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COMMONWEALTH PENNSYLVANIA v. EDWARD L. CHAIRMAN (09/15/77)

decided: September 15, 1977.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, COMMISSIONER OF PROFESSIONAL & OCCUPATIONAL AFFAIRS, STATE BOARD OF PODIATRY EXAMINERS
v.
EDWARD L. CHAIRMAN, DAVID M. ROSE AND RONALD BRITTNER, APPELLANTS



Appeal from the Order of the State Board of Podiatry Examiners in case of In the Matter of the Suspension or Revocation of the Licenses to Practice as Podiatrists issued to Edward L. Chairman, David M. Rose and Ronald Brittner, dated October 31, 1975.

COUNSEL

Gilbert B. Abramson, with him Philip L. Blackman and Eilberg, Corson, Getson & Abramson, for appellants.

Louis B. Rubin, Assistant Attorney General, with him Gerald Gornish, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Judge Kramer did not participate in the decision. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case.

Author: Mencer

[ 31 Pa. Commw. Page 616]

After an extended investigation by the Department of Public Welfare into three podiatrists' alleged billing irregularities and overzealous toenail care for mental patients, hearings were scheduled to determine whether the podiatrists had violated medical assistance regulations. Thereafter, the State Board of Podiatry

[ 31 Pa. Commw. Page 617]

Examiners (Board) notified the podiatrists that it would conduct a hearing in accordance with the Administrative Agency Law*fn1 to determine whether their professional licenses should be revoked.

At the license hearings which followed, the Board's solicitor*fn2 presented the case for the Commonwealth. In addition, he apparently made evidentiary rulings*fn3 and gave advice to members of the Board.*fn4 It also appears that after the Board had decided to suspend the podiatrists' professional licenses, the solicitor was instrumental in drafting the formal adjudication and order.

[ 31 Pa. Commw. Page 618]

Two of the podiatrists have appealed the suspensions to this Court, contending, inter alia, that they were denied procedural due process by the commingling of judicial and prosecutorial functions.

The basic law of this Commonwealth regarding the denial of due process by the commingling of judicial and prosecutorial functions has been stated in Horn v. Township of Hilltown, 461 Pa. 745, 748, 337 A.2d 858, 860 (1975); the Court quoting from In re Murchison, 349 U.S. 133, 136 (1955):

'A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. . . . This Court has said . . . that "every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the ...


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