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CHRISTIANE TASCHE ULLO v. COMMONWEALTH PENNSYLVANIA (03/12/79)

decided: March 12, 1979.

CHRISTIANE TASCHE ULLO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF NURSE EXAMINERS, RESPONDENT



Appeal from the Order of the State Board of Nurse Examiners in case of In the Matter of the Suspension or Revocation of License No. RN195571, Issued January 22, 1974, to Christiane Tasche Ullo, dated August 16, 1977.

COUNSEL

Robert Lincoln Potter, with him Paul D. Boas, for petitioner.

David F. DeWees, Assistant Attorney General, with him Louis B. Rubin, Assistant Attorney General, and Gerald Gornish, Acting Attorney General, for respondent.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 41 Pa. Commw. Page 205]

This is a petition for review filed by Christiane Tasche Ullo (Petitioner) from the order of the State Board of Nurse Examiners (Board), dated August 16, 1977, suspending her license as a registered nurse for a period of one year.

Petitioner was employed as a staff nurse at Children's Hospital in Pittsburgh, Pennsylvania, from July, 1973, until March, 1975. On November 23, 1974, while assigned to the infant medical and surgical ward, she restarted an infiltrated intravenous infusion on an infant in violation of hospital policy. She was thereupon suspended from work for three days. Then, on March 28, 1975, she forged a physician's name to a patient's medication chart in order to obtain penicillin for a fellow worker. Shortly after this incident, Petitioner was discharged from her position at Children's Hospital. The Acting Director of Nursing at Children's Hospital thereafter informed the

[ 41 Pa. Commw. Page 206]

Board of Petitioner's behavior. During the next several months, further correspondence between these parties concerning both of the above-mentioned events occurred. In October of 1976, the Board renewed Petitioner's license as a registered nurse. She was at that time attached to the nursing staff of Kane Hospital. Subsequently, on February 14, 1977, the Board issued a Citation and Notice of Hearing against Petitioner, charging her with a violation of the provisions of The Professional Nursing Law*fn1 and ordering her to show cause why her license as a registered nurse should not be suspended or revoked. In her answer to this citation, Petitioner admitted all of the allegations, but asserted as an affirmative defense that the Board's delay in instituting the proceedings barred the action. Following a hearing on April 20, 1977, the Board issued its adjudication suspending Petitioner for a period of one year. Thereafter, the present petition for review was filed.

Petitioner argues before this Court, as she did before the Board, that the Board, by delaying for two years before instituting these proceedings, is powerless to suspend or revoke her license. While we in no way condone such administrative delays, we are compelled to conclude that the circumstances surrounding the delay in the instant case did not affect the Board's power to act.

[ 41 Pa. Commw. Page 207]

In support of her contention, Petitioner argues in the alternative that the Board was foreclosed from acting as it did either by operation of the doctrine of laches or on the ground that her right to due process was violated. The reliance on laches is misplaced. Assuming that laches may be asserted as a defense in an administrative disciplinary action (see State Board of Medical Education and Licensure v. Page 207} Schireson, 360 Pa. 129, 61 A.2d 343 (1948); compare Churchill Area School District Appeal, 30 Pa. Commonwealth Ct. 413, 374 A.2d 1000 (1977)), it is at least clear that laches cannot be imputed by the mere passage of time. At the very minimum there must be some showing that Petitioner was harmed by the delay. As will be seen in the ensuing discussion, Petitioner fails to allege that the delay hampered her defense in this action.

To prevail in her assertion that her constitutional rights have been violated, petitioner has the burden of establishing that some harm or prejudice to her interests has been caused by the delay. State Dental Council and Examining Board v. Pollock, 457 Pa. 264, 318 A.2d 910 (1974); State Board of Funeral Directors v. Cieslak, 24 Pa. Commonwealth Ct. 315, 355 A.2d 590 (1976). Petitioner informs us that during the two year period she secured other employment, she was promoted to a supervisory position, and she has invested in an academic program of instruction in nursing. She contends that a suspension of her license to practice nursing, in light of these factors, would seriously prejudice her. We cannot agree that the Board's two year delay in issuing its citation amounts to a violation of Petitioner's constitutional right to due process especially when she does not claim that the delay has affected her ability to defend against the charges. State Dental Council and Examining Board v. ...


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