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HOWE ET AL. v. SMITH. (04/14/64)

April 14, 1964

HOWE ET AL., APPELLANTS,
v.
SMITH.



Appeal, No. 60, March T., 1964, from order of Court of Common Pleas of Dauphin County, Equity No. 2559, No. 544 Commonwealth Docket, 1962, in case of Dr. Joseph W. Howe et al. v. Theodore B. Smith, Jr. et al. Order affirmed.

COUNSEL

Jacob S. Richman, for appellants.

William, M. Gross, Assistant Attorney General, with him Joseph L. Cohen, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for appellees.

W. E. Shissler, with Nauman, Smith, Shissler & Hall, for amicus curiae.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 203 Pa. Super. Page 214]

OPINION BY WOODSIDE, J.

This is an appeal from the dismissal of an amended complaint in equity to enjoin the Secretary of Revenue and his administrative subordinate from refusing to accept certificates from chiropractors concerning the physical fitness of certain motor vehicle operators.

Two duly licensed chiropractors and the Pennsylvania Licensed Chiropractors' Association filed a complaint in equity in the Dauphin County Court of Common Pleas, sitting as the Commonwealth Court. The plaintiffs alleged that the Secretary of Revenue and the other defendants have unlawfully discriminated against licensed chiropractors by refusing to accept their certificates of the physical fitness of fitness of their patients.

The Attorney General filed preliminary objections in the nature of a demurrer. The court below accepted the Attorney General's contention that the amended complaint did not set forth a cause of action and dismissed it. The plaintiffs appealed, contending that we

[ 203 Pa. Super. Page 215]

    should remand the case for disposition after hearing, or, at least, permit them to further amend the complaint in order to more clearly, fully and sharply plead the scope of practice of the plaintiffs as authorized by statute and the professional boards' regulations.

Accepting as true all of the facts (but not the conclusions of law and suggested interpretations of statutes) set forth in the amended complaint, we agree with the court below that it does not set forth a cause of action, and that all the facts necessary to a determination of the issue are before us. As we view it, nothing could be gained by the ...


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