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 as a Dentist, No. 17028, issued July 17, 1969 to William F. Bruteyn, D.M.D.
Richard S. Friedman, with him John C. Howett, Jr., and Friedman & Friedman, P.C., for appellant.
Melvin R. Shuster, Deputy Attorney General, with him Robert P. Kane, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case. Dissenting Opinion by Judge Crumlish, Jr.
[ 32 Pa. Commw. Page 543]
Dr. William F. Bruteyn has appealed from a decision of the State Dental Council and Examining Board (Board) revoking his license to practice dentistry. He contends that his due process rights to a fair and impartial hearing were violated alleging that both the prosecuting Deputy Attorney General and the Board itself unconstitutionally commingled the investigatory, prosecutory, and adjudicative functions.
These proceedings find their genesis in a complaint filed with the Board December 3, 1973 by the Lancaster County Dental Society charging Dr. Bruteyn with improper advertising and unprofessional treatment of patients.
The Board scheduled an informal meeting with Bruteyn on January 14, 1974, after which an investigation was ordered. The initial investigation was conducted into the allegations presented by the Lancaster County Dental Society. Thereafter, an independent investigation was pursued by Melvin R. Shuster, Deputy Attorney General, and Lawrence Alexander, Assistant Attorney General, which culminated in formal charges and a citation by the Board. Several major allegations of professional misconduct were included: improper use and administration
[ 32 Pa. Commw. Page 544]
of intravenous sedation and general anesthesia; fraudulent advertising; self-administration of drugs; improper delegation of surgical and orthodontic duties to dental assistants; and the false reporting of a crime to law enforcement authorities, thereby evincing moral turpitude.
On September 30, 1975, the Board adjudicated Bruteyn (hereinafter Appellant) guilty on all counts and revoked his license.*fn1
Appellant deems this adjudication suspect on two separate though related grounds. He complains initially that the Board, by issuing the formal charges against him, and by authorizing an investigation into those charges, became so inextricably intertwined with the prosecution that an independent and impartial adjudication into his guilt or innocence became an impossibility. Appellant next asserts that the Deputy Attorney General prosecuting the case before the Board served also as the Board's legal advisor before, during and after the hearing, so tainting the proceedings as to deprive Appellant of his constitutional right to a fair trial. In order to determine the viability of these allegations some further facts are necessary.
As the minutes from the Board's meeting with Appellant on January 14, 1974 indicate, it was the Board which made the initial decision that a complete and thorough investigation be made by the Law Enforcement Division. Upon completion of this investigation the Board forwarded the file on May 13 to the Legal Department with its recommendation that a formal hearing be held.
At the next Board meeting on July 29, a hearing was scheduled for September 24. A citation and notice
[ 32 Pa. Commw. Page 545]
of hearing were prepared, signed by the Board chairman, and forwarded to Appellant.
One of the principals in these prehearing events was Deputy Attorney General Shuster. He had met initially with the Board prior to the January 14 meeting with Appellant to review the file, represented the Board at the meeting, and coordinated the resultant investigation.
The decision to prosecute was ultimately made by the Justice Department, ostensibly by Deputy Attorney General Shuster who informed the Board at its July 29 meeting that a hearing had been scheduled. He then drew up the ...