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RAYMOND M. HARTMAN v. COMMONWEALTH PENNSYLVANIA (01/11/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 11, 1983.

RAYMOND M. HARTMAN, O.D., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF OPTOMETRICAL EXAMINERS, RESPONDENT

Appeal from the Order of the State Board of Optometrical Examiners in case of In the Matter of the Suspension or Revocation of License No. OE-003713, issued January 14, 1953, to Raymond M. Hartman, O.D., dated August 27, 1981.

COUNSEL

Nicholas H. Krayer, for appellant.

Jerome Grossi, Assistant Counsel, with him James J. Kutz, Assistant Counsel, David F. Phifer, Chief Counsel, Jay 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

[ 71 Pa. Commw. Page 111]

Raymond M. Hartman, O.D., (appellant) appeals here from the 90-day suspension of his optometry Act*fn1 (Act), namely the use of misleading advertising to the detriment of the general public and the failure to live up to the advertisements or make full refunds as guaranteed.

The facts may be briefly stated. Pursuant to complaints received by the Bureau of Professional and Occupational Affairs, the appellant was cited for numerous violations of the Act. At a hearing held before the State Board of Optometrical Examiners (Board), three of his former patients testified that he had made but failed to honor certain guarantees concerning the fit of their contact lenses. They testified that they had first become aware of the appellant's services through local newspaper advertisements, one of which guaranteed a "scientific fit", while another stated "ask about our unconditional

[ 71 Pa. Commw. Page 112]

    guarantee." They said that the appellant also explained to them personally that the unconditional guarantee included refunding their money if they could not wear the contact lenses. Upon experiencing great difficulty with the lenses, they asked him to refund their money, but he refused.

In appeals from the Board, our duty is to affirm its decision unless we find that it violates the appellant's constitutional rights, that it is not in accordance with law, or that any of the necessary findings of fact are unsupported by substantial evidence. Chaby v. State Board of Optometrical Examiners, 35 Pa. Commonwealth Ct. 551, 386 A.2d 1071 (1978).

Hartman's first contention on appeal is that the Board abused its discretion in finding the testimony of the three patients more credible than his. He further argues that the Board should have accorded more weight to the fact that two of the patients were long-time friends, and that one of the two was at that time trying to collect a judgment from him.*fn2 It is axiomatic, however, that matters of credibility and evidentiary weight are within the exclusive discretion of the factfinder below, and are not within our scope of review. Carr v. State Board of Pharmacy, 48 Pa. Commonwealth Ct. 330, 409 A.2d 941 (1980). Furthermore, the Board, after specifically considering the evidence offered here by the appellant, concluded that the "patients' testimony was the most credible." Such a conclusion is well within the province of the Board. Id.

[ 71 Pa. Commw. Page 113]

Hartman next contends that his due process rights were violated because of the commingling of prosecutorial and adjudicatory functions. He argues that both the Assistant Attorney General who prosecuted the case and the Assistant Attorney General who was Counsel to the Board were attached to the Bureau of Professional and Occupational Affairs, and that this constituted a violation of his rights. In Pennsylvania Human Relations Commission v. Thorp, Reed & Armstrong, 25 Pa. Commonwealth Ct. 295, 361 A.2d 497 (1976), we clearly held that this situation is not per se a violation of due process. And, as we recognized in Bruteyn Appeal, 32 Pa. Commonwealth Ct. 541, 380 A.2d 497 (1977), the Thorp case "turned on the fact that there was not actual prejudice rendering the hearing constitutionally infirm". (Emphasis in original.) Two factors which we considered relevant in a similar case included inter alia, (1) a determination of whether or not anything in the record indicated improper commingling of the functions on the part of the two Assistant Attorney Generals, and (2) whether or not either is disclosed as having concerned himself with the other's activities. Northeast Dodge Co. v. State Board of Motor Vehicle Manufacturers, Dealers & Salesmen, 54 Pa. Commonwealth Ct. 182, 420 A.2d 771 (1980). After a close examination of the record, however, as well as of the 96 findings of fact, we must conclude that there is no evidence here of any violation of due process. We note that, not only does the record fail to reveal any improper commingling of the functions on the part of the two Assistant Attorney Generals, but that their own sworn testimony supports the conclusion that neither of them concerned himself with the activities of the other. They have not discussed any substantive issues in the case and neither has had access to the other's files. Moreover,

[ 71 Pa. Commw. Page 114]

    after reviewing the testimony concerning any procedural communications*fn3 between the Prosecutor and the Counsel for the Board, we are convinced that these communications were impartial and relevant to the proper handling of this case. Obviously, not every communication between the Prosecutor and the Counsel for the Board results in an improper commingling of prosecutorial and adjudicatory functions, and where, as here, the communications were strictly impartial and administrative in nature, there was no denial of due process.

We will, therefore, affirm the order of the Board.

Order

And Now, this 11th day of January, 1983, the order of the State Board of Optometrical Examiners in the above-captioned matter is hereby affirmed.

Disposition

Affirmed.


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