*1 оn See, direct of sentence. appeal judgment Commonwealth v. e.g., Hallowell, supra. it bears the rule be- now
Finally, emphasizing for discarded has existed not the benefit ing lazy but incompetent lawyers, protection litigants who been have denied essential elements of may fair and trial. The impartial judicial considerations im- convenience and cited efficiency majority, portant they should in the rare are, give way situa- tion where basic of this sort are in balance. rights Niederman v. Brodsky, A.2d Cf. I believe the doctrine repudiating that, as it to erroneous applies jury instructions, majori- ty has taken is both un- step which unnecessary wise. Eagen
Mr. Justice joins and dis- concurring senting opinion. Examining
State Dental Council and Board Appellant. Pollock, *2 November 1973. Before Jones, C. Argued. J., Nix Pomeroy, O’Brien, Manderino, JJ. Eagen, refused reargument November 1974. H. Jerome with him Gerber, Wid- Handler, Gerber, mer and appellant. Weinstock,
Gerald Gornish, Deputy Attorney him with General, *3 Israel Paokel, Attorney for General, appellee.
William J. Madden, Jr., Dental Pennsylvania Association. by
Opinion Mr. Justice Nix, May 1974: 3, This is from appeal an order of the State Dental Council and Examining Board (hereinafter referred to as Dental Board) suspending L. li- Stanley Pollock’s cense practice dentistry for a period of thirty days. Pollock appealed to the Commonwealth Court which stayed suspension pending outcome of that After appeal. argument re-argument, the Com- monwealth Court was equally divided and affirmed the of the decision Dental Board without opinion on November 1972. 22, We granted allocatur and we now affirm.
Prior its order suspending appellant’s license, held a the Dental Board hearing and arrived at “Stanley L. Pol- pertinent finding following of fact: perform the employ Kletzien a Warren did lock, anesthetics, intravenous of inhalation, administration suturing on tissue of oral [of] teeth, removal being patients Kletzien said in his Warren office, Testimony the hear- duly at . . .” licensed as a dentist. primarily Theo- ing from Dr. from came been a dеntist who had dore Paladino, professional employ alleged of the breach at the time sup- gave testimony would Both men which conduct. finding although port times the number of the Board’s super- performed and the amount of such tasks Kletzien performance during dis- was he received their vision puted. method of select- that the first contends
ing mandated Dental Board members to the April P. L. Act of Administrative Code Pennsylvania §124 P.S. violates the art. IV, §414, legislation prohibitions against special Constitutional delegation gubernatorial ap- (Art. 32) and Sec. Ill, (Art. 8). pointment power conceding While Sec. IV, arguments,1 merit of constitutional the At- these standing challenges appellant’s torney General to raise legitimacy composition the Board’s the issue appeal suspension. of an a license in the context agree Attorney with the General constrained areWe objections may not be that these constitutional raisеd posture appeal. procedural of in the argues members of Commonwealth are de Board officials whose actions are Dental facto *4 they binding by legally are ousted from until office Becognizing quo warranto. that an unlimited action collaterally question right the title office would orderly operation impede government, we have Pennsylvania Dental Association has filed a brief constitutionality of Section 414. support ruled that the official acts one who acts under color of title to an office the same effect given should be as those of a de official. “From an date the jure early appellate courts of this held stead Commonwealth have ‘ ily to the rule that “the acts of de public officers facto, color of coming by or not title, entitled [whether de are jure], good so far respects public, but void when for their own and it benefit”; equally well settled that upon attacks of such right incum bents to must be made serve, by Commonwealth, a direct proceeding and cannot be purpose, made collaterally’: Com. ex rel. v. 294 Pa. Snyder, 559.” Commonwealth ex rel. Palermo v. Pittsburgh, 13 A. 2d 173, 177,
The doctrine from an springs understandable fear of the chaos that would result multiple repeti tious suits challenging action taken every by every official claim whose to office could be open ques tion. “If the question right be may [of office] raised one private suitor it be may raised by all, and the administration of justice would under such circumstances prove failure.” Coyle Common wealth, 104 Pa. (1884). The de doctrine facto seeks to protect public by ensuring orderly functioning the government despite technical defects in title to office.
Initially, attempts to avoid the impact of this principle by phrasing his case as an attack on the office not on the itself, right to hold office. We find it difficult to percеive any substantial difference in the semantic urged. distinction It is apparent appel- lant is a Board challenging action on the grounds that the individuals then composing the Board were not Such a selected. properly challenge falls squarely with- in the de doctrine. facto next argues that the de doctrine facto to form
gives precedence over substance because it
269
appeal
action as an
his
a litigant
labeling
punishes
argument
This
warranto.
quo
rather
than an action
to entertain
if
were
that even
ive
fails
grasp
of
the rationale
procedural posture,
its
issue
present
relief for actions
the de
doctrine would preclude
facto
its
that
determination
taken
the Board
to the
by
prior
like
Quo warranto,
selected.
improperly
members were
a continued
addressed
preventing
injunction,
rather
than
asserted
exercise of authority unlawfully
done under that au-
has
been
already
to correct what
v. Manhattan R.R.
133 (1955); Gardner v. 434 Pa. Repasky, 252 A. 2d 126, 704 (1969); Schlesinger Appeal, 172 A. 2d 835 (1961); Blenko v. Schmeltz, Pa. 67 A. 2d Donnon v. (1949); Civil Downingtown Service Com mission, Pa. Commonwealth Ct. 283 A. 2d (1971). Appellant challenges Board’s partici pation prosecution it recеived Paladino’s *6 complaint, investigated it and then issued a citation. Appellant also the challenges role of the Gen Attorney eral in the drawing up citation, prosecuting the case before the and aiding the Board in Board, drafting the adjudication.
In passing on this we are claim, mindful of the of the United warning States in Supreme Court Murchi son, supra, 349 U.S. at “A 136: fair in trial a fair tri bunal requirement is a basic of due process. Fairness of course requires an absence of actual in bias the trial of cases. But our system law has always endeav prevent ored to even probability of unfairness. To this end no man can a in judge be his own case and no man permitted is cases try where he has an interest in the outcome. . . . This Court has said . . . that ‘every procedure which offer would a possible temptation to . . average judge man as . not to hold the balance clear and true between the State nice, and the accusеd, latter process denies the due of law.’ Tumey v. Ohio, 532.” In applying 273 U.S. Murchison to a disbar stated: predilection ment, court to favor one “[A] side the other is not required over order to vitiate as judical proceeding being violative of due process. ‘a to the possible temptation Merely, average man as a hold the . . . not to balance judge nice, clear and true’ ‘a possible temptation’ is Such sufficient. was implicit before the prosecutor’s proceeding in the own Sub resulted which committee disbarment.” supra, at Schlesinger Appeal, 598. Our task, examine the particular procedures is to therefore, em- was there whether case to determine in this ployed adminis- in this inherent temptation” “a possible such structure. trative details indicate not record does
While Attorney this case, in prosecuting used procedures follows, brief them his has summarized General challenged substantially has and аppellant The was complaint filings. of his in any summary an investi- requested Board who Dental received by Commis- Bureau Enforcement the Law by gation Affairs.3 Occupational of Professional sion then determined Commission of that Office Legal a hear- complaint warranted the investigation in the Of- Legal attorney general an assistant ing heard The Board evidence the citation. fice drafted attorney general assistant presented by its the Board re- After making dеcision, appellant. aid general’s drafting the assistant attorney ceived adjudication. to fulfill both large agencies It not uncommon *7 the and Fed judicial (e.g., the functions prosecutory and the Public Utilities Com eral Commission Trade separated as the functions are ade So mission). long Process is See preserved. generally, Pang Due quately, 2d Cir. and (1st 311 F. C.A.B., 349, 1962) born A there is no Due fortiori, cited therein. Process cases in administrative structure the employed violation handled by both functions were distinct ad where here, no direct affiliation entities with ministrative one by appellant cases cited such as Schle another. The Gardner, supra; Murchison, supra; supra, singer, actually individuals participated the same in where entity is a distinct administrative The Commission under the Department 3, 1963, Pennsylvania of Act of June 63, State. P. L. 1973-4). (Supp. §62, §2, §279.1 P.S. distin- judicial clearly roles are both prosecutory guishable. the administrative claim that
In addition to his on faсe, appellant its used here was unfair structure by citing prejudice to demonstrate actual attempts the General was Attorney letter which inflammatory hear- into evidence at the precluded introducing prose- letter the ing. part He that such was of argues “file” therefore in this case and was available cutor’s support to the There is the record to nothing Board. claim that Board had contact appellant’s any members with the file. It prosecutor’s appears whatsoever of part the letter was not the record the before Board absence actual this information proof had to the members of been transmitted the Board their we prior to will not assume that fact. decision, objection As role Assist- ant General Attorney drafting Board’s order, note that such assistance came after the Board had reached its decision and the assistant in no way partici- pated or influеnced the decision. Board members untrained in likely are to be the law and, for that has legislature required reason, State Depart- of Justice to their legal ment review actions. “Before of any notice to an hearing leading adjudication shall agency submit given, matter to its repre- Department sentative in the of Justice who shall pass proposed upon legality action or defense. agency Failure submit the matter to the De- of Justice shall not partment invalidate any adjudica- Administrative Agency tion.” Law, Act of June 4, P. L. added 1288, §36, 1951, Sept. P. L. While it 71 P.S. §4, would §1710.36. be a better prac- *8 of adjudications have review to tice conducted by an did not participate who in individual the prosecutorial prejudice find no can here role, where the Board independent decision its of reached and prior to any
273 Department from the representative assistance in Process not denied Due of was Appellant Justice. this regard. the citation he re contends next
Appellant
him
notice of
vague
deny
adequate
as to
ceived was so
citation read as
him. The
follows:
against
the charges
did have a Warren
D.D.S.,
L.
Klet
“Stanley
Pollock,
who
such
employ
performed
zien
his
treatment
administration
intravenous
inhalation,
anesthetics,
of oral
tissue
suturing
without
teeth,
removal
as a
Notification must be
dentist;”
given
licensed
being
calculated
a manner
to
reasоnably
give
party
of a
exercise of
proposed
jurisdiction
knowledge
his
defense. Douds v.
prepare
Inter
opportunity
241
Ass’n,
national
F. 2d
Longshoremen’s
(2d
United
Co. v.
Cir.
&
393 F.
States,
2d
1957);
Swift
1968).
(7th Cir.
It
difficult
imagine
citation
have
informed appellant
could
better
of the pre
which his license was
cise acts for
to be challenged.
element was the
missing
dates of
only
the acts
appellant
no bill
requested
alleged
particulars
this information.
N.L.R.B.
See,
ascertain
v. Greater
N. Y.
Corp.,
F. 2d
Broadcasting
(2d Cir.
cert.
February 22, 1971, at until June was hearing postponed of filed December was adjudication request 1971. one’s that a to procedure suspend recognize
We
delay
in nature5 and that
professional
penal
license
matters.
just
of such
tends to frustrate
rеsolution
criminal
demon-
in the context of a
trial,
even
However,
to the accused is
factor
asses-
key
stable prejudice
Barker v.
Process has been violated.
whether Due
sing
While the
this
(1972).
delay
Appellant Board’s finding fails to (p. 2, supra) support license suspension under supra. the Dental The statute Law, provides for sus- for “. pension or revocation . . a violation of of any or provisions act; of this of fraudulent or unlawful fraudulent, or or practices, misleading deceptive reprе- or unprofessional of sentations; conduct, detrimental or to the dangerous public health, safety, morals or or gross or wilful welfare; malpractice or neglect; . . Dental supra, .” Law, 63 amended, P.S. (i). §122 does nor could he not, successfully, argue an unlicensed that permitting individual to practice not constitute a dentistry would violation of the act.6 5 Osteopathic Board Berberian, State Examiners v. Dauph 79 Superior (1962), aff’d Pa. 200 Ct. in 297 A. 190 2d 330 violates the statute in at ways. Suсh action least two First, public on members expect fraud it is a who pay Ferry, Pa. Board Education State Medical See, The sole 2d 121 (1953). Ct. A. Superior Pa. there sufficient evi- then whether was issue becomes that appellant the Board’s support finding dence dentistry. Kletzien to permitted practice Regula- In the Board has regard, promulgated tion a dentist to: permitting VI delegate competent auxiliary per-
“. . . dental *10 the dentist exercises procedures sonnel those which and full as supervision responsibility except direct follows: procedures Those which require professional
“1. and skill such as and treatment diagnosis judgment and the of hard cutting soft planning tissues or and/or which intraoral would lead to the any procedure fabrication of an when appliance which, worn by the come in direct contact with hard or patient, would soft tissue and which could result tissue irritation or injury.
“2. Those allocated procеdures Dental Law dental hygienists.” to registered (Emphasis added.) assumes that of list non-delegable func- in the is intended be regulation tions and exhaustive, complained he that actions argues of here (remov- and ing teeth, suturing, administering are anesthetics) list. The not on the clear wording of the Regulation the procedures that indicates listed are only intended of examples procedures requiring professional as judg- an and skill. Such interpretation ment is further sup- list of hypоthetical aby questions ported and answers Regulation following concluding with an address Second, a licensed dentist. of practice the services unlicensed (Dental dentistry Law, supra, §10, a crime is amended, of as 63 P.S. abetting practice aiding such §129) or and would also have been 1939, of Act Code of June Penal crime. a P. L. §5105. P.S. amended con- a licensee can further advice which obtain au- of of delegation cerning legality particular thority. any of delegation thus regulation prohibits skill. professional
procedures requiring judgment In an did effort to show that Kletzien’s activities some evi appellant fall introduced category, safely dence that are paramedical personnel capable done Kletzien had administering that anesthetics, so armed The Board that while services. found permitted had Kletzien dentistry to practice an finding implies improper such delegation adjudication duties. While the does not specifically mention assume that Regulation VI, must Board’s was to the effect finding procedures Kletzien performed by required professional judgment and skill.7 The to be meaning given terms art agency regulation particularly within compe W. J. Dillner agency, Co. see, tence Transfer Penna. P.U.C., Superior v. Ct. A. 461, 107 2d 159 349 U.S. appeal dismissed, Schu (1954); (1955); man 219 F. 2d Cir. Nelson, (3d Co. and it 1955), *11 of our over-reaching would be gross competence an court on appellate exрertise rule, record, Kletzien performed that the actions which were per Regulation missible under VI. asserts if
Alternatively, his conduct that the it Regulation, is abuse falls within of police the State Board to prohibit for dentists power from 7 argues that the explicitly failure of the Board to regulation adjudication their renders the mention invalid. The findings explicit of fact and made conclusion Board of law in ac Agency Act, supra, Administration §34, the with cordance 71 P.S. findings noted those have As we were §1710.34. tantamount to a Regulation finding had been violated. that doWe not find the regard. adjudication in this deficient
277 hiring qualified paraprofessionals perform the tasks question. argues nothing He there is related public safety prevent health or welfare which would performing a trained from technician these tasks. He argues shortage of the of trained further, view personnel, medical it is unreasonable to restrict so severely delegаte. the functions that a dentist can How virtually as we have ever, record is barren noted, support of evidence to such a claim. It is not our weigh function to such technical matters the ab long stract. “So as there for record warrant judgment expert body it must stand. . . . ‘The judicial function is exhausted when there is found to approved be a rational basis the conclusions ” body.’ Corp. administrative Rochester Tel. v. United (1939). U.S. On this record, we States, say regulation cannot reasonably that this is not re public safety. lated to the welfare and health, See, Optometrical Harris State Board Examiners, 287 (1926). Pa. 135 A. regulation
Moreover,
does not violate the rule
Pennsylvania
Pharmacy
State Board
v. Cohen,
292 A. 2d
Since it is clear
procedures involving professional
that all
judgment
just
examples,
skill,
those listed as
are non-
delegable,
regulation
distinguished
can be
the statute in Cohen which listed
“hereby
thirteen acts
grossly unprofessional
deсlared to constitute
conduct of
pharmacist.”8
it was
There,
admitted that Cohen
performed
had not
one of the thirteen
acts,
held that it would be
person
unfair to allow a
to be
charged with misconduct for an act not specifically
legislative
where
described
purported
enactment
type
prohibited
in detail
enumerate
conduct.
*12
September 27, 1961,
Act
P. L.
(a) (9),
§5
63 P.S.
§390-5(a) (9).
(“procedures
in the regulation
The standard
used
when
skill”)
which require professionаl
judgment
practitioner
the
gives
supplemented by
examples,
of procedures
nature and quality
notice of the
adequate
the statute
not be
Unlike
may
delegated.
only by
actions
specific
lists
Cohen,
regulation
. .
the potential
and does not: “.
lull
way
example
him
giving
defendant
into a false sense of security,
suspect
no reason even to
that conduct
outside
clearly
of the
as
will be
scope
retroactively
statute
written
judicial
within it
aсt of
construction.”
brought
by
Mr. Justice took no the decision Robebts of this case.
Dissenting Opinion Mr. Justice Mandebino: I appellant must dissent. The has raised several questions concerning constitutionality statute which establishes the State Dental Board and the Attor- conceded that General has there ney is merit to the challenge. The majority, however, improp- concludes that erly appellant does not have stand- to raise issue ing statute’s constitutionality. under majority’s holding, rubric of standing, process due deprives of law. The rule the same effect to the gives which acts of de facto to the given as that acts officials of de jure officials in cases only where thе apply should acts of the de final are before they officials are facto challenged and *13 the citizen the constitutional challenging authority the officials has waived his to raise that right issue.
In this case the appellant raised the issue of the statute’s his before unconstitutionality during hearing the Dental Board. The Board’s actions were thus not final and the did not waive his to chal- right the de lenge jure authority of Board. The appellant had standing and constitutional issue raised re- quires a reversal.
In Re: Recount Ballots.