Hartman v. Commonwealth, State Board of Optometrical Examiners

71 Pa. Commw. 110 | Pa. Commw. Ct. | 1983

Opinion by

Judge Blatt,

Raymond M. Hartman, O.D., (appellant) appeals here from tbe 90-day suspension of bis optometry license based on two violations of tbe Optometry Act¹ (Act), namely tbe use of misleading advertising to tbe detriment of tbe general public and tbe failure to live up to tbe advertisements or make full refunds as guaranteed.

The facts may be briefly stated. Pursuant to complaints received by tbe Bureau of Professional and Occupational Affairs, tbe appellant was cited for numerous violations of tbe Act. At a bearing held before tbe State Board of Optometrical Examiners (Board), three of bis former patients testified that be bad made but failed to honor certain guarantees concerning tbe fit of their contact lenses. They testified that they bad first become aware of tbe appellant’s services through local newspaper advertisements, one of which guaranteed a “scientific fit”, while another stated “ask about our unconditional guarantee.” They said that the appellant also explained to them personally that the unconditional guarantee included refunding their money if they could not wear the contact lenses. Upon experiencing great difficulty with the lenses, they asked him to refund their money, hut he refused.

In appeals from the Board, our duty is to affirm its decision unless we find that it violates the appellant’s constitutional rights, that it is not in accordance with law, or that any of the necessary findings of fact are unsupported by substantial evidence. Chaby v. State Board of Optometrical Examiners, 35 Pa. Commonwealth Ct. 551, 386 A.2d 1071 (1978).

Hartman’s first contention on appeal is that the Board abused its discretion in finding the testimony of the three patients more credible than his. He further argues that the Board should have accorded more weight to the fact that two of the patients were longtime friends, and that one of the two was at that time trying to collect a judgment from him.² It is axiomatic, however, that matters of credibility and evidentiary weight are within the exclusive discretion of the factfinder below, and are not within our scope of review. Carr v. State Board of Pharmacy, 48 Pa. Commonwealth Ct. 330, 409 A.2d 941 (1980). Furthermore, the Board, after specifically considering the evidence offered here by the appellant, concluded that the “patients’ testimony was the most credible.” Such a conclusion is well within the province of the Board. Id.

Hartman next contends that his dne process rights were violated because of the commingling of prosecutorial and adjudicatory functions. He argues that both the Assistant Attorney General who prosecuted the case and the Assistant Attorney General who was Counsel to the Board were attached to the Bureau of Professional and Occupational Affairs, and that this constituted a violation of his rights. In Pennsylvania Human Relations Commission v. Thorp, Reed & Armstrong, 25 Pa. Commonwealth Ct. 295, 361 A.2d 497 (1976), we clearly held that this situation is not per se a violation of due process. And, as we recognized in Bruteyn Appeal, 32 Pa. Commonwealth Ct. 541, 380 A.2d 497 (1977), the Thorp case “turned on the fact that there was no actual prejudice rendering the hearing constitutionally infirm”. (Emphasis in original.) Two factors which we considered relevant in a similar case included inter alia, (1) a determination of whether or not anything in the record indicated improper commingling of the functions on the part of the two Assistant Attorney Generals, and (2) whether or not either is disclosed as having concerned himself with the other’s activities. Northeast Dodge Co. v. State Board of Motor Vehicle Manufacturers, Dealers Salesmen, 54 Pa. Commonwealth Ct. 182, 420 A.2d 771 (1980). After a close examination of the record, however, as well as of the 96 findings of fact, we must conclude that there is no evidence here of any violation of due process. We note that, not only does the record fail to reveal any improper commingling of the functions on the part of the two Assistant Attorney Generals, but that their own sworn testimony supports the conclusion that neither of them concerned himself with the activities of the other. They have not discussed any substantive issues in the case and neither has had access to the other’s files. Moreover, after reviewing the testimony concerning any procedural communications³ between the Prosecutor and the Counsel for the Board, we are convinced that these communications were impartial and relevant to the proper handling of this case. Obviously, not every communication between the Prosecutor and the Counsel for the Board results in an improper commingling of prosecutorial and adjudicatory functions, and where, as here, the communications were strictly impartial and administrative in nature, there was no denial of due process.

We will, therefore, affirm the order of the Board.

Order

And Now, this 11th day of January, 1983, the order of the State Board of Optometrical Examiners in the above-captioned matter is hereby affirmed.

2 Inasmuch as all of the appellant’s earnings and property belong to an organization called the Basic Bible Church of America, Inc., P. O. Box 61, Cayman Islands, British West Indies, the patient, Ms. Pletz, had been unable to collect the $488.75 judgment awarded by the Court of Common Pleas of Beaver County in a civil action which she brought against Hartman.

3 These communications included (1) a motion for request to close discovery filed by the Prosecutor, a copy of which was sent to Hartman, (2) a communication from Counsel to the Board to the Prosecutor informing him that she had received a phone call from Hartman to the effect that he was represented by legal counsel, and (3) an oral communication from the Prosecutor to the Counsel for the Board opposing Hartman’s request for a continuance, which communication had previously been conveyed to counsel for Hartman,