewed as a
balance scale, the evidence in support of the Commonwealth’s case must weigh slightly more than
the opposing evidence. Se-Ling Hosiery, Inc. v. Margulies, 70 A.2d 854, 856 (Pa. 1950). The
Commonwealth therefore has the burden of proving the charges against a respondent with evidence
that is substantial and legally credible, not by mere “suspicion” or by only a “scintilla” of evidence.
Lansberry, 578 A.2d at 602.
8
(b) Inspection of records.-- The records referred to in
subsection (a) shall be open at all reasonable times for
inspection by the [B]oard or any person who is authorized
in writing for that purpose by the [B]oard and who
exhibits the written authorization to the licensee or
registrant before making an inspection.
63 P.S. § 734.16(a)-(b) (emphasis added).
It is Petitioner’s contention that Investigator Howard failed to demonstrate
that he was duly authorized to conduct his investigation because he failed to exhibit
written authorization to Petitioner prior to the investigation and that the fruits of that
alleged illegality, including statements made on the Reactivation Application, should
be suppressed and the matter be vacated and reversed. We find no merit in Petitioner’s
argument.
Contrary to Petitioner’s argument, a plain reading of the actual text of
Section 16(b) does not limit who may conduct investigations and applies specifically
to an auctioneer’s duty to keep records of sales and the inspections of those records.
The requirement to obtain written authorization from the Board and to exhibit this
written authorization to a licensee before making an inspection applies only where the
investigator seeks to obtain the records referenced in Section 16(a), as follows: (1) the
name and address of the seller of the property to be sold; (2) a copy of the written or
electronic contract authorizing the transaction containing the terms and conditions of
the transaction or a copy of the receiving invoice; and (3) a written record of the
transaction. There is no evidence in the record that Investigator Howard requested to
inspect any of the sales records referenced in Section 16(a) during his investigation.
More specifically, his investigation consisted of an interview of Mr. Hostetter, a
subsequent review of Petitioner’s publicly available website, and the gathering of
screenshots of that website. Therefore, Investigator Howard was not required in these
9
circumstances to exhibit written authorization to Petitioner prior to conducting his
investigation into Petitioner’s violations of the Act.
Petitioner next argues that the issuance of the Citation was defective
because the Commonwealth did not demonstrate that Karen Hunter, who issued the
Citation, was authorized to do so. Petitioner argues that if Karen Hunter occupied a
position pursuant to which she was an authorized agent with authority to issue citations,
that information should have been noted on the Citation or introduced into evidence.
Petitioner complains that the only evidence provided on that issue, Exhibit C-6, an
Order by the Commissioner stating that staff (paralegal supervisors, paralegals, and
legal assistants) in the Professional Compliance Office are authorized to issue citations
under 63 Pa. C.S. § 3108(a)(1)(iv) (relating to civil penalties), did not show that Karen
Hunter occupied any of the positions listed in the Commissioner’s Order. In other
words, the Commissioner’s Order only identified by job title those who are authorized
agents. Therefore, according to Petitioner, the Commonwealth failed to prove that
Karen Hunter had authority to issue the Citation. Petitioner further argues that pursuant
to the Board’s regulations found at 49 Pa. Code § 43b.3(a) and (b), only the individual
who conducted the investigation (in this case, Investigator Howard) may issue a
citation. To reiterate, Section 43b.3 of the regulations, states, in relevant part:
(a) Inspections/investigations. Authorized agents may
conduct inspections and investigations for the purpose of
ascertaining compliance with statutory provisions and
regulations of licensing boards and commissions relating to
required licensure and the conduct or operation of a business
or facility.
(b) Citations.
(1) If an inspection reveals a violation of a
statute or a regulation for which a civil penalty
10
has been established under the schedules in this
chapter, the authorized agent may prepare a
citation indicating the violations found and the
penalties imposed. A copy of the citation will be
provided to the respondent.
49 Pa. Code § 43b.3. An “authorized agent” is defined as “[a]n individual authorized
by the Bureau to issue citations in accordance with the [A]ct.” 49 Pa. Code § 43b.2.
63 Pa. C.S. § 3108(a)(1)(iv) provides that “[d]uly authorized agents of the [B]ureau
shall have the power and authority to issue citations and impose penalties for
violations.”
Petitioner suggests that the Board’s regulations at 49 Pa. Code § 43b.3(a)
and (b) must be read together and that this leads to the conclusion that the “authorized
agents” referenced in Section 43b.3(b) (i.e., those authorized to issue citations) must
be the same “authorized agents” referenced in Section 43b.3(a) (i.e., those authorized
to conduct investigations). We find this conclusion can only be reached through an
unduly narrow reading of the regulation, and it is inconsistent with 63 Pa. C.S. §
3108(a)(1)(iv), which broadly provides that “[d]uly authorized agents of the [B]ureau
shall have the power and authority to issue citations and impose penalties for
violations.” See, e.g., Mellott v. Department of Labor and Industry, Bureau of
Occupational and Industrial Safety, 261 A.3d 599, 609 (Pa. Cmwlth. 2021)
(administrative regulations “must be consistent with the statute under which they are
promulgated”).
Section 43b.3(b) of the Board’s regulations allows agents who have been
“duly authorized” by the Bureau to issue citations. There is no further requirement that
the authorized agent be the person who conducted the investigation, and we shall not
insert such language where none exists.
11
Next, in response to Petitioner’s contention that the Commonwealth failed
to prove that Karen Hunter was authorized to issue the Citation, the Pennsylvania
Supreme Court has held that “a prima facie presumption of the regularity of the acts of
public officers exists until the contrary appears.” Hughes v. Chaplin, 132 A.2d 200,
202 (Pa. 1957). See also In Re Smith, 231 A.3d 59, 67 (Pa. Cmwlth.) (2020)
(“government actors are presumed to act legally”), appeal denied, 242 A.3d 1248 (Pa.
2020). Here, Karen Hunter’s issuance of the Citation on a form which, on its face,
issued from the Department of State, created a prima facie presumption that Karen
Hunter was a duly authorized agent with the power and authority to issue a citation.
Accordingly, it was Petitioner’s obligation, in raising the question of the authority of
the individual who issued the Citation, to produce some evidence that it was not issued
by a “duly authorized agent.” Aside from legal argument, which we have just rejected,
Petitioner presented no evidence to suggest that the issuer was not a “duly authorized
agent” as contemplated by 63 Pa. C.S. § 3108(a)(1)(iv). Therefore, the presumption
remains intact because Petitioner, who challenged it, failed to rebut the presumption.
As such, because the Commonwealth demonstrated that Karen Hunter was an agent
duly authorized to issue citations, we reject Petitioner’s claim.
2.
In its next issue, Petitioner argues that the Reactivation Application failed
to warn Petitioner that the admission of licensure violations could result in disciplinary
action, and possible criminal prosecution, and could be used against it in such “quasi-
criminal” proceedings. Petitioner contends that it should have received a “Miranda-
like” warning that any information provided on the Reactivation Application, or
transmitted to Investigator Howard, could be used against it both administratively and
criminally. Therefore, Petitioner posits that neither the Reactivation Application nor
12
any information gathered as a result of statements made on the Reactivation
Application, being the fruit of the poisonous tree, may be properly used to initiate or
prosecute administrative disciplinary proceedings. We find this issue to be without
merit.
In recognizing that the principles surrounding Miranda warnings are well
settled, the Pennsylvania Supreme Court stated as follows: “[t]he prosecution may not
use statements stemming from a custodial interrogation of a defendant unless it
demonstrates that he was apprised of his right against self-incrimination and his right
to counsel. . . . Thus, in criminal cases, Miranda warnings are necessary any time a
defendant is subject to a custodial interrogation.” Commonwealth v. Gaul, 912 A.2d
252, 255 (Pa. 2006) (citation omitted).
Custodial interrogation is defined as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.” Commonwealth v. Cooley, 118 A.3d
370, 376 (Pa. 2015) (quoting Miranda, 384 U.S. at 444). An individual is in custody
if he is “physically denied his freedom of action in any significant way or is placed in
a situation in which he reasonably believes that his freedom of action or movement is
restricted by the interrogation.” Id. (quoting Commonwealth v. Johnson, 727 A.2d
1089, 1100 (Pa. 1999)). Most importantly, the Pennsylvania Supreme Court has held
that Miranda warnings are not required in investigations which are noncriminal in
nature even if the investigation ultimately resulted in criminal prosecution. See
Commonwealth v. Ziegler, 470 A.2d 56, 58-59 (Pa. 1983); Commonwealth v.
McLaughlin, 379 A.2d 1056, 1058-59 (Pa. 1977).
Here, Mr. Hostetter’s admissions on the Reactivation Application, that he
was operating as an auction company on a lapsed license, were not obtained as the
13
result of custodial interrogation. Mr. Hostetter was not in custody when he filled out
Petitioner’s Reactivation Application, and he was not subject to an interrogation at the
time the statements were made. Therefore, Miranda warnings were not necessary.
Moreover, contrary to Petitioner’s argument, it is irrelevant whether administrative
disciplinary proceedings are quasi-criminal in nature because there is no evidence to
suggest that Mr. Hostetter was being questioned by law enforcement officers when he
submitted the Reactivation Application to the Department. Thus, the question on the
Reactivation Application regarding whether Petitioner operated as an auction company
while its license was lapsed did not implicate Petitioner’s Fifth Amendment right
against self-incrimination. Mr. Hostetter’s admission on Petitioner’s Reactivation
Application is not inadmissible on grounds that Mr. Hostetter was not given Miranda-
like warnings on the Reactivation Application.
3.
In its third issue, Petitioner argues that the delegation of the matter to
Hearing Examiner Anderson deprived it of the opportunity to have the Board decide
whether a penalty should be imposed. It contends that Section 20 of the Act affords
the Board discretion in determining whether to impose discipline on the occasion of a
violation of the Act. See 63 P.S. § 734.20 (“the [B]oard may refuse, suspend or revoke
licenses . . . or impose a civil penalty”). As noted, Mr. Hostetter is a sitting Board
member. The appearance of impropriety would have been difficult to avoid had the
Board members reviewed the case, especially given that the Board members serve on
the Board along with Petitioner’s owner. Therefore, all members of the Board
appropriately recused themselves, resulting in the unavailability of any Board members
to hear the matter. We are unable to conclude that the Board acted inappropriately
14
when it delegated this matter to Hearing Examiner Anderson for a final determination
under these circumstances.
Moreover, 63 Pa. C.S. § 3105(a)(2) specifically permits such a delegation,
stating that “[e]ach licensing board and licensing commission shall have the power to
decide if a specific disciplinary matter or type of disciplinary matter is to be heard by
the licensing board or licensing commission itself or by a hearing examiner
appointed under this subsection.” (emphasis added). In turn, 63 Pa. C.S. §
3105(d)(4) of the Act states that “[t]he licensing board or licensing commission shall
render a final adjudication or decision on any exceptions to the decision of a hearing
examiner or any applications for review within 90 days of the filing of the exceptions
or applications, provided that a board or commission may delegate to a hearing
examiner the authority to render a final adjudication or decision in such cases as
deemed appropriate.” (emphasis added). Given that the Board had the express
authority to delegate this matter to a hearing examiner for a final determination and had
a rational reason for doing so, i.e., one of the Board’s members was the owner of the
named party in this matter, the Board’s delegation of the matter to a hearing examiner
was proper. Accordingly, the Board did not commit an error of law in delegating this
matter to a hearing examiner.
4.
Next, Petitioner claims that because he had paid a “late renewal fee” in
addition to a civil penalty for operating on a lapsed license, the $500 civil penalty was
a violation of due process and “the practical equivalent to double jeopardy.”
(Petitioner’s Br. at 37.) We disagree.
15
First, the late renewal fee is authorized by Section 225 of the Bureau of
Professional and Occupational Affairs Fee Acts (Fee Act),12 which provides as follows:
[w]here a license is renewed beyond the date specified for
renewal by the bureau, a fee of $5 for each month or part of
a month beyond the renewal date shall be charged in addition
to the prescribed fee.
63 P.S. § 1401-225. Here, Petitioner’s license lapsed on February 28, 2021, and
Petitioner did not file its Reactivation Application until 12 1/2 months later on March
16, 2022. Therefore, as authorized by Section 225 of the Fee Act, Petitioner was
charged a late fee of $5.00 for each of the 12 months (March 1, 2021, to March 1,
2022), and $5.00 for part of 1 month (March 1, 2022, to March 16, 2022), for a total
late fee of $65.00.
Critically, the civil penalty of $500.00 was imposed, not for the same
conduct (late filing), but for operating an auction company with a lapsed license. The
late fee was also not disciplinary in nature. A civil penalty for operating on a lapsed
license is authorized by 63 Pa. C.S. § 3108(a)(1). The Board’s schedule of civil
penalties located in the Board’s regulations at 49 Pa. Code § 43b.12a sets forth a civil
penalty of $500.00 for a first offense of operating an auction company on a lapsed
license in this Commonwealth in violation of 63 P.S. §§ 734.3(a)(1), 734.5(e), and
734.20(a)(9). Therefore, the fee and penalty were not imposed for the same conduct.
This issue is therefore without merit.
5.
Lastly, Petitioner raises challenges to essentially every exhibit admitted
into evidence. We find them all to be wholly without merit.
12
Act of July 1, 1978, P.L. 700, as amended, 63 P.S. §§ 1401-101 – 1401-501.
16
Petitioner argues that Hearing Examiner Goldhaber committed an error of
law when she admitted Exhibit C-2 into evidence because it constituted inadmissible
hearsay. Commonwealth Exhibit C-2 is a certified attestation from the Board’s
administrator relating to Petitioner’s licensure records. Hearing Examiner Goldhaber
expressly stated in her order that she did not rely upon Exhibit C-2 as a basis for her
order. See Order Upholding Citation, April 28, 2023, at 5, n.7 (“Exhibit C-2 was not
used in the decision of this case.”). Hearing Examiner Anderson also did not rely upon
that exhibit as the basis for his order. Therefore, it is unnecessary for us to address
whether Exhibit C-2 constituted inadmissible hearsay.
Next, Petitioner argues that Exhibit C-3, the Reactivation Application,
was improperly used to prove the truth of the hearsay contained within, i.e., that
Petitioner’s auction company conducted auctions while its license was lapsed. We
disagree.
Pursuant to Pennsylvania Rule of Evidence 803(25), an admission by a
party-opponent is an exception to the rule against hearsay, regardless of whether the
declarant is available as a witness, if the statement is offered against an opposing party
and: (A) was made by the party in an individual or representative capacity; (B) is one
the party manifested that it adopted or believed to be true; (C) was made by a person
whom the party authorized to make a statement on the subject; (D) was made by the
party’s agent or employee on a matter within the scope of that relationship and while
it existed; or (E) was made by the party’s coconspirator during and in furtherance of
the conspiracy. Pa.R.E. 803(25).
Because Mr. Hostetter is Petitioner’s owner and auctioneer of record, Mr.
Hostetter’s statement on Petitioner’s Reactivation Application qualifies as an
admission by a party-opponent, which is an exception to the rule against hearsay. We
17
discern no error in permitting the Commonwealth to use the Reactivation Application
to prove its case.
Petitioner also challenges the Hearing Examiner’s decision to admit
Exhibits C-4 and C-5, the screenshots from Petitioner’s auction website, on the grounds
that they were not authenticated. Again, we conclude the issue to be without merit.
Pennsylvania Rule of Evidence 901(b)(11) requires that the proponent
produce evidence sufficient to support a finding that digital material offered into
evidence is what the proponent claims it to be. Specifically, this rule provides that
(a) In General. Unless stipulated, to satisfy the requirement
of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.
(b) Examples. The following are examples only--not a
complete list--of evidence that satisfies the requirement:
****
(11) Digital Evidence. To connect digital evidence with a
person or entity:
(A) direct evidence such as testimony of a
person with personal knowledge; or
(B) circumstantial evidence such as:
(i) identifying content; or
(ii) proof of ownership, possession,
control, or access to a device or account
at the relevant time when corroborated
by circumstances indicating authorship.
Pa.R.E. 901(b)(11).
18
As set forth in Rule 901(b)(11), digital evidence can be connected with a
person or entity by either direct evidence or circumstantial evidence. In this case, there
is direct evidence connecting Exhibits C-4 and C-5 to Petitioner. During Investigator
Howard’s investigation, he received a business card from Mr. Hostetter, who is
Petitioner’s owner and auctioneer of record. Mr. Hostetter led Investigator Howard
directly to Petitioner’s website when he gave Investigator Howard his business card.
Thus, the direct evidence in this case establishes that Exhibits C-4 and C-5 were
properly authenticated.
Finally, Petitioner argues that Exhibit C-6, the Commissioner’s Order
describing the positions of persons who can issue a citation, was improperly accepted
into evidence because there is nothing in the Order that demonstrates that Karen Hunter
occupies any of the positions described in the Commissioner’s Order. As explained,
because the Citation was issued from the Department of State, this created a prima
facie presumption that Karen Hunter was a duly authorized agent with the power and
authority to issue a citation. Petitioner did not rebut that presumption by baldly
claiming the contrary. Thus, any objection to the admission of Exhibit C-6 is without
merit.
III. Conclusion
For all of the foregoing reasons, the January 2, 2024 final adjudication of
the State Board of Auctioneer Examiners is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherman Hostetter Group LLC, :
Petitioner :
v. : No. 86 C.D. 2024
:
:
State Board of Auctioneer Examiners, :
Respondent :
ORDER
AND NOW, this 29th day of April, 2025, the January 2, 2024 final
adjudication of the State Board of Auctioneer Examiners is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge