Shor v. Dickey

21 Pa. D. & C. 695, 1934 Pa. Dist. & Cnty. Dec. LEXIS 199
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedOctober 3, 1934
StatusPublished

This text of 21 Pa. D. & C. 695 (Shor v. Dickey) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shor v. Dickey, 21 Pa. D. & C. 695, 1934 Pa. Dist. & Cnty. Dec. LEXIS 199 (Pa. Super. Ct. 1934).

Opinion

Wickersham, J.,

Briefly stated, the plaintiff in his bill of complaint alleges that he is engaged in the practice of dentistry in this Commonwealth and has been so engaged for 23 years last past; that he graduated from the Medico-Chirurgical College of Philadelphia, receiving the degree of doctor of dental surgery, and was duly licensed by the then Dental Council of Pennsylvania to practice dentistry in this State in 1911; that he has at the present time 14 dental offices in 8 counties in the State of Pennsylvania; that the dental offices owned by him in the said 8 counties have been conducted by him for many years prior to the enactment of The Dental Law of May 1, 1933, P. L. 216; that he has invested in said profession the accumulated savings of a lifetime; that he has expended large sums of money for dental equipment, dental appliances, and apparatus to equip said offices; that pursuant to the Act of May 7,1907, P. L. 161, he has caused his dental license granted by the State Dental Board to be registered by the prothonotary of the court of common pleas of one county in which he has a dental office, as required by said act and supplements, and, in addition, in each of the counties in which he has a dental office, and that the dentists assisting him in his dental offices are all duly [696]*696licensed by the State Dental Council and Examining Board; that the State Dental Council and Examining Board, acting through Robert W. Semenow, Esq., contends that a licensed dentist in the State of Pennsylvania, under said Act of 1933, is permitted to have but one dental office, that to operate more than one dental office constitutes an offense, and that plaintiff’s conduct in owning and operating more than one dental office is a civil and criminal violation of said Act of 1933, and that the State Dental Council and Examining Board is threatening to institute proceedings under the said dental act against the plaintiff.

Plaintiff’s bill raises constitutional questions which will be hereafter discussed. He prays for equitable relief.

Upon presentation of plaintiff’s bill in equity, the court granted a rule to show cause why a preliminary injunction should not issue.

The Commonwealth filed an answer raising preliminary objections as follows:

“1. The bill sets forth no cause of action.
“2. The bill sets forth no ground for equitable relief.
“3. The bill prays for a decree giving a declaratory interpretation of an act of assembly.
“4. The bill prays for a declaratory decree without alleging an existing controversy or threatened controversy entitling the plaintiff to equitable relief.
“5. The bill does not allege that the defendants by action of the entire board or a majority thereof have made any complaint against plaintiff, or served a written copy of such complaint on plaintiff, or fixed any time and place for hearing, or given plaintiff notice of any proceedings for revocation of his license, or that defendants have done any of the acts or begun any of the proceedings prescribed by the Dental Law of 1933 for revoking plaintiff’s license.
“6. The bill seeks to restrain defendants from exercising discretionary powers vested in them by the laws of this Commonwealth.
“7. The Dental Law of 1933 provides for persons aggrieved by action of the State Dental Council and Examining Board a plain, adequate, and complete remedy by appeal to the Court of Common Pleas of Dauphin County and from that court to the Superior Court. There is no jurisdiction in this court to entertain this bill where such a remedy is provided.
“8. The Dental Law of 1933 provides an exclusive remedy for persons aggrieved by action of the State Dental Council and Examining Board in suspending or revoking licenses. There is no jurisdiction in this court to entertain this bill where such a remedy is provided.
“9. The bill does not allege any community of interest among plaintiff and other persons practicing dentistry in the State of Pennsylvania sufficient to permit this court to entertain this bill as a class bill.”

The defendants contend that this case does not come under article v, sec. 20, of the Constitution, and the various acts of assembly conferring equity jurisdiction in ten specific classes and one general class which is as follows: “and in such other cases, as the said courts have heretofore possessed such jurisdiction and powers, under the constitution and laws of this commonwealth”: Act of June 16, 1836, P. L. 784, sec. 13. In support of this contention they rely upon Wilson v. Blaine et al., 262 Pa. 367, Hogsett et al. v. Thompson et al., 258 Pa. 85, Davis v. Gerhard, 5 Whart. 466, and the Constitution of 1874.

In the cases relied upon by the Commonwealth, it has been held that courts of equity in this State have no jurisdiction save that expressly conferred upon them. In Wilson v. Blaine et al., supra, an effort was made to contest the result of an election held to determine whether or not the debt of a municipality may be increased. It was held:

[697]*697“As the Act of April 20,1874, P. L. 65, provides no method for contesting the result of an election on the question of an increase of a municipality’s indebtedness, there can be no contest thereof.
“The judgments and decrees of the courts in such proceedings cannot be collaterally reviewed by proceedings in equity.”

In Hogsett et al. v. Thompson et al., supra, it was held:

“The jurisdiction given to a court of equity by the statutes for the prevention or restraint of the commission of acts contrary to law and prejudicial to the rights of individuals was never intended to be used to obstruct the collection of debts. It is only where the creditor is clearly and undeniably proceeding against right and justice to use the process of the law to the injury of another that equity intervenes to stay his hand.
“The supervision and control of partnerships and corporations are recognized heads of equity jurisdiction, but the administration of the affairs of an individual, sui juris and compos mentis, is not; . . .”

In Davis v. Gerhard, supra, it was held:

“The Supreme Court has no jurisdiction of a bill of discovery in aid of a judgment obtained in the District Court for the City and County of Philadelphia”, for reasons given by Huston, J. (see page 470).

In these cases, it will be observed, no constitutional questions were involved.

In reply to this contention, counsel for the plaintiff refers to Chalmers v. City of Philadelphia, 250 Pa. 251, Martin v. Baldy, 249 Pa. 253, Valley Rys. v. Harrisburg et al., 280 Pa. 385, Louis K. Liggett Co. v. Baldrige, Attorney General, et al., 278 U. S. 105, Evans v. Baldrige et al., 294 Pa. 142, Kalman et al. v. Walsh, Director, etc., et al., 355 Ill. 341, 189 N. E. 315, Ramsay v. Shelton et al., 329 Ill. 432, 160 N. E. 769, State Board of Medical Examiners et al. v. Friedman, 150 Tenn. 152, 263 S. W. 75, and Morris et al. v. Board of Pilot Commissioners et al., 7 Del. Ch. 136, 30 Atl. 667.

In Chalmers v.

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Bluebook (online)
21 Pa. D. & C. 695, 1934 Pa. Dist. & Cnty. Dec. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shor-v-dickey-pactcompldauphi-1934.