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JAMES P. HERBERG v. COMMONWEALTH PENNSYLVANIA (03/17/82)

decided: March 17, 1982.

JAMES P. HERBERG, M.D., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF MEDICAL EDUCATION AND LICENSURE, RESPONDENT



Appeal from the Order of the State Board of Medical Education and Licensure in the case of In the Matter of the Suspension or Revocation of the License to Practice Medicine, License No. MD-05834-E, issued July 25, 1960, to James P. Herberg, M.D., dated March 4, 1981.

COUNSEL

Thomas B. Schmidt, III, with him Fred Speaker, Pepper, Hamilton & Scheetz, for petitioner.

Kenneth E. Brody, Assistant Counsel, with him David F. Phifer, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

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

Author: Craig

[ 65 Pa. Commw. Page 359]

Petitioner James P. Herberg, M.D., appeals from a decision of the State Board of Medical Education and Licensure, which affirmed an order of a hearing examiner of the Commission of Professional and Occupational Affairs, revoking petitioner's medical license under Section 15(a)(3) of the Medical Practice Act,*fn1 as a consequence of petitioner's guilty pleas to felony

[ 65 Pa. Commw. Page 360]

    drug sale charges in Centre County, Juniata County and Dauphin County, Pennsylvania.

Petitioner's first contention is that the hearing examiner revoked petitioner's license principally for deterrent purposes, disregarding substantial evidence that petitioner had become rehabilitated and is capable of practicing medicine without endangering his patients or the public.

Even assuming that petitioner no longer is dangerous to his patients, this court has stated:

[T]he public interest served by a license suspension or revocation is not limited to the protection of patients. Equally important to the public interest is the necessity for regulation and discipline of the profession to prevent such unauthorized medical practices in the future.

Ullo v. State Board of Nurse Examiners, 41 Pa. Commonwealth Ct. 204, 208, 398 A.2d 764, 766 (1979).

Petitioner next contends that his due process rights under the fourteenth amendment and fifth amendment of the United States Constitution were violated because (1) the revocation of his license was premature in that his guilty pleas, on which the proceedings were predicated, remained subject to petitioner's motions for leave to withdraw,*fn2 and (2) petitioner was hindered in presenting his defense before the hearing examiner because he had invoked his ...


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