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STATE DENTAL COUNCIL AND EXAMINING BOARD v. POLLOCK (05/03/74)

decided: May 3, 1974.

STATE DENTAL COUNCIL AND EXAMINING BOARD
v.
POLLOCK, APPELLANT



Appeal from order of Commonwealth Court, No. 1151 C.D. 1971, in case of State Dental Council and Examining Board v. Stanley L. Pollock, D.M.D.

COUNSEL

Jerome H. Gerber, with him Handler, Gerber, Widmer and Weinstock, for appellant.

Gerald Gornish, Deputy Attorney General, with him Israel Packel, Attorney General, for appellee.

William J. Madden, Jr., for Pennsylvania Dental Association.

Jones, C. J., Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Roberts took no part in the decision of this case. Dissenting Opinion by Mr. Justice Manderino.

Author: Nix

[ 457 Pa. Page 266]

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

[ 457 Pa. Page 267]

    following 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. III, Sec. 32) and delegation of gubernatorial appointment power (Art. IV, Sec. 8). While conceding the merit of these constitutional arguments,*fn1 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 warrantor. Recognizing that an unlimited right to question collaterally the title to office would impede the orderly operation of government, we have

[ 457 Pa. Page 268]

    ruled 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 ...


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