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UHLAN DAYOUB v. COMMONWEALTH PENNSYLVANIA (12/30/82)

decide: December 30, 1982.

UHLAN DAYOUB, D.D.S., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE DENTAL COUNCIL AND EXAMINING BOARD, RESPONDENT



Appeal from the Order of the State Dental Council and Examining Board in the case of In the matter of the Suspension and Revocation of Dental License No. 12413, issued August 25, 1952, to Uhlan Dayoub, D.D.S., File No. 79-DE-137.

COUNSEL

Daniel Joseph, for petitioner.

Michael L. Solomon, Assistant Counsel, with him John J. Flynn, Assistant Counsel, James J. Kutz, Assistant Counsel, David F. Phifer, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

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

Author: Blatt

[ 70 Pa. Commw. Page 621]

Uhlan Dayoub, D.D.S. (petitioner) appeals here an order of the State Dental Council and Examining

[ 70 Pa. Commw. Page 622]

Board (Board) revoking his license to practice dentistry. He had been charged with writing prescriptions without a legitimate medical purpose in violation of Section 3(i) of the Dental Law (Law), Act of May 1, 1933, P.L. 216, as amended, 63 P.S. ยง 122(i).

The Board found that the petitioner, a practitioner of 27 years, has operated a one-chair dental office in New Kensington, a community where he has also been the local school dentist for approximately 25 years. He was charged with prescribing excessive amounts of a pain-killer, Percodan, to indigent patients who suffered from impacted wisdom teeth or were in need of full-mouth rehabilitation.*fn1 Many of these indigent clients were in dire need of oral surgery, which the petitioner could not perform because of the local hospital's refusal to admit welfare cases. The Board, while noting that the use of Percodan is an accepted dental practice to control severe pain, could not find a valid medical reason to justify the petitioner's prescriptions, and therefore ordered the revocation of his license. He appealed to this Court, and a stay pending review was granted on September 3, 1981.

[ 70 Pa. Commw. Page 623]

The petitioner argues that he was denied procedural due process by the Board, noting particularly that the Board members vigorously questioned him many times during the hearing as if they were conducting a cross-examination. He argues that this questioning evidenced bias and predisposition on the part of the Board members and amounted to an unlawful commingling of adjudicative and prosecutorial functions. See Roche v. State Board of Funeral Page 623} Directors, 63 Pa. Commonwealth Ct. 128, 437 A.2d 797 (1981).

The petitioner cites some examples of the Board's interrogation. At page 130a of the record, Dr. Penzur, a Board member, while questioning the petitioner, said:

I must say that I have been practicing for longer than Dr. Dayoub, and we are exposed to some of these procedures, and ...


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