Appeal, No. 39, March T., 1963, from order of Court of Common Pleas of Dauphin County, No. 73 Commonwealth Docket, 1960, in case of State Board of Osteopathic Examiners of Commonwealth of Pennsylvania v. Dr. Harry S. Berberian, D.O. Order affirmed.
Rudolph A. Chillemi, Assistant Attorney General, and Morris J. Dean, Deputy Attorney General, with them Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.
Laurence H. Eldredge, with him John W. Beyer, and Arnold, Bricker, Beyer and Barnes, for appellee.
Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).
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The license of Dr. Harry S. Berberian to practice osteopathy and surgery was suspended by the State Board of Osteopathic Examiners under that portion of Section 14 of the Act of March 19, 1909, P.L. 46, 63 P.S. 271, as amended, which provides that the Board may suspend the right to practice osteopathy and surgery, inter alia, because of "unethical conduct" on the part of the licensee. The pertinent portion of the section appears in the footnote.*fn1 The court below concluded that the record did not contain substantial and legally credible evidence to justify the factual findings of the Board, and set aside its order. This appeal followed.
[ 200 Pa. Super. Page 535]
On behalf of the appellant three contentions are advanced on this appeal. It is first argued that the meaning of the term "unethical conduct" as used in the Osteopathic Act, supra, is not synonymous with the term "grossly unethical practice" as used in the Medical Practice Act of June 3, 1911, P.L. 639, as amended, 63 P.S. 401 et seq. It is argued secondly that the commission of an act involving moral turpitude may be used as evidence of unethical conduct although no conviction has been had therefor in a criminal proceeding. Finally, it is argued that the Board did have substantial and legally credible evidence to support its findings.
In limine, certain incidental matters should be noted. (1) Section 14 of the statute expressly provides that the respondent shall be furnished "with a copy of the complaint". The present action had its inception in a citation, attached to which were certain unsworn statements, some in narrative and some in question and answer form. Although appellee entered an objection to this procedure at the first hearing, the matter was not pressed in the court below. (2) The record reveals an undercurrent of considerable bitterness. The Lancaster Osteopathic Hospital was represented by counsel, and Dr. George C. Wolfe had his personal attorney in attendance. Dr. Wolfe was a defendant in Berberian v. Lancaster Osteopathic Hospital, 395 Pa. 257, 149 A.2d 456, which involved a dispute concerning Dr. Berberian's staff privileges. (3) It was also developed that Dr. Berberian and his wife had been separated for some three years. Several of the Commonwealth's witnesses testified that they were friendly with the wife and sided with her against her husband. Indeed, one witness testified that Mrs. Berberian had threatened: "I made him, I will break him". (4) Appellee's able counsel has devoted a considerable portion of his brief to the constitutional argument
[ 200 Pa. Super. Page 536]
that the term "unethical conduct" does not contain sufficiently clear and definite standards. Although this contention was not advanced in the court below, it may be raised on appeal by the appellee, as distinct from the appellant: Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899. In our view of the case, however, it is unnecessary to pass upon it.
I. Finding no guide posts in the statute or its legislative history, the court below directed its attention to an interpretation of the legislative intent. Legislation of this type is penal in nature and must be strictly construed: Schireson v. Shafer, 354 Pa. 458, 47 A.2d 665. We think the court below properly held that the term "unethical conduct" as used in the statute must be limited to the doctor-patient relationship. In Pennsylvania State Board of Medical Education and Licensure v. Ferry, 63 Dauphin County Reports 243, the court below was called upon to interpret the term "grossly unethical practice" as used in Section 12 of the Medical Practice Act of 1911. In holding that this term referred to the practice of medicine and surgery, the court below made the following pertinent statement: "The phrase 'grossly unethical practice' can only be considered as signifying those breaches of the trust, confidence and reliance, necessarily attendant upon the intimate relationship of physician and patient, which amount to gross abuses of the standards of professional conduct generally recognized as essential to the proper practice of medicine and surgery". This language was quoted with approval in our opinion affirming the decision of the court below. ...