decided: May 25, 1978.
ROBERT CHABY, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF OPTOMETRICAL EXAMINERS, RESPONDENT
Appeal from the Order of the State Board of Optometrical Examiners in case of In the Matter of the Suspension or Revocation of the License to Practice Optometry, License No. OEB-3608, issued November 18, 1952, to Robert Chaby, O.D., dated July 15, 1976.
Jerome H. Gerber, with him James L. Cowden, and Handler, Gerber and Weinstock, for petitioner.
Louis B. Rubin, Assistant Attorney General, with him Gerald Gornish, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 35 Pa. Commw. Page 552]
Robert Chaby (Appellant), an optometrist licensed by the State Board of Optometrical Examiners (Board), has appealed from the Board's decision suspending his license for 30 days on the grounds of gross incompetency and misrepresentation in violation of Section 9 of the Act of March 30, 1917, P.L. 21, as amended, 63 P.S. § 237, commonly known as the Optometry Act (Act).
The objectionable conduct giving rise to the issuance of a citation against Appellant concerned his alleged failure to treat properly two patients, Ms. Christine Lannutti and Mrs. Mavoureen Weiss, who had engaged him to prescribe and furnish contact lenses in March, 1974. His prescriptions for lenses were filled by Jay Kornblatt, an optician with whom Appellant shares offices, and neither patient saw Appellant after their initial visit. Sometime in late April, Appellant moved his office from Philadelphia to Doylestown, where he continued to practice without Kornblatt.
When Mrs. Weiss picked up her lenses on March 18, Kornblatt showed her how to insert and remove and care for them. Thereafter, she experienced difficulty in removing the left lens and telephoned the office several times and spoke to Kornblatt. She made an appointment for March 26 but, upon arriving at the office, she found it closed. On March 28, she
[ 35 Pa. Commw. Page 553]
again visited the office and had Kornblatt re-instruct her on removal of the lens. On the evening of April 3, while practicing inserting and removing the lenses, she was unable to remove the left lens, and the eye became bloodshot and puffy. Assuming that Appellant's office was closed, Mrs. Weiss did not attempt to contact him, but went instead to the emergency room at Einstein Hospital where an opthalmologist removed the lens.
On April 15, when Mrs. Weiss and her husband reached Appellant by telephone at home, Appellant offered Mrs. Weiss an appointment; but when the Weisses stated that they were going to complain to the Better Business Bureau and the Board, Appellant withdrew the offer and told the Weisses that he did not want to be bothered with them, and hung up.
Ms. Lannutti, who had worn contact lenses for the preceding five years, picked up her new lenses from Kornblatt on March 8. Several weeks later, her eyes became irritated and she was unable, after repeated attempts, to contact Appellant because his office was closed. She consulted her family physician.
The following week, after Ms. Lannutti was again unsuccessful in her repeated attempts to reach Appellant by telephone, her father went to Appellant's office and found an "out-of-business" sign and a referral telephone number on the door. The telephone number was that of another optician who in turn referred Ms. Lannutti to an opthalmologist for examination. When, after many more phone calls, she finally reached Appellant at his home and told him of her difficulties and her consultations with other physicians, he said, "go to hell," and hung up. Later, however, he offered her an appointment at his new office, but the time conflicted with her work hours and she declined. Appellant agreed to and did, in fact, compensate Ms. Lannutti for the expense she incurred in procuring new lenses.
[ 35 Pa. Commw. Page 554]
The charges against Appellant may be set forth as follows: that when he moved his offices, he failed to make adequate arrangements for the follow-up care of his patients; that after learning of his patients' difficulties, he conducted himself so as to discourage them from seeking his care; and that he failed to advise his patients that Jay Kornblatt was an optician and not an optometrist, and thereby misled them. Appellant argues that, as improper and as unprofessional as his conduct may have been on certain occasions, it does not rise to the level of gross incompetency or misrepresentation and hence did not constitute a violation of the Act. We agree and reverse.*fn1
In appeals from decisions of the State Board of Optometrical Examiners, our duty is to affirm the decision of the Board unless we find that it violates the appellant's constitutional rights, that it is not in accordance with law or that any of the Board's necessary findings of fact are unsupported by substantial evidence. Section 44 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.44. Section 9 of the Optometry Act provides, in pertinent part:
The State Board of Optometrical Examiners . . . may cancel, revoke, or suspend the operation of any certificate by it granted, for any or all of the following reasons; . . . gross incompetency . . . or misrepresentation of the optometrical profession in which untruthful statements are made. . . .
[ 35 Pa. Commw. Page 555]
The clear and unambiguous language of the Act indicates that the offense of misrepresentation requires an actual conveying of false information. There is no evidence in the record that Appellant at anytime represented to either of the complainants or to anyone else that Jay Kornblatt was a licensed optometrist or a physician of any type or that he falsely described the boundaries of the optometrical profession.*fn2 Therefore, to the extent that the Board's adjudication rested upon a finding that Appellant had engaged in an act of misrepresentation, the Board erred.
Addressing the main thrust of the Board's adjudication, we hold that the findings do not support the conclusion that Appellant, by the entire course of his conduct toward the complainants, was guilty of gross incompetency. Nowhere in the Act is the term "gross incompetency" defined, and it must therefore be given its ordinary meaning. Webster's Third New International
[ 35 Pa. Commw. Page 556]
Dictionary (1966) defines "incompetent" as "lacking the qualities (as maturity, capacity, initiative, intelligence) necessary to effective independent action; insufficiency; inadequacy." It defines "gross" as "glaring, flagrant, utter, unmitigated, rank." The Board cited State Board of Dental Examiners v. Savelle, 90 Colo. 177, 8 P.2d 693 (1932), which defined "gross" as being "out of all measure, beyond allowance, not to be excused; flagrant, shameful."
We believe that Appellant's conduct, inexcusably discourteous as it may have been, is not "incompetency." As did the Board, we expressly censure Appellant for his reprehensible behavior. Yet, inasmuch as the legislature has empowered the Board to punish only that behavior which rises to gross incompetency, we must reverse its imposition of sanctions.
And Now, this 25th day of May, 1978, the decision of the State Board of Optometrical Examiners, dated July 15, 1976, suspending Robert Chaby's license to practice optometry for a period of 30 days, No. OEB-3608, is reversed and the suspension is vacated.
Reversed. Suspension vacated.