213 Pa. Super. 63 | Pa. Super. Ct. | 1968
Opinion by
This is an appeal by the Pennsylvania State Board of Podiatry Examiners from an order of the Commonwealth Court directing the Board to accept the application of Sidney J. Lerner, appellee, for registration as a podiatrist. The matter came before the Commonwealth Court on appeal from an adjudication by the Board barring further practice of chiropody, now known as podiatry, by appellee without taking an examination and complying with all other provisions required by the Chiropody Act of 1956, March 2, P. L. 1206, as amended.
On August 27, 1936, after passing the required examination, appellee was licensed to practice chiropody in the Commonwealth by the Pennsylvania State Board of Medical Education and Licensure. Appellee actively practiced chiropody until September 1952. and was registered annually with the Board until that time.
Subsequently, the Legislature enacted the Chiropody Act of 1956.
After a hearing before the State Board of Podiatry Examiners on June 26, 1963, the Board found that appellant was not licensed to practice chiropody or podiatry on December 31, 1956 — the last date under the Act which persons previously licensed could register and be relicensed without taking an examination. In its adjudication of October 21, 1963, the Board concluded: “Sidney J. Lerner is not authorized to practice chiropody, now known as podiatry, and may not be licensed to so practice without taking the examination and complying with all other provisions required by the Chiropody Act of 1956 as amended.” Lerner appealed.
On July 5, 1967, the Commonwealth Court sustained the appeal and directed the State Board of Podiatry “. . . to accept his application for registration and, without examination, issue to him a license to practice podiatry, upon payment of all accrued fees and penalties.” (Emphasis added.) In so determining, Judge Kreider stated for the court: “. . . Lerner was duly licensed by the Commonwealth in 1936 — twenty-seven years before these proceedings began — and was never cited by the Board of violation of any law or regulation. To require him to take another examination after more than a quarter of a century had elapsed would impose a hardship upon him and other professional licensees which we do not believe the Legislature intended.” In a concurring and dissenting opinion, Judge Bowman took issue with what he considered to be the “ultimate impact of the majority opinion” that “an individual having once been issued a license to practice a profession thereby acquires an ab
It is well established that each state may regulate entry requirements in professions which affect the public interest. Dent v. West Virginia, 129 U.S. 114 (1889).
Courts in other jurisdictions have not been in agreement as to whether the state’s police power is properly exercised by a statutory provision preventing a previously licensed practitioner from obtaining a renewal of- a license to practice without examination if the practitioner fails to renew the license within the prescribed period. In State v. Otterholt, 234 Iowa 1286, 15 N.W. 2d 529 (1944), the Iowa Supreme Court held that a chiropractor whose annual license had expired and had not been renewed was entitled, as a matter of right, to have his license renewed and that the privilege to practice granted by the license could be terminated only upon a showing that the licensee had failed to adhere to the professional standards estab
Although divergent in result, both the Otterholt and Fisehwenger cases are in agreement that the validity of the renewal provisions rests upon a finding that the restrictions are reasonable and bear some just relation to the matter sought to be regulated. This question is before us in the instant case.
The Commonwealth has an interest in assuring that the competence of its professionals as established by licensure examinations is maintained. The Podiatry Act of 1956 reflects this interest by requiring that licensed practitioners meet a minimum standard of continuing professional education. Section 9a of the Act,
There is no evidence that the appellee has ever committed any offense which would provide grounds for revocation of his license. Regardless of his competency or failure to engage actively in the practice of podiatry, he would have been entitled to a renewal of his license without examination had he complied with the time provision of §3. The time period for renewal provided in §3 thus bears no reasonable relation to the competency of the licensee, and it is competence
The appellee also argues that the action of the Board of Podiatry Examiners was a denial of due process in that §3 of the Podiatry Act contains no provision requiring that persons previously licensed must receive notice that the application for renewal must be made to the Board prior to December 31, 1956, and in that he received no actual notice of this requirement. In light of our holding that the time restriction placed on renewal applications bears no reasonable relationship to a proper exercise of the police power, it is not necessary to reach this issue.
Decision affirmed.
Appellee was also licensed to practice in Florida and did so from 1936 to 1943. He returned to Philadelphia in 1943 and practiced there until 1952.
The affidavit provides: “The filing of an affidavit will exempt practitioners from paying annual registration fees "for thé years in which they did not practice in Pennsylvania.”
Act of March 2, 1956, P. L. 1206, 63 P.S. §42.1 et seq.
The Act was re-enacted and amended by the Act of August 24, 1963, P. Jj. 1199, 63 P.S. §42.1 et seq. and is referred to as the “Podiatry Act of 1956.”
63 P.S. §42.9. Biennial registration, accompanied by a fee of §10., was substituted by tbe Act of August 8, 1961, P. L. 982, §1, 63 P.S. §42.9.
Opinion and Order of the Court of Common Pleas of Dauphin County entered July 5, 1967 at No. 648 Commonwealth Docket, 1963.
Although the Court in Dent concluded that the State of West Virginia was within the scope of its police power in prohibiting the appellant physician from continuing the practice of medicine until he complied with the requirements of the state statute, the case is not controlling here since Dent had never been licensed.
See Forgotson et al., “Licensure of Physicians”, 1967 Washington University Law Quarterly 249 (1967).
For a comprehensive review of “grandfather clauses”, see 4 A.L.R. 2d 670.
Otterholt involved a proceeding to revoke a license on the ground of violations of substantive provisions of the Iowa licensing act. The validity of annual renewal licensing provisions became determinative because the defense rested on the ground that since the license had expired and had not been renewed, the proceedings to revoke were thus moot. Unlike Fisehwenger and the instant case, Otterholt involved annual renewal requirements rather than a “grandfather clause.”
This provision did not form the basis of the Board’s refusal to renew appellee’s license and compliance is not in issue here.
Act of 1957, July 9, P. L. 608, 63 P.S. 436 (Supp.).
Act of 1961, July 19, P. L. 796, 63 P.S. 558 (Supp.).