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THOMAS F. ROCHE v. COMMONWEALTH PENNSYLVANIA (12/10/81)

decided: December 10, 1981.

THOMAS F. ROCHE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF FUNERAL DIRECTORS, RESPONDENTS



Appeal from the Order of the State Board of Funeral Directors in case of In the Matter of the Suspension or Revocation of a License to Practice as a Funeral Director, License No. 10300, issued to Thomas F. Roche.

COUNSEL

Michael A. Raffaele, ReDavid, Raffaele & Pietrangelo, for petitioner.

James J. Kutz, Chief Counsel, Bureau of Professional and Occupational Affairs, with him David F. Phifer, General Counsel for Department of State, and Marjoree Aderson, Counsel for State Board of Funeral Directors, for respondent.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 63 Pa. Commw. Page 130]

This is an appeal from the July 21, 1980 order of the Pennsylvania State Board of Funeral Directors (Board) which affirmed its October 27, 1977 order revoking the license of Thomas F. Roche (Roche) to practice as a funeral director.

A hearing was held on December 6, 1973 to hear evidence on charges that Roche had acted improperly with regard to the arrangements involved in a funeral which he conducted. It was charged that Roche had not submitted a signed itemized statement of expenses to the family prior to the funeral, as required; that he had submitted a false funeral bill to the estate which had been inflated to cover air travel expenses incurred by the family at the time of the funeral; that he had then failed to reimburse two of the family members concerned; and that he had failed to pay for initial arrangements performed by a funeral home located in Florida where the decedent had died, which expense had been incorporated into his own bill.

Almost four years later, on October 27, 1977, the Board issued its adjudication and order revoking Roche's license pursuant to Sections 11(5) and (6) of the Funeral Director Law.*fn1 In November of 1977,

[ 63 Pa. Commw. Page 131]

Roche filed a petition for review with this Court and a petition for rehearing and/or reconsideration with the Board. On January 3, 1978, the Board denied the request for a rehearing but granted the request for reconsideration, whereupon Roche withdrew the petition for review before this Court. Reconsideration hearings, limited in scope to reconsideration of "mitigating circumstances," were held by the Board in April and August of 1979. On July 21, 1980, after Roche had instituted an action in mandamus in this Court to compel the Board to act, the Board issued an order affirming its decision to revoke Roche's license. This appeal then followed.

Roche contends that the Board abused its discretion in revoking his license and, further, that he was denied due process of law by being compelled to proceed without counsel, by an impermissible commingling of the prosecutory and adjudicatory functions at the December, 1973 hearing and by the Board's failure to issue its adjudication and order until nearly four years after the original hearing.

Roche appeared without counsel at the December, 1973 hearing under the belief that the hearing was to be postponed because of the hospitalization of the complainant's attorney. When he arrived at the hearing, however, he was informed that the hearing was to proceed and that he could have a one-hour continuance in which to secure the presence of his attorney. When he was unable to contact his attorney, he advised the Board that he did not wish to proceed without counsel, but the hearing proceeded and he filed no formal complaint, trying to represent himself as well as he could.

The Board contends that the citation and the notice of hearing provided Roche with notice of the purpose and possible outcome of the hearing and of his right to be represented by counsel and, further, that Roche ...


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