decided: December 17, 1976.
STATE DENTAL COUNCIL AND EXAMINING BOARD
JEROME FRIEDMAN, D.D.S., APPELLANT
Appeal from the Order of the State Dental Council and Examining Board, in case of In the Matter of the Suspension or Revocation of the License to Practice Dentistry, License No. 13532, issued September 10, 1956 to Jerome Friedman, D.D.S., dated December 29, 1975.
Joel Harvey Slomsky, for appellant.
Lawrence Alexander, Assistant Attorney General, with him Charles L. Ford, Chief Counsel, Bureau of Professional and Occupational Affairs, and Robert P. Kane, Attorney General, for appellee.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.
[ 27 Pa. Commw. Page 547]
Jerome Friedman, D.D.S. (Friedman) has, by his appeal from an order of the State Dental Council and Examining Board (Board) suspending his license to practice dentistry for three months, raised a question of first impression for this Court. The question involves the use in a subsequent administrative proceeding of a plea of nolo contendere.
[ 27 Pa. Commw. Page 548]
Charged with 23 counts of mail fraud,*fn1 Friedman entered a plea of nolo contendere on February 28, 1975. In early May of 1975, Friedman received notice that pursuant to Section 3 of The Dental Law*fn2
[ 27 Pa. Commw. Page 549]
(Act) the Board would conduct a hearing in accordance with the Administrative Agency Law*fn3 (Agency Law) to determine whether his license to practice dentistry should be suspended or revoked. At the July 1, 1975 hearing, Friedman argued, inter alia, that a plea of nolo contendere cannot be used against a defendant in any subsequent civil suit and, therefore, his plea was inadmissible in the license proceeding. Nevertheless, the Board admitted a certified copy of the docket entry of his plea and thereafter decided to suspend Friedman's license for three months. He appealed.
Before this Court, Friedman raises the same contention, adding that, because the Board based its decision solely on his plea, its adjudication was not based on substantial evidence.*fn4 We disagree and affirm the Board's order.
The leading case in this Commonwealth on the nature of a plea of nolo contendere is Commonwealth v. Ferguson, 44 Pa. Superior Ct. 626 (1910). In Ferguson, a criminal case, President Judge Rice stated:
A plea of nolo contendere, when accepted by the court, is, in its effect upon the case, equivalent
[ 27 Pa. Commw. Page 550]
to a plea of guilty. It is an implied confession of guilt only, and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such plea as well as upon a plea of guilty. But there is a difference between the two pleas in that the defendant cannot plead nolo contendere without the leave of the court. If such plea is tendered, the court may accept or decline it in its discretion. . . . This is the generally accepted view in the jurisdictions of this country where the practice of entering and accepting such plea is recognized. . . . And it is the view recognized in Pennsylvania: Buck v. Com., 107 Pa. 486. . . .
44 Pa. Superior Ct. at 628-29 (citations omitted).
Therefore, while a plea of guilty is an admission of guilt conclusive in subsequent civil cases concerning the same act, a plea of nolo contendere, when accompanied by a protestation of the defendant's innocence, will not preclude him in a civil action from contesting the facts charged in the indictment. Buck v. Commonwealth, 107 Pa. 486 (1885). Ferguson supports the exclusion of nolo contendere pleas in subsequent civil actions to vindicate individual rights.*fn5
However, we are not here dealing with a civil suit to enforce individual rights. Rather, we are dealing with an administrative agency of the sovereign which seeks to carry out its duty to protect the citizens of the Commonwealth by regulating the conduct of its licensees. It is the interests of many rather than the interests of few which impels the Board.
[ 27 Pa. Commw. Page 551]
It is clear from a reading of Section 3 of the Act that the Board is essentially a watchdog of the dental profession, empowered to maintain the high standards which the people of this Commonwealth have a right to expect from their dentists. These standards are not ethereal but are substantial and practical, dealing as they do with all aspects of professional conduct. Therefore, the Board is entrusted with the power to suspend the privilege of any licensee who has been guilty, inter alia, of a crime or misdemeanor involving moral turpitude. We have no doubt that mail fraud is a crime in which fraud is an ingredient and, therefore, a crime involving moral turpitude.*fn6
We cannot allow a licensee to escape censure simply because he chooses not to contest criminal charges brought against him. We therefore hold that, in order to further the purpose of Section 3 of the Act and thus the interests of the citizens of this Commonwealth, a certified copy of the docket entry of a plea of nolo contendere is admissible in an administrative hearing before the Board as evidence of an admission of guilt of a crime or misdemeanor involving moral turpitude.*fn7 We hasten to add that such evidence shall not preclude a licensee from introducing other evidence to refute his guilt. Concomitantly, we hold that the order of the Board, based on a plea of nolo contendere, was based on substantial evidence.
We also find Friedman's other contentions to be without merit.
Accordingly, we enter our
[ 27 Pa. Commw. Page 552]
And Now, this 17th day of December, 1976, the order of the State Dental Council and Examining Board, dated December 29, 1975, suspending the license to practice dentistry of Jerome Friedman, D.D.S., for three months, is hereby affirmed.