HOUSE AMENDED PRIOR PRINTER'S NOS. 1134, 2169 PRINTER'S NO. 2368
No. 987 Session of 1989
INTRODUCED BY HOLL AND STAPLETON, MAY 31, 1989
AS REPORTED FROM COMMITTEE ON PROFESSIONAL LICENSURE, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 26, 1990
AN ACT 1 Establishing the Auctioneer Recovery Fund; and making a repeal. <-- 2 AMENDING THE ACT OF DECEMBER 22, 1983 (P.L.327, NO.85), ENTITLED <-- 3 "AN ACT IMPOSING REGULATIONS AND LICENSING REQUIREMENTS ON 4 AUCTIONEERS, APPRENTICE AUCTIONEERS, AUCTION HOUSES AND 5 AUCTION COMPANIES; IMPOSING POWERS AND DUTIES ON THE STATE 6 BOARD OF AUCTIONEER EXAMINERS; AND MAKING REPEALS," 7 ESTABLISHING THE AUCTIONEER RECOVERY FUND; FURTHER PROVIDING 8 FOR THE DISPOSITION OF FEES; DELETING CERTAIN BONDING 9 REQUIREMENTS; AND MAKING REPEALS. 10 The General Assembly of the Commonwealth of Pennsylvania 11 hereby enacts as follows: 12 Section 1. Short title. <-- 13 This act shall be known and may be cited as the Auctioneer 14 Recovery Fund Act. 15 Section 2. Establishment of fund. 16 There is hereby established the Auctioneer Recovery Fund for 17 the purposes hereinafter set forth in this act. 18 Section 3. Funding. 19 An auctioneer, apprentice auctioneer, auction company or 20 auction house licensee entitled to renew his license on or after
1 February 1, 1991, shall, when so renewing his license, pay in 2 addition to the applicable license fee a further fee of $50 3 which shall be paid and credited to the Auctioneer Recovery 4 Fund. Thereafter, any person, upon receiving his initial 5 auctioneer's license, shall, in addition to all fees, pay into 6 the Auctioneer Recovery Fund a sum of $50. If, at the 7 commencement of any biennial renewal period beginning in 1989 8 and thereafter, the balance of the fund is less than $100,000, 9 the State Board of Auctioneer Examiners may assess an additional 10 fee, in addition to the renewal fee, against each licensee in an 11 amount, not to exceed $25, which will yield revenues sufficient 12 to bring the balance of the fund to $100,000. All said fees 13 shall be paid into the State Treasury and credited to the 14 Auctioneer Recovery Fund, and said deposits shall be allocated 15 solely for the purposes of the fund as provided in this act. The 16 fund shall be invested, and interest and dividends shall accrue 17 to the fund. The bonding requirements of section 13 of the act 18 of December 22, 1983 (P.L.327, No.85), known as the Auctioneer 19 and Auction Licensing Act, shall not apply to a licensee who has 20 paid the required fee into the Auctioneer Recovery Fund. 21 Section 4. Application for recovery from fund. 22 (a) Procedure following judgment.--When any aggrieved person 23 obtains a final judgment in any court of competent jurisdiction 24 against any person licensed under the act of December 22, 1983 25 (P.L.327, No.85), known as the Auctioneer and Auction Licensing 26 Act, upon grounds of fraud, misrepresentation or deceit with 27 reference to any transaction for which a license is required 28 under the Auctioneer and Auction Licensing Act and the cause of 29 action occurred on or after the effective date of this act, the 30 aggrieved person may, upon termination of all proceedings, 19890S0987B2368 - 2 -
1 including reviews and appeals, file an application in the court 2 in which the judgment was entered for an order directing payment 3 out of the Auctioneer Recovery Fund of the amount unpaid upon 4 the judgment. 5 (b) Application requirements.--The aggrieved person shall be 6 required to show: 7 (1) That he is not a spouse of the debtor or the 8 personal representative of said spouse. 9 (2) That he has obtained a final judgment as set out in 10 this section. 11 (3) That all reasonable personal acts, rights of 12 discovery and such other remedies at law and in equity as 13 exist have been exhausted in the collection thereof. 14 (4) That he is making said application no more than one 15 year after the termination of the proceedings, including 16 reviews and appeals in connection with the judgment. 17 (c) Payments from fund.--When there is an order of the court 18 to make payment or a claim is otherwise to be levied against the 19 fund, such amount shall be paid to the claimant in accordance 20 with the limitations contained in this section. Notwithstanding 21 any other provisions of this section, the liability of that 22 portion of the fund allocated for the purpose of this act shall 23 not exceed $20,000 for any one claim and shall not exceed 24 $100,000 per licensee. If the $100,000 liability of the 25 Auctioneer Recovery Fund as provided herein, is insufficient to 26 pay in full claims adjudicated valid of all aggrieved persons 27 against any one licensee, such $100,000 shall be distributed 28 among them in such ratio that the respective claims of the 29 aggrieved applicants bear to the aggregate of such claims held 30 valid. If, at any time, the money deposited in the Auctioneer 19890S0987B2368 - 3 -
1 Recovery Fund is insufficient to satisfy any duly authorized 2 claim or portion thereof, the State Board of Auctioneer 3 Examiners shall, when sufficient money has been deposited in the 4 fund, satisfy such unpaid claims or portions thereof in the 5 order that such claims or portions thereof were originally 6 filed, plus accumulated interest at the rate of 6% a year. 7 (d) Joinder.--Upon petition of the State Board of Auctioneer 8 Examiners, the court may require all claimants and prospective 9 claimants against one licensee to be joined in one action, to 10 the end that the respective rights of all such claimants to the 11 Auctioneer Recovery Fund may be equitably adjudicated and 12 settled. 13 (e) License suspension and reimbursement of fund.--Should 14 the State Board of Auctioneer Examiners pay from the Auctioneer 15 Recovery Fund any amount in settlement of a claim as provided 16 for in this act against a licensee, the license of that person 17 shall automatically suspend upon the effective date of the 18 payment thereof by the State Board of Auctioneer Examiners. No 19 licensee shall be granted reinstatement until he has paid in 20 full, plus interest at the rate of 10% a year, the amount paid 21 from the Auctioneer Recovery Fund. The State Board of Auctioneer 22 Examiners may use any remedy available to it at law or in equity 23 against a licensee or the assets of a licensee in order to 24 reimburse the Auctioneer Recovery Fund for any amount paid from 25 the fund in settlement of a claim against the licensee. 26 (f) Permitted requests.--In order to promote the public 27 safety and welfare and reduce the incidence of transactions 28 leading to claims against the Auctioneer Recovery Fund, the 29 State Board of Auctioneer Examiners may include in its annual 30 budget request, funds for the following purposes: 19890S0987B2368 - 4 -
1 (1) To carry out the advancement of education and 2 research in the auctioneering profession for the purpose of 3 improving the practice of auctioneering in this Commonwealth. 4 (2) To underwrite educational seminars, training centers 5 and other forms of educational projects for the use of 6 licensees for the purpose of improving the practice of 7 auctioneering in this Commonwealth. 8 (3) To sponsor, contract for and underwrite any and all 9 other educational and research projects of a similar nature 10 for the purpose of improving the practice of auctioneering in 11 this Commonwealth. 12 (4) To cooperate with associations of auctioneers and 13 any and all other groups for the enlightenment and 14 advancement of the auctioneer profession in this 15 Commonwealth. 16 Section 5. Repeal. 17 Section 13 of the act of December 22, 1983 (P.L.327, No.85), 18 known as the Auctioneer and Auction Licensing Act, is repealed 19 insofar as it is inconsistent with this act. 20 Section 6. Effective date. 21 This act shall take effect January 31, 1991. 22 SECTION 1. THE ACT OF DECEMBER 22, 1983 (P.L.327, NO.85), <-- 23 KNOWN AS THE AUCTIONEER AND AUCTION LICENSING ACT, IS AMENDED BY 24 ADDING A SECTION TO READ: 25 SECTION 6.1. AUCTIONEER RECOVERY FUND. 26 (A) ESTABLISHMENT.--AN AUCTIONEER, APPRENTICE AUCTIONEER, 27 AUCTION COMPANY OR AUCTION HOUSE LICENSEE ENTITLED TO RENEW HIS 28 LICENSE ON OR AFTER MARCH 1, 1991, SHALL, WHEN SO RENEWING HIS 29 LICENSE PAY IN ADDITION TO THE APPLICABLE LICENSE FEE A FURTHER 30 FEE OF $50, WHICH SHALL BE PAID AND CREDITED TO THE AUCTIONEER 19890S0987B2368 - 5 -
1 RECOVERY FUND, WHICH IS HEREBY ESTABLISHED. THEREAFTER, ANY 2 PERSON UPON RECEIVING HIS INITIAL LICENSE, SHALL, IN ADDITION TO 3 ALL FEES, PAY INTO THE FUND A SUM OF $50. IF AT THE COMMENCEMENT 4 OF ANY BIENNIAL RENEWAL PERIOD BEGINNING IN 1993 AND THEREAFTER, 5 THE BALANCE OF THE FUND IS LESS THAN $100,000, THE BOARD MAY 6 ASSESS AN ADDITIONAL FEE, IN ADDITION TO THE RENEWAL FEE, 7 AGAINST EACH LICENSEE IN AN AMOUNT NOT TO EXCEED $25 WHICH WILL 8 YIELD REVENUES SUFFICIENT TO BRING THE BALANCE OF THE FUND TO 9 $100,000. ALL FEES SHALL BE PAID INTO THE STATE TREASURY AND 10 CREDITED TO THE FUND, AND THE DEPOSITS SHALL BE ALLOCATED SOLELY 11 FOR THE PURPOSES OF THE FUND AS PROVIDED IN THIS ACT. THE FUND 12 SHALL BE INVESTED AND INTEREST AND DIVIDENDS SHALL ACCRUE TO THE 13 FUND. 14 (B) APPLICATION FOR RECOVERY FROM FUND.--WHEN ANY AGGRIEVED 15 PERSON OBTAINS A FINAL JUDGMENT IN ANY COURT OF COMPETENT 16 JURISDICTION AGAINST ANY PERSON LICENSED UNDER THIS ACT, UPON 17 GROUNDS OF FRAUD, MISREPRESENTATION OR DECEIT WITH REFERENCE TO 18 ANY TRANSACTION FOR WHICH A LICENSE IS REQUIRED UNDER THIS ACT 19 AND WHICH CAUSE OF ACTION OCCURRED ON OR AFTER THE EFFECTIVE 20 DATE OF THIS SECTION, THE AGGRIEVED PERSON MAY, UPON TERMINATION 21 OF ALL PROCEEDINGS, INCLUDING REVIEWS AND APPEALS, FILE AN 22 APPLICATION IN THE COURT IN WHICH THE JUDGMENT WAS ENTERED FOR 23 AN ORDER DIRECTING PAYMENT OUT OF THE AUCTIONEER RECOVERY FUND 24 OF THE AMOUNT UNPAID UPON THE JUDGMENT. 25 (C) REQUIREMENTS FOR RECOVERY.--THE AGGRIEVED PERSON SHALL 26 BE REQUIRED TO SHOW: 27 (1) THAT HE IS NOT A SPOUSE OF THE DEBTOR, OR THE 28 PERSONAL REPRESENTATIVE OF THE SPOUSE. 29 (2) THAT HE HAS OBTAINED A FINAL JUDGMENT AS SET OUT IN 30 THIS SECTION. 19890S0987B2368 - 6 -
1 (3) THAT ALL REASONABLE PERSONAL ACTS, RIGHTS OF 2 DISCOVERY AND SUCH OTHER REMEDIES AT LAW AND IN EQUITY AS 3 EXIST HAVE BEEN EXHAUSTED IN THE COLLECTION THEREOF. 4 (4) THAT HE IS MAKING SAID APPLICATION NO MORE THAN ONE 5 YEAR AFTER THE TERMINATION OF THE PROCEEDINGS, INCLUDING 6 REVIEWS AND APPEALS IN CONNECTION WITH THE JUDGMENT. 7 (D) RIGHTS OF BOARD.--THE BOARD SHALL HAVE THE RIGHT TO 8 ANSWER ACTIONS PROVIDED FOR UNDER THIS SECTION, AND SUBJECT TO 9 COURT APPROVAL, IT MAY COMPROMISE A CLAIM BASED UPON THE 10 APPLICATION OF THE AGGRIEVED PARTY. 11 (E) PAYMENTS FROM FUND.--WHEN THERE IS AN ORDER OF THE COURT 12 TO MAKE PAYMENT OR A CLAIM IS OTHERWISE TO BE LEVIED AGAINST THE 13 FUND, SUCH AMOUNT SHALL BE PAID TO THE CLAIMANT IN ACCORDANCE 14 WITH THE LIMITATIONS COMBINED IN THIS SECTION. NOTWITHSTANDING 15 ANY OTHER PROVISIONS OF THIS SECTION, THE LIABILITY OF THAT 16 PORTION OF THE FUND ALLOCATED FOR THE PURPOSE OF THIS ACT SHALL 17 NOT EXCEED $20,000 FOR ANY ONE CLAIM AND SHALL NOT EXCEED 18 $100,000 PER LICENSEE. IF THE $100,000 LIABILITY OF THE FUND AS 19 PROVIDED HEREIN IS INSUFFICIENT TO PAY IN FULL CLAIMS 20 ADJUDICATED VALID OF ALL AGGRIEVED PERSONS AGAINST ANY ONE 21 LICENSEE OR REGISTRANT, SUCH $100,000 SHALL BE DISTRIBUTED AMONG 22 THEM IN SUCH RATIO THAT THE RESPECTIVE CLAIMS OF THE AGGRIEVED 23 APPLICANTS BEAR TO THE AGGREGATE OF SUCH CLAIMS HELD VALID. IF, 24 AT ANY TIME, THE MONEY DEPOSITED IN THE FUND IS INSUFFICIENT TO 25 SATISFY ANY DULY AUTHORIZED CLAIM OR PORTION THEREOF, THE BOARD 26 SHALL, WHEN SUFFICIENT MONEY HAS BEEN DEPOSITED IN THE FUND, 27 SATISFY SUCH UNPAID CLAIMS OR PORTIONS THEREOF, IN THE ORDER 28 THAT SUCH CLAIMS OR PORTIONS THEREOF WERE ORIGINALLY FILED, PLUS 29 ACCUMULATED INTEREST AT THE RATE OF 6% A YEAR. 30 (F) JOINDER.--UPON PETITION OF THE BOARD THE COURT MAY 19890S0987B2368 - 7 -
1 REQUIRE ALL CLAIMANTS AND PROSPECTIVE CLAIMANTS AGAINST ONE 2 LICENSEE OR REGISTRANT TO BE JOINED IN ONE ACTION, TO THE END 3 THAT THE RESPECTIVE RIGHTS OF ALL SUCH CLAIMANTS TO THE FUND MAY 4 BE EQUITABLY ADJUDICATED AND SETTLED. 5 (G) LICENSE SUSPENSION AND REIMBURSEMENT OF FUND.--SHOULD 6 THE BOARD PAY FROM THE FUND ANY AMOUNT IN SETTLEMENT OF A CLAIM 7 AS PROVIDED FOR IN THIS SECTION AGAINST A LICENSEE, THE LICENSE 8 OF THAT PERSON SHALL AUTOMATICALLY SUSPEND UPON THE EFFECTIVE 9 DATE OF THE PAYMENT THEREOF BY THE BOARD. NO SUCH LICENSEE SHALL 10 BE GRANTED REINSTATEMENT UNTIL HE HAS REPAID IN FULL PLUS 11 INTEREST AT THE RATE OF 10% A YEAR, THE AMOUNT PAID FROM THE 12 FUND. 13 SECTION 2. SECTION 13 OF THE ACT IS REPEALED. 14 SECTION 3. SECTION 33(B) OF THE ACT IS AMENDED TO READ: 15 SECTION 33. FEES AND FINES. 16 * * * 17 (B) DISPOSITION.--ALL FEES PAID TO THE BOARD AND ALL FINES 18 COLLECTED FOR VIOLATIONS OF THIS ACT SHALL BE PAID INTO THE 19 [STATE TREASURY FOR THE USE OF THE BOARD TO AID IN THE 20 ADMINISTRATION AND ENFORCEMENT OF THIS ACT] PROFESSIONAL 21 LICENSURE AUGMENTATION ACCOUNT FOR USE BY THE BOARD IN 22 ACCORDANCE WITH THE PROVISIONS OF CHAPTER 3 OF THE ACT OF JULY 23 1, 1978 (P.L.700, NO.124), KNOWN AS THE BUREAU OF PROFESSIONAL 24 AND OCCUPATIONAL AFFAIRS FEE ACT. 25 SECTION 4. SECTION 304 OF THE ACT OF JULY 1, 1978 (P.L.700, 26 NO.124), KNOWN AS THE BUREAU OF PROFESSIONAL AND OCCUPATIONAL 27 AFFAIRS FEE ACT, IS REPEALED INSOFAR AS IT IS INCONSISTENT WITH 28 THIS ACT. 29 SECTION 5. THIS ACT SHALL TAKE EFFECT AS FOLLOWS: 30 (1) SECTION 1 OF THIS ACT SHALL TAKE EFFECT IN 180 DAYS. 19890S0987B2368 - 8 -
1 (2) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT JULY 1, 2 1990. E19L63CHF/19890S0987B2368 - 9 -