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RAYMOND M. HARTMAN v. COMMONWEALTH PENNSYLVANIA (02/15/89)

decided: February 15, 1989.

RAYMOND M. HARTMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF OPTOMETRY, RESPONDENT



Appeal from the Order of the State Board of Optometry, in the case of In the Matter of the Suspension or Revocation of License Number OE-003713-L, to Practice Optometry Issued to Raymond M. Hartman, O.D., dated December 11, 1987.

COUNSEL

Nicholas H. Krayer, for petitioner.

Thomas F. Halloran, Senior Deputy Attorney General, with him, John G. Knorr, III, Chief Deputy Attorney General, Chief of Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Craig and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 123 Pa. Commw. Page 425]

The Pennsylvania State Board of Optometry (Board) suspended Raymond M. Hartman's (Petitioner's) license to practice optometry for a period of three years for practicing optometry while his license was under suspension. We affirm.

The Board originally suspended Petitioner's license for ninety days in 1981 for misleading advertising practices. This Court affirmed the suspension in Hartman v. State Board of Optometrical Examiners, 71 Pa. Commonwealth Ct. 110, 454 A.2d 1150 (1983) (Hartman I). Following that decision, Petitioner surrendered his license to the Board for the suspension period, February 23, 1983 to May 19, 1983.

On June 13, 1983, the Board issued its original citation and rule to show cause why Petitioner's license should not be revoked for practicing optometry on April 29, 1983, while his license was under suspension, by examining the eyes of and prescribing and furnishing glasses for Mary Gigliotti, an occupational license inspector for the Bureau of Professional and Occupational Affairs. This original citation was later amended on August

[ 123 Pa. Commw. Page 42623]

, 1983 to include Petitioner's furnishing of the same services to two other patients during the suspension period.

The first hearing on these charges was scheduled for August 31, 1983. The Board filed a petition for continuance on August 17, 1983, to which Petitioner had no objection. The Board rescheduled the hearing for October 12, 1983.

On October 12, 1983, the hearing examiner appointed by the Board convened the hearing. Neither petitioner nor his attorney, Mr. Krayer, was present. The prosecuting attorney informed the hearing examiner that Mr. Krayer had telephoned him the morning of the hearing to request a continuance because he (Krayer) had suffered an accident the evening before in Philadelphia and was unable to make the trip to Harrisburg. The hearing examiner granted the continuance and the hearing was rescheduled for October 19, 1983.

Mr. Krayer appeared for the October 19 hearing and moved for a continuance because Petitioner had a problem with his leg and was unable to drive from his home in western Pennsylvania to Harrisburg. After questioning the attorney regarding the nature of the illness and when he had been informed of the problem,*fn1 the hearing examiner denied the request. Mr. Krayer voiced no further objection and the hearing proceeded. Although Petitioner's counsel cross-examined the prosecution witnesses, Petitioner presented no evidence of his own to refute the charges against him.

[ 123 Pa. Commw. Page 427]

At the conclusion of the hearing, the hearing examiner established a briefing schedule. Several days after the deadline for filing Petitioner's brief had passed, the prosecutor filed a motion to close time for filing of briefs. In apparent response to this motion, Petitioner filed two undated motions, a motion to reconvene the hearing because of Petitioner's absence*fn2 and a motion ...


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