State Dental Council & Examining Board v. Pollock

318 A.2d 910, 457 Pa. 264, 1974 Pa. LEXIS 839
CourtSupreme Court of Pennsylvania
DecidedMay 3, 1974
DocketAppeal, 2
StatusPublished
Cited by100 cases

This text of 318 A.2d 910 (State Dental Council & Examining Board v. Pollock) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Dental Council & Examining Board v. Pollock, 318 A.2d 910, 457 Pa. 264, 1974 Pa. LEXIS 839 (Pa. 1974).

Opinions

Opinion by

Mr. Justice Nix,

This is an appeal from an order of the State Dental Council and Examining Board (hereinafter referred to as Dental Board) suspending Stanley L. Pollock’s license to practice dentistry for a period of thirty days. Pollock appealed to the Commonwealth Court which stayed the suspension pending the outcome of that appeal. After argument and re-argument, the Commonwealth Court was equally divided and affirmed the decision of the Dental Board without opinion on November 22, 1972. We granted allocatur and we now affirm.

Prior to its order suspending appellant’s license, the Dental Board held a hearing and arrived at the [267]*267following pertinent finding of fact: “Stanley L. Pollock, did employ a Warren Kletzien to perform the administration of inhalation, intravenous anesthetics, removal [of] teeth, and suturing of oral tissue on patients in his office, said Warren Kletzien not being duly licensed as a dentist. . . .” Testimony at the hearing came primarily from appellant and from Dr. Theodore Paladino, a dentist who had been in appellant’s employ at the time of the alleged breach of professional conduct. Both men gave testimony which would support the Board’s finding although the number of times Kletzien performed such tasks and the amount of supervision he received during their performance was disputed.

Appellant first contends that the method of selecting members to the Dental Board mandated by the Administrative Code of 1929, Act of April 9, P. L. 177, art. IV, §414, 71 P.S. §124 violates the Pennsylvania Constitutional prohibitions against special legislation (Art. Ill, Sec. 32) and delegation of gubernatorial appointment power (Art. IV, Sec. 8). While conceding the merit of these constitutional arguments,1 the Attorney General challenges appellant’s standing to raise the issue of the legitimacy of the Board’s composition in the context of an appeal from a license suspension. We are constrained to agree with the Attorney General that these constitutional objections may not be raised in the procedural posture of this appeal.

The Commonwealth argues that members of the Dental Board are de facto officials whose actions are legally binding until they are ousted from office by an action in quo warranto. Becognizing that an unlimited right to question collaterally the title to office would impede the orderly operation of government, we have [268]*268ruled that the official acts of one who acts under the color of title to an office should be given the same effect as those of a de jure official. “From an early date the appellate courts of this Commonwealth have held steadily to the rule that ‘ “the acts of public officers de facto, coming in by color of title, [whether or not entitled de jure], are good so far as respects the public, but void when for their own benefit”; and it is equally well settled that attacks upon the right of such incumbents to serve, must be made by the Commonwealth, in a direct proceeding for that purpose, and cannot be made collaterally’: Com. ex rel. v. Snyder, 294 Pa. 555, 559.” Commonwealth ex rel. Palermo v. Pittsburgh, 339 Pa. 173, 177, 13 A. 2d 24, 26 (1940).

The doctrine springs from an understandable fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question. “If the question [of right to office] may be raised by one private suitor it may be raised by all, and the administration of justice would under such circumstances prove a failure.” Coyle v. Commonwealth, 104 Pa. 117, 130 (1884). The de facto doctrine seeks to protect the public by ensuring the orderly functioning of the government despite technical defects in title to office.

Initially, appellant attempts to avoid the impact of this principle by phrasing his case as an attack on the office itself, not on the right to hold office. We find it difficult to perceive any substantial difference in the semantic distinction urged. It is apparent that appellant is challenging a Board action on the grounds that the individuals then composing the Board were not properly selected. Such a challenge falls squarely within the de facto doctrine.

Appellant next argues that the de facto doctrine gives precedence to form over substance because it [269]*269punishes a litigant for labeling his action as an appeal rather than an action in quo warranto. This argument fails to grasp that even if ive were to entertain the issue in its present procedural posture, the rationale of the de facto doctrine would preclude relief for actions taken by the Board prior to the determination that its members were improperly selected. Quo warranto, like an injunction, is addressed to preventing a continued exercise of authority unlawfully asserted rather than to correct what has already been done under that authority. Johnson v. Manhattan R.R. Co., 289 U.S. 479 (1933).

Finally, appellant argues that the de facto doctrine should not apply to officials who act as finders of fact. The doctrine has been invoked to insulate a wide variety of official duties,2 and absent some showing that the alleged defect in the title to office was germane to the issue of the litigation, other than the authority of the officer to act, we can see no reason why the doctrine should not preclude relief in this case. We need not therefore reach the merits of appellant’s claim that the Dental Board was improperly selected.

Appellant also raises several challenges to the procedures used by the Board. First, he contends that it violates due process to permit the Board and the Attorney General to combine investigatory, prosecutory, and adjudicatory functions. See, In re Murchison, 349 U.S. [270]*270133 (1955); Gardner v. Repasky, 434 Pa. 126, 252 A. 2d 704 (1969); Schlesinger Appeal, 404 Pa. 584, 172 A. 2d 835 (1961); Blenko v. Schmeltz, 362 Pa. 365, 67 A. 2d 99 (1949); Donnon v. Downingtown Civil Service Commission, 3 Pa. Commonwealth Ct. 366, 283 A. 2d 92 (1971). Appellant challenges the Board’s participation in the prosecution in that it received Paladino’s complaint, investigated it and then issued a citation. Appellant also challenges the role of the Attorney General in drawing up the citation, prosecuting the case before the Board, and aiding the Board in drafting the adjudication.

In passing on this claim, we are mindful of the warning of the United States Supreme Court in Murchison, supra, 349 U.S. at 136: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. . . . This Court has said . . . that ‘every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.’ Tumey v. Ohio, 273 U.S. 510, 532.” In applying Murchison

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Bluebook (online)
318 A.2d 910, 457 Pa. 264, 1974 Pa. LEXIS 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dental-council-examining-board-v-pollock-pa-1974.