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decided: February 19, 1986.


Appeal from the Order of the State Board of Nurse Examiners in case of In The Matter of the Suspension or Revocation of License No. RN-221306-L, issued November 16, 1977, to Ann Marie Rafferty, dated December 28, 1981.


Daniel L. Thistle, Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, for petitioner.

Mary S. Wyatte, Assistant Counsel, Bureau of Professional and Occupational Affairs, with her, David F. Phifer, Chief Counsel, Department of State, for respondent.

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 95 Pa. Commw. Page 179]

Ann Marie Rafferty appealed a State Board of Nurse Examiners order revoking her nursing license. This Court reversed.*fn1 On appeal, the Pennsylvania Supreme Court reversed our Order and remanded the case to this Court.*fn2

The Board had acted pursuant to Section 14(3) of The Professional Nursing Law (Act),*fn3 which provides that it may suspend or revoke any license if it finds that "[t]he licensee has wilfully or repeatedly violated

[ 95 Pa. Commw. Page 180]

    any of the provisions of th[e] act or of the regulations of the Board." (Emphasis added.)*fn4 Our Supreme Court has interpreted this provision as not referring to a nurse's motivation, and in so doing has held that (1) the Board need not prove a specific intent to violate the Act, or the rules and regulations promulgated thereunder, if the action of the offender is not in the best interest of patient care, in order to establish a "wilful" violation and (2) there was substantial evidence that Rafferty wilfully violated 49 Pa. Code § 21.11(a)(4).*fn5 The Court ordered this remand for resolution of Rafferty's remaining contentions.*fn6

[ 95 Pa. Commw. Page 181]

Initially, Rafferty challenges Section 21.11(a)(4) as unconstitutionally vague. This section requires "nursing care actions which promote, maintain, and restore the well-being of individuals." We reject Rafferty's challenge because the regulation was not vague with respect to her conduct. See diLeo v. Greenfield, 541 F.2d 949 (2d Cir. 1976). Our Supreme Court upheld the Board's findings that Rafferty's actions were unauthorized, contraindicated and a serious deviation from acceptable nursing practice.

Rafferty also contends that she was denied a fair hearing due to the presence, at the hearing, of the attorney who represented Thomas Jefferson University Hospital in a lawsuit she filed against the Hospital. She argues that his presence compelled her to use material from that lawsuit to cross-examine the Commonwealth's witness and, thereby, tainted the proceedings.*fn7 We fail to see how Rafferty's mode of cross-examination could have been affected by the presence of this observer. Although Rafferty relies on this Court's finding of prejudicial error in Leukhardt v. State Board of Nurse Examiners, 44 Pa. Commonwealth Ct. 318, 403 A.2d 645 (1979) (the nurse charged

[ 95 Pa. Commw. Page 182]

    was precluded from cross-examining the complainant concerning civil suits initiated by the complainant against the nurse and her hospital employer), she was not similarly denied the right to cross-examine the Commonwealth's witness.*fn8

Rafferty finally argues that the Board improperly failed to reopen the record for her treating physician's deposition testimony. A petition to reopen a proceeding for the purpose of taking additional evidence "shall set forth clearly the facts claimed to constitute grounds requiring reopening of the proceeding, including material changes of fact or of law alleged to have occurred since the conclusion of the hearing." 1 Pa. Code § 35.231(a) (emphasis added). We hold that the Board did not improperly refuse to reopen the record because (1) Rafferty's request letter indicates no material changes of fact or law and (2) we cannot say that the Board abused its discretion*fn9 in determining that the facts set forth therein do not constitute grounds requiring the record be reopened.*fn10

[ 95 Pa. Commw. Page 183]

Accordingly, we affirm the Board's decision.


The order of the State Board of Nurse Examiners dated December 28, 1981, is affirmed.


Reversed. (80 Pa. Commonwealth Ct. 603). Board Appealed to the Supreme Court of Pennsylvania. Case Remanded to Commonwealth Court. Board order affirmed.

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