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decided: October 6, 1986.


Appeal from the Order of the Commonwealth Court of Pennsylvania dated December 19, 1984 entered at No. 3235 C.D. 1983. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., files a concurring opinion. Hutchinson, J., files a dissenting opinion in which Nix, C.j., and Flaherty, J., join.

Author: Zappala

[ 512 Pa. Page 46]


This is an appeal by the Commonwealth of Pennsylvania, State Board of Nurse Examiners (Board) from the Commonwealth Court order reversing the Board's order suspending the nursing license of Appellee Kathryn A. Kindle. The Board's order provided for termination of the suspension after one year upon submission of a psychiatric report by a board certified psychiatrist indicating Kindle was drug-free. The Commonwealth Court reversed, 86 Pa. Commw. 468, 485 A.2d 534 (1984), holding that the four year delay from the time of Kindle's misconduct to the suspension of her license

[ 512 Pa. Page 47]

    was excessive and prejudicial per se. The Board's petition for allowance of appeal was granted to address the propriety of a per se rule of prejudice arising out of an administrative agency's delay in initiating disciplinary action. We now reverse the order of the Commonwealth Court.

In 1979, the Appellee was employed as a nurse by the Doctor's Osteopathic Hospital in Erie, Pennsylvania. During that year she misappropriated the controlled substances of Demerol and Dilaudid for her own use. On July 16, 1979, she was arrested and charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act (Act), 35 P.S. §§ 780-113 et seq., and with violations of the Pennsylvania Crimes Code. She entered a plea of nolo contendere to four counts of violating the Act and six counts of violating the Crimes Code on January 28, 1980. On March 19, 1980, she was sentenced to a fifteen year probation and directed to pay a fine and the costs of prosecution and to make restitution to the hospital.*fn1 Kindle returned to nursing in September, 1981 in a part-time position as a registered nurse in an Erie nursing home.

Based on these underlying offenses, the Board issued a citation and notice of hearing to Kindle on January 19, 1983, charging her with a violation of section 14 of the Professional Nurse Law Act of May 22, 1951, P.L. 317, as amended, 63 P.S. § 224(4). Section 14 provides that the Board may suspend or revoke any license if the licensee has committed fraud or deceit in nursing practice.*fn2 An answer was filed by Kindle admitting the charges and raising in defense her successful probation and drug therapy treatment, as well as her new employment.

[ 512 Pa. Page 48]

After a hearing held on March 15, 1983, the Board concluded that Kindle had violated the Professional Nurse Law Act, acknowledging the mitigating circumstances which she had raised. The Board thereupon entered the order suspending her license.

On appeal to the Commonwealth Court, Kindle argued that the Board had abused its discretion in suspending her license more than four years after her misconduct. In accepting that argument, the court cited its previous opinions in Ullo v. Com., State Board of Nurse Examiners, 41 Pa. Commw. 204, 398 A.2d 764 (1979) and Conlon v. Com., State Board of Nurse Examiners, 68 Pa. Commw. 349, 449 A.2d 108 (1982) in which administrative delays in proceeding with the disciplinary actions were expressly disapproved. As it had done in Ullo, the court urged the Legislature to establish a statutory time limitation within which professional boards would be required to hold hearings and issue adjudications. The Commonwealth Court reversed the order of the Board.

Of the several issues raised by the Board, its contention that the doctrine of laches should not bar the imposition of disciplinary action by a state licensing board as a matter of law is facilely resolved. In the recent decision of Weinberg v. Com., State Board of Examiners, 509 Pa. 143, 501 A.2d 239 (1985), we held that the equitable doctrine of estoppel by laches may be invoked in disciplinary proceedings for professional misconduct.*fn3 The defense of laches was raised originally by Kindle in her appeal to the Commonwealth Court, rather than in her answer to the Board's citation. The Board argues that the issue was waived by her failure to raise the issue during the administrative proceeding. We hold now that the defense of laches must be raised at the administrative level and that failure to do so will constitute a waiver. Because the holding in Weinberg was this Court's first definitive pronouncement on the availability of laches as a defense in an administrative

[ 512 Pa. Page 49]

    disciplinary proceeding, however, we will permit Kindle to pursue this defense on remand of the matter to the Board.

We must agree, however, with the Board's final contention that the Commonwealth Court erred when it adopted a per se rule of prejudice based solely upon the length of time between the misconduct and the license suspension. The length of delay between the misconduct and the administrative proceeding is an important consideration in determining whether an individual has been prejudiced by the delay. Thus, on remand of this matter the Board must take into account the four-year delay which occurred in determining whether the Board had failed to exercise due diligence and whether Kindle had been prejudiced thereby.

In Weinberg, we noted that the parameters of the doctrine of laches are well defined, acknowledging Class of Two Hundred Administrative Faculty Members v. Scanlon, 502 Pa. 275, 279, 466 A.2d 103 (1983) [Citations omitted] in which we stated:

The application of the equitable doctrine of laches does not depend upon the fact that a definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to institute his action to another's prejudice.

The Commonwealth Court's holding understandably was engendered by frustration and a genuine concern for the extensive delays in administrative adjudications of the actions. Nevertheless, the practical effect of its holding was to create a ...

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