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COMMONWEALTH v. WERNER (03/18/59)

March 18, 1959

COMMONWEALTH
v.
WERNER, APPELLANT.



Appeal, No. 209, April T., 1958, from judgment of Court of Quarter Sessions of the Peace of Allegheny County, June T., 1957, No. 497, in case of Commonwealth of Pennsylvania v. C.A. Werner. Judgment affirmed.

COUNSEL

James F. Callahan, for appellant.

Samuel Strauss, Assistant District Attorney, with him William Claney Smith and E. T. Adair, Assistant District Attorneys, and Edward C. Boyle, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, and Watkins, JJ. (wright, Woodside, and Ervin, JJ., absent).

Author: Gunther

[ 188 Pa. Super. Page 510]

OPINION BY GUNTHER, J.

Appellant, C. A. Werner, was convicted of violating the "Dental Law," the Act of 1933, May 1, P.L. 216, as amended, 63 P.L. 216, as amended, 63 P.S. sections 121 and 129, for engaging in the practice of dentistry without a license. Appellant was a dental technician whose normal occupation consisted of making dental plates and false teeth for dentists as per their requests.

On January 3, 1957, Della R. Schneider appeared at the office of appellant pursuant to an appointment made by telephone and she requested appellant to make her an upper plate. She was sent to appellant by Dr. Robert S. Davis, a retired dentist and an enforcement officer of the Department of Public Instruction, who previously had received information that appellant was practicing dentistry without a license. She testified that she made three calls at appellant's place of business, during which time appellant made an impression of her gums, made a set of dentures and fitted the same. For this service, Werner charged and received the sum

[ 188 Pa. Super. Page 511]

    of $50.00. Pursuant to an arrangement with Dr. Davis, Mrs. Schneider reported back to Dr. Davis the services performed by appellant and the charges made therefor. Pursuant to this information, appellant was indicted and convicted by a jury and was subsequently sentenced to pay a fine of $400.00, the costs of prosecution and undergo imprisonment for five months in the Allegheny County Workhouse. From this sentence an appeal was filed and the court below continued the bond pending disposition of this appeal.

The Dental Law, supra, provides that one who "fits, constructs and inserts any artificial appliance, plate, or denture for the human teeth or jaws or who holds himself ... out as being able or legally authorized to do so" is engaged in the practice of dentistry. Section 11.1, as amended, 63 P.S. 130(b), however, recognizes the right of dental technicians to construct dentures and plates.

The defense in the court below and the sole question raised on this appeal is entrapment. Appellant testified in his own behalf that he did make the teeth as testified to by Mrs. Schneider, but that he did so only because she stated to him that her husband was ill and she could not afford going directly to a dentist. He further testified that at first he refused to treat Mrs. Schneider and advised her to go to a dentist; that she then broke down and became hysterical and that finally he relented and agreed to treat her and fit her with dentures. Mrs. Schneider denied all of these statements by appellant and the court below properly submitted the question of entrapment to the jury since the testimony was in direct conflict.

In Commonwealth v. Kutler, 173 Pa. Superior Ct. 153, 96 A.2d 160, we stated: "'It is well settled that the fact that officers or employees of the Government merely afford ...


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