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SUSAN EDWARDS v. COMMONWEALTH PENNSYLVANIA (01/12/83)

decided: January 12, 1983.

SUSAN EDWARDS, 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 case of In the Matter of the Suspension or Revocation of the License to Practice as a Dental Hygienist, No. 2891, issued June 22, 1966, to Susan Edwards, D.H., dated May 22, 1981.

COUNSEL

Joseph F. Castellino, for petitioner.

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

Thomas A. Beckley, with him John G. Milakovic, Beckley & Madden, for Amicus Curiae, Pennsylvania Dental Association.

Peter M. Sfikas, with him Clay H. Phillips, Peterson, Ross, Schloerb & Seidel, for Amicus Curiae, American Dental Association.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr. and MacPhail. Opinion by Judge Blatt.

Author: Blatt

[ 71 Pa. Commw. Page 141]

Susan Edwards (petitioner) appeals here an order of the State Dental Council and Examining Board (Board) which revoked her license to practice dental hygiene pursuant to Section 3(i) of the Dental Law (Law), Act of May 1, 1933, P.L. 216, as amended, 63 P.S. § 122(i). The alleged violations included inter alia, performing dental hygiene services without the direct supervision of a licensed dentist.

The petitioner argues first that Section 2 of the Law, 63 P.S. § 121, which provides that a hygienist must work under the supervision of a licensed dentist, deprives her of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.

Both parties agree that the right to practice a profession has been characterized as a property right and therefore carries the attendant constitutional protections, Schware v. Board of Examiners, 353 U.S. 232 (1957). However, this is not an absolute vested right, Rabino v. State Registration Board for Professional Engineers, 69 Pa. Commonwealth Ct. 192, 450 A.2d 773 (1982), and the practice of a profession can legitimately be regulated under a state's inherent police power, that is, under the state's right to regulate for the benefit of the citizenry's health, safety, morals, and welfare. Watson v. Maryland, 218 U.S. 173 (1910). Johnston v. State Board of Medical Education and Licensure, 49 Pa. Commonwealth Ct. 9, 410 A.2d 103 (1980). When an attack upon a statute is made on due process grounds, the following analysis is required:

[A] law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs

[ 71 Pa. Commw. Page 142]

    must have a real and substantial relation to the objects ...


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