Goldberg v. Bureau of Professional & Occupational Affairs, State Board of Dentistry

39 A.3d 497, 2012 WL 247653, 2012 Pa. Commw. LEXIS 40

Opinions

OPINION BY Judge

COHN JUBELIRER.¹

Steven B. Goldberg, D.M.D., petitions for review of an adjudication of the Board of Professional and Occupational Affairs (BPOA), State Board of Dentistry (Board), which ordered him to pay a civil penalty of $1,100 for practicing dentistry under a fictitious name without first registering the fictitious name with the Board. Dr. Goldberg contends that he did not use a fictitious name and that the proper name of his professional corporation is not a fictitious name. We affirm.

On August 8, 2009, the BPOA issued an Order to Show Cause to Dr. Goldberg, charging him with ten counts of practicing dentistry under a fictitious name, that of his professional corporation, American Dental Solutions, P.C.,² without registering the corporation’s name as a fictitious name with the Board as required by the Board’s regulation at 49 Pa.Code § 33.202.³ Dr. Goldberg answered the Order to Show Cause, and a hearing was scheduled before a hearing examiner. Prior to the hearing, the parties agreed to stipulate the facts of the case (Stipulation) and allow the matter to be decided on briefs, without a hearing. The parties stipulated that: Dr. Goldberg held a license to practice dentistry, (Stipulation ¶¶ 1, 3); Dr. Goldberg was the owner, sole shareholder, and/or clinical director of American Dental Solutions, P.C., (Stipulation ¶8); American Dental Solutions, P.C., provided and advertised dental services at 11 different locations in the Commonwealth, (Stipulation ¶ 12); and neither Dr. Goldberg nor American Dental Solutions, P.C. applied for a fictitious name permit with the Board, (Stipulation ¶¶ 14-16).

After reviewing the Stipulation and the parties’ briefs, the hearing examiner determined that Dr. Goldberg failed to comply with Section 33.202(b). Because “fictitious name” is not defined in the Dental Law,⁴ the hearing examiner turned to the Fictitious Names Act (Act), 54 Pa.C.S. §§ 301— 332, for guidance. Section 302 of the Act defines a “fictitious name” to be an “assumed name” of a person, i.e., a name other than the “proper name” of that person. 54 Pa.C.S. § 302. Because American Dental Solutions was not Dr. Goldberg’s proper name, the hearing examiner held that it was Dr. Goldberg’s fictitious name and, thus, was required to be registered as a fictitious name with the Board.

In support of this rationale, the hearing examiner noted that Section 10(b) of the Dental Law specifies that “[i]t is unlawful for any person to practice dentistry ... under a name other than that on his or her license.” 63 P.S. § 129(b). In 1996, the General Assembly added Section 3(g.l)⁵ to the Dental Law, authorizing the Board “[t]o receive and record all filings of the names and fictitious names of providers of dental services.” 63 P.S. § 122(g.l) (emphasis added). The hearing examiner noted that Section 3(g.l) made no mention of a professional corporation name. However, because the Business Corporation Law of 1988 authorizes dentists to form professional corporations, the hearing examiner concluded that dentists must be allowed to use the name of their professional corporation.⁶ Reading the Business Corporation Law of 1988 together with the Act and the Dental Law, the hearing examiner con-eluded that when a dentist sets up a professional corporation to handle the business part of his dental practice, the dentist uses a fictitious name.

Because Dr. Goldberg had not obtained a fictitious name permit for American Dental Solutions, the hearing examiner held that Dr. Goldberg violated Section 3(g.l) of the Dental Law and the regulation at 49 Pa.Code § 33.202(b). The hearing examiner recommended that Dr. Goldberg be ordered to obtain a fictitious name permit and to pay a civil penalty of $100 per location, for a total penalty of $1,100, and also recommended that, should Dr. Goldberg fail to obtain a fictitious name permit within 90 days, his dental license should be suspended.

On March 17, 2010, the Board filed a notice of intent to review the hearing examiner’s proposed adjudication and invited the parties to submit exceptions to the hearing examiner’s proposed report. Dr. Goldberg did so.

On August 9, 2010, the Board issued a final adjudication, affirming the hearing examiner’s findings of fact and conclusions of law. The Board explained that the Act advances sound public policy by ensuring that the identity of dentists who do not practice by their “legal names” can be made known to the Board and to the public. However, the Board modified the hearing examiner’s proposed order to omit the requirement that Dr. Goldberg obtain a fictitious name registration permit for American Dental Solutions within 90 days, but upheld the $1,100 civil penalty. Dr. Goldberg petitioned this Court for review.⁷

Before this Court, Dr. Goldberg argues that, because he was providing dental services under the proper name of his professional corporation, he was not providing dental services under a fictitious name. In addition, Dr. Goldberg argues that because he was operating under the name of his own, properly registered professional corporation, he was not violating the public policy concerns supporting the Board’s regulation.

Section 33.202(b)⁸ provides, in relevant part, that dentists who practice under a fictitious name must register the fictitious name with the Board. Because the term “fictitious name” is not defined by the Board’s regulations or the Dental Law, Dr. Goldberg argues, and the Board does not dispute, that it is proper to turn to the definition provided in Section 302 of the Act. Section 302 defines “[factitious name,” in relevant part, as “[a]ny assumed or fictitious name, style or designation other than the proper name of the entity using such name.” 54 Pa.C.S. § 302. Section 302 also defines an “entity,” in relevant part, as “[a]ny individual or any corporation.” Id. Section 302(1) defines the “[p]roper name” of a corporation as the name listed on the corporation’s articles of incorporation. 54 Pa.C.S. § 302(1). Therefore, Dr. Goldberg argues, because American Dental Solutions is the proper name of his professional corporation, it cannot be a fictitious name. However, as Dr. Goldberg acknowledges, “[b]y its terms, § 33.202(b) applies only to dentists who ‘wish to practice under a fictitious name.’ ” (Dr. Goldberg’s Br. at 8 (quoting 49 Pa.Code § 33.202(b)).) Dr. Goldberg, not American Dental Solutions, is the licensed dentist. Dr. Goldberg and American Dental Solutions are separate legal entities, Dr. Goldberg provides services through American Dental Solutions, and it is Dr. Goldberg, not American Dental Solutions, who is engaged in the practice of dentistry. While “American Dental Solutions” is the proper name of Dr. Goldberg’s professional corporation, it is not Dr. Goldberg’s proper name, any more than “Steven B. Goldberg, D.M.D.” is American Dental Solutions’ proper name. When Dr. Goldberg practices dentistry under the name American Dental Solutions, he is practicing under a fictitious name for purposes of Section 33.202(b). Therefore, per Section 33.202(b), Dr. Goldberg must register this name with the Board, even if it is the proper name of his professional corporation.⁹

For these reasons, this Court affirms the Order of the Board.

ORDER

NOW, January 27, 2012, the Order of the Bureau of Professional and Occupational Affairs, State Board of Dentistry, in the above-captioned matter is hereby AFFIRMED.

Footnotes

1

. This matter was reassigned to the authoring judge on August 25, 2011.

2

. Dr. Goldberg incorporated American Dental Services, P.C. in 2002. (Stipulation of the Parties (Stipulation) ¶ 5.) In 2005, the corporation amended its articles of incorporation to change the corporation's name to “American Dental Service, P.C.” (Stipulation ¶ 6.) On September 30, 2009, the corporation amended its articles to change its name to "American Dental Solutions, P.C.” (Stipulation ¶ 7.) For clarity's sake, we will refer to Dr. Goldberg's professional corporation as American Dental Solutions throughout this opinion.

3

.Section 33.202 provides, in relevant part:

(a) Dentists may use a fictitious name that is not false, misleading or deceptive.

(b) Dentists who wish to practice under a fictitious name shall submit to the Board a fictitious name registration and the fee specified in § 33.3 (relating to fees). The dentist who submits the registration shall be associated with the facility and shall assume responsibility for compliance with this section. The owner of the facility, if different from the applicant, shall be identified on the registration.

49 Pa.Code § 33.202(a)-(b).

4

. Act of May 1, 1933, P.L. 216, as amended, 63 P.S. §§ 120-130k.

5

. Added by Act of July 11, 1996, P.L. 657, No. 113, § 1, effective in 60 days. Section 4 of the Act of July 11, 1996, P.L. 657, No. 113, provides that the subsection (g.l) had a retroactive effective date of January 1, 1990.

6

.The Business Corporation Law of 1988 is Subpart B of the Associations Code, which is Title 15 of the Pennsylvania Consolidated Statutes. Section 2903(b) of the Business Corporation Law of 1988 allows "licensed persons to render professional services by means of a professional corporation in all cases." 15 Pa.C.S. § 2903(b).

7

. In reviewing an order of the Board, we are limited to determining whether the findings are supported by substantial evidence, whether constitutional rights were violated and whether errors of law were committed. Mostatab, D.M.D. v. State Board of Dentistry, 881 A.2d 1271, 1273 n. 2 (Pa.Cmwlth.2005).

8

. Section 33.202 is promulgated pursuant to Section 3(g.l) of the Dental Law, which authorizes the Board "[t]o receive and record all filings of the names and fictitious names of providers of dental services.” 63 P.S. § 122(g.l) (emphasis added). As a preliminary matter, we note that Dr. Goldberg makes no argument that the requirements of Section 33.202 are beyond the authority granted to the Board by the Legislature through Section 3(g.l).

9

.Regarding the public policy underlying the applicability of Section 33.202, Dr. Goldberg argues that the applicability of Section 33.202 to the case at bar is a matter of statutory interpretation and that public policy concerns are not relevant where the language of the regulation is clear. We agree and, because we have held that Section 33.202 requires Dr. Goldberg to register American Dental Solutions as a fictitious name with the Board, we need not address this issue. However, insofar as Dr. Goldberg argues that the registration of fictitious names allowed by the Act obviates any public policy concerns behind Section 3(g.l) and Section 33.202, we disagree.

The purpose of Section 3(g.l) and Section 33.202, when read together with other provisions of the Dental Law, appears to be to prevent fraud, confusion, deception, and to help the public and the Board know whether a provider associated with a given fictitious name is properly licensed. Section 10(b) of the Dental Law provides in relevant part that:

(b) It is unlawful for any person to practice dentistry ... under a name other than that on his or her license and biennial renewal, or to practice under the name on his or her license and biennial renewal with any addition thereto, except a purely technical appellation such as "Dentist,” "D.D.S.,” "Orthodontist” or other word or letters pertaining strictly to the practice of dentistry.

63 P.S. § 129(b) (emphasis added). Thus, the legislature has indicated that a dentist, generally, is not to practice under any name but the one on his license. In addition, the Legislature has forbidden dentists from making false representations or engaging in deceptive advertising. Section 4.1 (a)(2), (10) of the Dental Law, 63 P.S. § 123.1(a)(2), (10). When Section 3(g. 1) is read in pari materia with these other provisions of the Dental Law, they indicate a policy decision by the General Assembly that the Board is to receive and record the fictitious names under which dentists might practice in order to keep track of which licensee is practicing under which fictitious name and to guard against fraud, deception, and public confusion.

Section 311 of the Act, 54 Pa.C.S. § 311, provides that fictitious names may be registered with the Department of State. Thus, the most important difference between Section 33.202 and the Act is that registration under the Act is optional. While registration may confer certain benefits and protections on a fictitious name registered by an entity, it does not replace the protections to the public conferred by registration under Section 33.202.