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decided: June 29, 1989.




Jean B. Green, Donald J. Martin, Norristown, for petitioner.

John F. Alcorn, Counsel, State Bd. of Medicine, Joyce McKeever, Chief Counsel, and Velma A. Boozer, Chief Counsel, Dept. of State, Bureau of Professional & Occupational Affairs, Harrisburg, for respondent.

Crumlish, Jr., President Judge, and Craig, Barry, Colins, Palladino, McGinley and Smith, JJ. Doyle, J., did not participate in the decision in this case. Crumlish, Jr., President Judge. Colins, J., joins in this dissent.

Author: Mcginley

[ 127 Pa. Commw. Page 228]

Samuel S. Lyness, M.D. (Lyness), appeals from a decision of the State Board of Medicine (Board) finding that Lyness committed acts constituting immoral and unprofessional conduct in violation of Section 15(a)(8) of the Medical Practice Act of 1974 (1974 Act)*fn1 and revoking his license to practice medicine. We vacate and remand.

On January 9, 1985 the prosecuting attorney for the Board initiated charges agains t Lyness by means of an administrative complaint and order to show cause, alleging that Lyness had committed an act of immoral or unprofessional conduct in November, 1984. Lyness filed an answer denying this allegation. The prosecuting attorney filed an amended complaint and order to show cause on February 22, 1985, and a second amended complaint and order to show cause on August 30, 1985. The second amended complaint and order to show cause set forth the same charges as did the original and also charged Lyness with additional acts of misconduct.

Lyness filed an answer and new matter denying the allegations and raising the bar of laches as to Counts II, III, VI, VII and VIII. He also requested therein that the Board suspend proceedings during the pendency of criminal charges which were based on the same incidents which formed the basis of Counts I and IV. A hearing examiner for the Board heard testimony, but this Court, acting on Lyness' request, agreed to stay the proceedings pending

[ 127 Pa. Commw. Page 229]

    disposition of the criminal charges. After Lyness was acquitted of the criminal charges he filed an amended answer and new matter to the second amended complaint and order to show cause, in which he asserted that he had been acquitted of criminal charges which had been based on the same incidents which were the subject of Counts I and IV. He alleged that the acquittals barred the Board from proceeding on Counts I and IV.

The proceedings before the Board's hearing examiner resumed. The hearing examiner issued an Adjudication and Order, finding Lyness guilty of immoral and unprofessional conduct as charged in each of Counts I, II, III, VI, VII and VIII, and finding that he had violated Section 15(a)(8) of the 1974 Act. He ordered that Lyness' license to practice medicine be suspended for a period of five years, and that he submit to the "care, counseling or treatment of a physician or physicians designated by the Board."*fn2

Both Lyness and the prosecuting attorney requested review by the Board. Lyness raised several contentions of error, and he requested that the Board hold an evidentiary hearing, and permit the filing of briefs and oral argument. The prosecuting attorney requested that the Board impose a harsher sentence. The Board denied Lyness' request for oral argument and an evidentiary hearing, but did establish a briefing schedule. The Board vacated the order of the hearing examiner, granted the prosecutor's request, and revoked Lyness' license.

Lyness raises the following contentions of error: 1) the Board commingled its prosecutorial and adjudicatory functions; 2) the proceedings were terminated by the repeal without savings clause of the 1974 Act; 3) the proceedings as to Counts II, III, IV, VI, VII and VIII were barred by application of laches; 4) the Board failed to apply the "beyond a reasonable doubt" standard; 5) the board erroneously denied oral argument and a new hearing; 6) the acquittal of the criminal charges estopped the Board from

[ 127 Pa. Commw. Page 230]

    proceeding as to Count I; and 7) the modification of penalty was improper.

Our scope of review is limited to a determination of whether constitutional rights were violated, and whether the decision is in accordance with law and supported by substantial evidence. Cassella v. State Board of Medicine, 119 Pa. Commonwealth Ct. 394, 547 A.2d 506 (1988).

We first address Lyness' contention that the procedure which the Board followed violated due process. He specifically claims that the Board improperly commingled its prosecutorial and adjudicatory functions by permitting Board members, who voted to issue the complaint against him and to proceed to formal hearing, to serve on the tribunal which adjudicated those same charges.

The Board followed its standard operating procedure in prosecuting and adjudicating this matter.*fn3 A complaint was submitted to the Complaints Officer for the Bureau of Professional and Occupational Affairs. The complaint was then transmitted to a Board prosecutor, who conducted an investigation. The prosecutor recommended that a complaint be issued and a formal hearing be held, and the Board voted to accept the recommendation. The prosecutor then prepared an administrative complaint and order to show cause.

This Court upheld the constitutionality of a similar procedure in Oppenheim v. Department of State, Bureau of Professional and Occupational Affairs, State Dental Council and Examining Board, 74 Pa. Commonwealth Ct. 200, 459 A.2d 1308 (1983). Lyness suggests, however, that our decision in Oppenheim failed to follow the principles as set forth by our Supreme Court in Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975). Lyness also contends that the presence of actual bias distinguishes this controversy from Oppenheim.

[ 127 Pa. Commw. Page 231]

We reject Lyness' contention that our decision in Oppenheim misapplied the Dussia standard. In Oppenheim, as here, the appellant relied on Dussia to support his claim that his due process rights were violated. We dismissed that claim after a review of the pertinent authority from the United States Supreme Court, as well as our own Supreme Court, stating that:

[O]ur court has recognized a fundamental distinction between the danger of conjoining prosecutorial and adjudicative functions in a single individual, and the danger of commingling such functions in an administrative structure statutorily designed. Thus, as a general rule, a decision made by a tribunal after a formal adversarial hearing, where that tribunal has generally supervised an investigation into the same matter previously, or made a prehearing determination of probable cause is not per se an adjudication rendered by a biased tribunal, as long as the prosecutorial and investigatory aspects of the matter are adequately separated from the adjudicatory function . . . In such cases, a party claiming due process violations must show actual bias. . . .

The Dussia standard applies only when a single individual commingles prosecutorial and judicial functions; in such cases, the mere appearance of possible prejudice renders the adjudication unconstitutional.

Oppenheim, 74 Pa. Commonwealth Ct. at 214-15, 459 A.2d at 1316 (citations omitted and emphasis added).

In Scalzi v. City of Altoona, 111 Pa. Commonwealth Ct. 479, 533 A.2d 1150 (1987), we had occasion to review both Dussia and Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969). We noted that each of these cases involved a review of the role of a single individual. Thus, Lyness' reliance on Dussia and Gardner is unfounded.

For Lyness to prevail he must show actual bias. Lyness points to two actions of the Board which he contends demonstrate bias: 1) the Board denied Lyness' application for stay of the order of the Hearing Examiner suspending his license; and 2) the Board ordered Lyness to

[ 127 Pa. Commw. Page 232]

    submit a plan for treatment. Lyness contends that the denial of his application for stay indicates that the Board had already determined that he was unlikely to prevail on the merits. He further contends that the Board's order that he submit a plan for treatment reflected the Board's predetermination of Lyness' guilt.

We disagree. A determination of whether or not the applicant is likely to prevail on the merits is only one of the criteria to be considered relative to an application for a stay. Other factors must be weighed, too, such as whether the applicant will suffer irreparable injury if the stay is denied; whether the issuance of a stay will substantially harm other interested parties; and whether the issuance of a stay will adversely affect the public interest. Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983). The Board concluded that Lyness did not satisfy these criteria.*fn4 Lyness has made no showing that the Board committed an error of law or an abuse of discretion in denying his application for a stay, or that any such error of law or abuse of discretion was premised on bias. Nor has he shown that the Board's order requiring him to submit a treatment plan is an indication of bias. Having denied Lyness' application for stay, it was incumbent upon the Board to take action to put into effect the Hearing Examiner's order, including the provision which required Lyness to undergo treatment.*fn5

We next address Lyness' contention that the proceedings against him should have been terminated due to the repeal without a savings clause of the 1974 Act, which had been in effect at the time of the alleged violations, and pursuant to which the proceedings against him were commenced. Lyness maintains that the inclusion in the 1985 Act of harsher penalties ...

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