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PENNSYLVANIA HEARING AID DEALERS ASSOCIATION v. COMMONWEALTH PENNSYLVANIA (08/18/80)

decided: August 18, 1980.

PENNSYLVANIA HEARING AID DEALERS ASSOCIATION, INC. ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH ET AL., RESPONDENTS



Original jurisdiction in case of Pennsylvania Hearing Aid Dealers Association, Inc. David W. Bennett, George Donnelly and Samuel A. Ragusa v. Department of Health, Commonwealth of Pennsylvania, and H. Arnold Muller, M.D., Secretary of Health.

COUNSEL

James L. Walsh, Melman, Gekas, Nicholas and Lieberman, for petitioners.

Reed Hamilton, Chief Counsel, with him Christine Dutton, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for respondents.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 53 Pa. Commw. Page 496]

The Pennsylvania Hearing Aid Dealers Association, Inc., and three hearing aid fitters (plaintiffs) filed this petition for review in the nature of mandamus, praying this Court to command the Department of Health and the Secretary of Health (Department) to require all physicians and audiologists engaged directly or indirectly in the sale of hearing aids to take and pass an examination as a precondition to selling hearing aids. The Department here raises, by preliminary objection, issues of standing and demurrer for failure to state a cause of action. For reasons which follow, we sustain the demurrer.

Section 301 of the Hearing Aid Sales Registration Law (Act), Act of November 24, 1976, P.L. 1182, 35 P.S. § 6700-301, provides for two types of registration certificates: (1) a certificate for a "hearing aid fitter" for those persons engaged in the practice of fitting and selling hearing aids*fn1 and (2) a certificate for a "hearing

[ 53 Pa. Commw. Page 497]

    aid dealer" for those persons engaged in the business of selling hearing aids.*fn2

Under Section 302 of the Act, 35 P.S. § 6700-302, the Department may require proof "concerning the honesty, truthfulness and good reputation of the applicant" for either type of certificate but, in addition, must administer a "practical examination compiled by the department" to any "applicant for a hearing aid fitter's certificate." An applicant for a hearing aid dealer's certificate is not required to take an examination. 28 Pa. Code § 25.205.

Section 309 of the Act, 35 P.S. § 6700-309, excludes physicians and audiologists from the requirement to register under the Act, unless they engage in the "sale or offering for sale of hearing aids."*fn3 Consequently,

[ 53 Pa. Commw. Page 498]

    the practice of the Department is to wholly exempt from the Act those physicians and audiologists who do not sell hearing aids and to require those who do sell hearing aids to acquire a hearing aid dealer's certificate, which can be obtained without an examination. Plaintiffs have challenged this practice in their ...


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