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GREGG F. BRADY v. COMMONWEALTH PENNSYLVANIA (01/18/84)

decided: January 18, 1984.

GREGG F. BRADY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF CHIROPRACTIC EXAMINERS, RESPONDENT



Original jurisdiction in the case of Gregg F. Brady et al. v. State Board of Chiropractic Examiners.

COUNSEL

John D. Killian, Killian & Gephart, for petitioner.

James J. Kutz, Deputy Attorney General, with him Mary S. Wyatte and Allen C. Warshaw, Deputy Attorneys General, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Craig, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 79 Pa. Commw. Page 609]

This case is a proceeding in the nature of an action in equity addressed to our original jurisdiction by ADIO Institute of Straight Chiropractic, Inc. and students of that school, including some who took examinations administered in November, 1982 by the respondent, the State Board of Chiropractic Examiners.

The suit has asked the court to decide whether the ADIO graduates who passed the board's examinations, while ADIO held an interim approval granted by the board, are entitled to be licensed as chiropractic doctors, with particular reference to the fact that the board had earlier granted licenses to fifty-two of their fellow ADIO graduates.

This case is a companion case to Coder v. State Board of Chiropractic Examiners, No. 1902 C.D. 1982, in which this court has refused to hold invalid the fifty-two licenses which the board had voluntarily granted to earlier ADIO graduates by a board order of July, 1982. Although each of the two cases has had its separate evidentiary hearing, the evidence, stipulations and exhibits in the two cases overlap.

[ 79 Pa. Commw. Page 610]

In this Brady case, the court issued an adjudication and decree nisi. Both sides have filed exceptions. Except for Petitioners' Exception 7, neither party has taken exception to the findings of fact in the Brady adjudication, which contains nineteen findings of fact, of which the first fifteen are substantially the same as fifteen of the findings of fact adopted in the Coder case and affirmed in the Coder case panel decision disposing of exceptions, to which cross-reference is made.*fn1 Although certain of the exceptions from both sides refer to failure to "find" (e.g., Petitioners' Exceptions 3 and 4, Board Exception 13), they relate to legal conclusions and not to matters of fact -- the only possible departure being the above-noted Petitioners' Exception 7, which is discussed below.

[ 79 Pa. Commw. Page 611]

Facts

The history of the case includes ADIO's process of seeking board approval as a school of chiropractic, beginning in 1978, when ADIO's first class of students began. The board accorded "provisional approval" to ADIO during periods between 1979 and January, 1980 and between February, 1980 and the grant of interim approval, noted below. During the period of provisional approval, the board did not authorize the licensing of any ADIO graduates and did not permit ADIO students or graduates to sit for board examinations until this court ordered that the taking of examinations (but not licensure) be allowed, in order that the students could be tested before their education and training became stale by the passage of time.*fn2

The particular chronology crucial to this Brady case is as follows:

May, 1982 -- ADIO graduates and last semester students, as allowed by law, took board examinations, and fifty-two of them passed.

June, 1982 -- The board granted interim approval for one year and voted to issue licenses to all ADIO students passing the examination during that period.

July, 1982 -- Without rescinding the interim approval, the board ordered the issuance of licenses only to students who had by that date passed the board's examinations.

September, 1982 -- The board permitted ADIO graduates and last semester students to sit for examinations during the period of interim approval, until June 30, 1983, but negated any further licensing.

[ 79 Pa. Commw. Page 612]

November, 1982 -- ADIO graduates and students took board examinations and all but two passed.

May, 1983 -- Additional ADIO graduates and students took and passed the ...


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