Felix v. Wax

13 Pa. D. & C.2d 600, 1958 Pa. Dist. & Cnty. Dec. LEXIS 357
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 29, 1958
Docketno. 131
StatusPublished
Cited by3 cases

This text of 13 Pa. D. & C.2d 600 (Felix v. Wax) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Felix v. Wax, 13 Pa. D. & C.2d 600, 1958 Pa. Dist. & Cnty. Dec. LEXIS 357 (Pa. Super. Ct. 1958).

Opinion

Milner, J.,

We have before us for consideration two actions in equity which have been instituted by individual chiropodists and physicians and their respective professional associations to restrain defendant from invading their professions by practicing chiropody and medicine. Defendant is a doctor of chiropractic duly licensed by the Department of Public Instruction of the Commonwealth of Pennsylvania, through its State Board of Chiropractic Examiners. Counsel for the Pennsylvania Chiropractic Association has also entered appearance in the case as amicus curiae, but the association has not entered the case as a party to the action. The issue presented for preliminary determination is whether plaintiffs have standing to maintain this equity action, or whether such action may be maintained only through the Department of Public Instruction, or any of its departmental administrative boards, commissions or officers.

The Act of April 18, 1949, P. L. 492, sec. 1, 71 PS §1036.1, provides as follows:

“The Department of Public Instruction, or any of its departmental administrative boards, commissions, or officers, upon the advice of the Attorney General, may maintain, as hereinafter provided, an action, in the name of the Commonwealth, for an injunction or other process against any person to restrain or prevent his practicing any profession in a public or private capacity, or engaging in any trade or occupation; [602]*602or against any person, copartnership, association, or corporation establishing, conducting, or operating a private school or class without a license, whenever a license to engage in such activity is required by law and such licenses are issued by the Department of Public Instruction.”

Defendant contends that this statute establishes an exclusive procedure for enjoining unlawful practice of a profession, that the standards of professional conduct must be uniformly maintained throughout the Commonwealth and such uniformity may be achieved only by having the standards formulated by the various boards in the Department of Public Instruction.

The important distinction to be borne in mind is that these are not actions to enjoin the practice of chiropractic in an unlawful manner, but actions to enjoin the unauthorized practice of medicine and the unauthorized practice of chiropody. It appears clear that prior to the Act of 1949 a duly licensed member of a profession had standing to invoke the jurisdiction of a court of equity to enjoin the unauthorized practice of his profession by an unlicensed practitioner.

In Childs v. Smeltzer, 315 Pa. 9 (1934), the injunc-tive action was prosecuted by lawyers individually and as members of the committee on unauthorized practice of law of the Philadelphia Bar Association. In Shortz v. Farrell, 327 Pa. 81 (1937), an injunction issued at the instance of attorneys as individuals and representing the Wilkes-Barre Law and Library Association. In Neill v. Gimbel Brothers, Inc., 330 Pa. 213 (1938), the action to enjoin the unauthorized practice of optometry was brought by optometrists, individually and as trustees of the Philadelphia Optometric Association. In Palmer v. O’Hara, 359 Pa. 213 (1948), the action to enjoin the unauthorized practice of medicine was brought by physicians indi[603]*603vidually and as members of the Medical Society of the State of Pennsylvania.

After the adoption of the Act of 1949 the Supreme Court entertained an action to enjoin the unauthorized practice of dentistry which was brought by dentists individually and on behalf of the committee on unauthorized practice of dentistry of the Odontological Society of Western Pennsylvania: Boggs v. Werner, 372 Pa. 312 (1953). Although the Act of 1949 was not interposed as a bar to maintenance of this action we may assume that the Supreme Court was of the opinion that the lower court had equitable jurisdiction in the matter, since the Supreme Court has and exercises the power to raise jurisdictional questions sua sponte. In the Boggs case the very question considered was whether there was equitable jurisdiction in the court. Mr. Justice Allen M. Stearne referred to Mr. Justice (now Chief Justice) Jones’ opinion in Palmer v. O’Hara, supra, as follows, at page 317:

“. . . In the case last cited, Mr. Justice Jones said for the court at p. 227: ‘Equity’s jurisdiction under the Act of June 16, 1836, P. L. 784, 17 PS §41, as amended, to restrain the Secretary of Welfare for the Commonwealth from condoning and encouraging the practice of medicine by persons not licensed under the Medical Practice Act of 1911, as in the instant case, is neither questioned nor open to question. The jurisdiction is invokable on the complaint of a duly licensed member of the profession unlawfully so invaded: Harris v. State Board of Optometrical Examiners, 287 Pa. 531, 534, 135 A. 237. And, that is so notwithstanding a penal remedy is provided for the redress of the offense: . . .’ No valid reason can be found for treating the dental profession differently from those enumerated above.”

The argument that uniformity can be achieved only by having standards declared by the respective pro[604]*604fessional boards in Harrisburg is unrealistic and is not of persuasive merit. Each professional board is composed of members of its own profession and as between different boards there is an undoubted conflict in interest. Thus it is certainly a reasonable expectation that each board will endeavor to expand the scope of its own profession and limit the scope of competitive professions. Indeed it may well be doubted that any board is capable of impartially defining the boundaries of its own or a competitive profession. Disparity in definition will not be created by the various county courts for the simple reason that the Supreme Court of this Commonwealth supplies the desired uniformity of definition as in all other cases.

It must be borne in mind that it has always been held that a professional man has standing to prevent the improper invasion of his profession. We need not, at this time, discuss in any great detail the underlying elements of this right, further than to note that the right to practice a profession is for many equitable purposes a property right; that such injunctive action is in the nature of a suit to restrain improper and unlawful competition; that each professional man bears a responsibility to the public for the proper practice of his profession and that suit to enjoin improper professional practice is a proper effort to enjoin a public nuisance.

We would require a clear legislative mandate before we would deem such standing to have been abrogated. The improper and unlawful practice of a profession is necessarily and initially a local problem, and fellow local practitioners are looked to for superintendence of their practice. There is an increasing and undesirable tendency, in government, particularly in administratively-governed matters, to commit individuals to the seat of government for redress. Such procedure [605]*605aids in the destruction of the substantive right because it requires the individual to be heard far from his home, it increases the expense of the proceeding and tends to deprive him of local'counsel of his free choice. We are therefore of the opinion that from the viewpoint of desirability it should be held that the local county court has jurisdiction of such action.

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13 Pa. D. & C.2d 600, 1958 Pa. Dist. & Cnty. Dec. LEXIS 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felix-v-wax-pactcomplphilad-1958.