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IRENE CONLON v. COMMONWEALTH PENNSYLVANIA (08/18/82)

decided: August 18, 1982.

IRENE CONLON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF NURSE EXAMINERS, RESPONDENT



Appeal from the Order of the State Board of Nurse Examiners in the case of In the Matter of the Suspension or Revocation of License No. RN 188198, to Practice as a Registered Nurse, issued October 12, 1972, to Irene Conlon, No. 77-NU-875, dated January 28, 1981.

COUNSEL

Dennis L. Friedman, for petitioner.

Mary S. Wyatte, Assistant Counsel, with her James J. Kutz, Assistant Counsel, David F. Phifer, Chief Counsel, and Jay Waldman, General Counsel, for respondent.

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

Author: Blatt

[ 68 Pa. Commw. Page 350]

Irene Conlon (petitioner) appeals here from an order of the State Board of Nurse Examiners (Board) suspending her license to practice as a registered nurse for one year.

The petitioner was charged with misappropriating several vials of Demerol for her own personal use while employed as a registered nurse at Frankford Hospital on May 30, 1977. When subsequently confronted with the results of a hospital investigation, she admitted to having substituted water for the Demerol in the vials. She was discharged and was unable to secure new employment as a nurse until November 1977, when, by not disclosing her past record, she was hired by the Rolling Hills Hospital and was employed there until July, 1978. Upon their learning of the previous incident, the hospital dismissed her.

The petitioner was served with a citation and notice of hearing by the Board on April 24, 1978 and, at the time of the hearing on May 23, 1978, the petitioner proposed that she be permitted to continue nursing for a six-month probationary period, during which time she would be under a psychiatrist's care; the Commonwealth did not present its case at that time. The Board denied her request, and scheduled another hearing on October 16, 1978 at which the petitioner admitted and stipulated to the factual allegations set forth in the citation. On January 28, 1981, the Board issued an adjudication and order suspending her license to practice as a registered nurse for one year.

The petitioner argues that the more than two-year delay between the hearing and the adjudication, on a set of uncontradicted facts and admitted wrongdoing by the petitioner, constituted unconscionable, cruel and unusual punishment, as well as a deprivation of due process.

[ 68 Pa. Commw. Page 351]

It is true that a procedure to suspend or revoke a professional license is penal in nature and that delay clearly tends to frustrate the just resolution of such matters. State Dental Council and Examining Board v. Pollock, 457 Pa. 264, 318 A.2d 910 (1974). However, to succeed in a contention that constitutional rights were violated here, the petitioner must demonstrate that some harm or prejudice to her interests resulted from the delay. Ullo v. State Board of Nurse Examiners, 41 Pa. Commonwealth Ct. 204, 398 A.2d 764 (1979). She argues that, in reliance on the inaction of the Board, she changed her economic position by purchasing a new home and that she is presently the head-of-household and provider for her minor child. She had, however, admitted her wrongdoing and knew or should have known that a penalty was likely to result. In addition, there is nothing in the record which indicates that she sought a more expeditious resolution of her case prior to committing herself to a financial undertaking of such substantial dimensions as the purchase of a house. She cannot now, therefore, claim that her interests have been prejudiced by actions which she herself voluntarily undertook while awaiting the Board's determination. Roche v. State Board of Funeral Directors, 63 Pa. Commonwealth Ct. 128, 437 A.2d 797 (1981).

She argues further that the imposition of a suspension at this point in time results, in effect, in a double punishment inasmuch as she did not work for over a year-and-a-quarter because of anxieties associated with the Board's alleged delay. The record, however, does not support the reason given by the petitioner as to why she was not employed. The petitioner's attorney at the hearing stated that, after having lost her job at Frankford Hospital, she had ...


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