We, therefore, affirm the determination of the Commonwealth Court in all respects.

Former Chief Justice Zappala did not participate in the consideration or decision of this case.

CONCURRING OPINION BY MR. JUSTICE SAYLOR

I join the majority opinion. With regard to the portion of the Board's order as to auctioneer Khan which was based upon the Virginia consent order, however, I would also credit Khan's argument that the Board's actions are inconsistent with constitutional procedural due process guarantees. In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976), the Supreme Court stated that a due process inquiry requires consideration of, inter alia, the risk that the administrative procedures utilized will erroneously deprive an individual of protected liberty or property interests.

As the majority notes, under the Virginia consent decree, Khan neither admitted to, nor was found guilty of, misconduct. Furthermore, the end result of the Virginia proceedings was not of a nature generally associated with an official determination that the licensee needs discipline: there was no revocation or suspension of the license, or even payment of a fine, but mere reimbursement of administrative costs. The order, then, only provides evidence that allegations of possible misconduct were made and investigated, and that a settlement was reached. Indeed,

[thhere are many reasons why a party may choose not to raise an issue, or to contest an assertion, in a particular action. The action may involve so small an amount that litigation of the issue may cost more than the value of the lawsuit. Or the forum may be an inconvenient one in which to produce the necessary evidence or in which to litigate at all.

RESTATEMENT (SECOND) OF JUDGMENTS, § 27, cmt. e (1982). See generally Matternas v. Stehman, 434 Pa. Super. 255, 267, 642 A.2d 1120, 1125-26 (1994) (observing that a consent order memorializing the parties' agreement provides no basis for determining that any of the underlying issues were settled).

Nevertheless, the Board here applied the same penalty as it does in cases where the out-of-state proceedings resulted in a finding or admission of wrongdoing, or in some form of discipline associated with wrongdoing. In failing to conform the procedure utilized in sanctioning Khan to the particular circumstances involved, the Board's action raised foundational due process concerns, see generally Telang v. Commonwealth, Bureau of Prof! & Occupational Affairs, 561 Pa. 535, 540, 751 A.2d 1147, 1150 (2000) (observing that due process "is not a technical conception with a fixed content unrelated to time, place and circumstances," but is rather "`flexible and calls for such procedural protections as the particular situation demands" (quoting Mathews, 424 U.S. at 334, 96 S. Ct. at 902)), and, in my view, created an undue risk of an erroneous deprivation.

Consequently, both for this reason and for the reasons expressed by the majority, I agree that it was improper for the Board to impose discipline upon Khan based upon the Virginia consent order. In the circumstances involving Khan, I believe there was, in fact, an undue risk of erroneous deprivation.

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