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PENNSYLVANIA ACADEMY CHIROPRACTIC PHYSICIANS v. COMMONWEALTH PENNSYLVANIA (10/03/89)

decided: October 3, 1989.

THE PENNSYLVANIA ACADEMY OF CHIROPRACTIC PHYSICIANS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL & OCCUPATIONAL AFFAIRS, RESPONDENT



PETITION FOR REVIEW § 761.

COUNSEL

Kenneth William Richmond, Rosengarten & Richmond, P.C., Philadelphia, for petitioner.

Mary S. Wyatte, Deputy Gen. Counsel, Harrisburg, for respondent.

Doyle and McGinley, JJ., and Narick, Senior Judge.

Author: Doyle

[ 129 Pa. Commw. Page 14]

Before us for disposition are the preliminary objections of the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs (Respondent) to a petition for review in the nature of a declaratory judgment filed in our original jurisdiction by the Pennsylvania Academy of Chiropractic Physicians (Petitioner).

In its petition for review Petitioner alleges that on October 5, 1988 Respondent, by its prosecuting attorney, sent a letter to a member of Petitioner's association, Dr. Robert G. Wagner, D.C., advising him that his utilization of the term "chiropractic physician" in connection with himself in an advertisement in a telephone directory was in violation of Section 10 of the Medical Practice Act of 1985,*fn1 and Section 3 of the Osteopathic Medical Practice Act.*fn2 The letter further explained that under Section 525 of the Chiropractic

[ 129 Pa. Commw. Page 15]

Practice Act,*fn3 a chiropractor may use only the term "doctor of chiropractic" and may not use the term "chiropractic physician." Additionally, the letter explained that use of the term "chiropractic physician" could be viewed as constituting misleading, deceptive, untrue or fraudulent representation in violation of Section 506(a)(2) of the Chiropractic Practice Act, 63 P.S. § 625.506(a)(2). The letter further indicated that such activity would constitute grounds for the revocation or suspension of a chiropractic license. Finally, the letter advised that while Respondent was not contemplating any disciplinary action at that time, continued use of the term "chiropractic physician" by the member in question could result in disciplinary sanctions.

Petitioner pleads that as a direct consequence of this correspondence its existence and membership rolls are gravely threatened and made uncertain because of the fear of its members of sanctions arising from their identification and association with Petitioner. Doctor Wagner, the doctor of chiropractics to whom the letter was directed, did not, however, join the suit as a plaintiff. It is Petitioner's position that the term "chiropractic physician" is permitted under relevant statutory law and further that Respondent's attempt to prohibit use of the term is violative of the First and Fourteenth Amendments to the United States Constitution and, in addition, constitutes ex post facto legislation. As relief Petitioner seeks a declaration from this Court that the Chiropractic Practice Act does not prohibit the use of the term "chiropractic physician."

Respondent has filed preliminary objections to the petition for review. In its preliminary objections it contends (1) that there is no case or controversy in question here (2) that the Petitioner lacks standing to sue (3) that Petitioner has not stated a cause of action, and (4) that the instant suit is barred by the doctrine of sovereign immunity.

[ 129 Pa. Commw. Page 16]

We recognize that preliminary objections admit as true all facts which are well pleaded as well as all inferences which are reasonably deducible therefrom. Department of Transportation v. Pennsylvania Power & Light Co., 34 Pa. Commonwealth Ct. 594, 383 A.2d 1314 (1978). And, if there should exist any doubt whatsoever as to whether the averments in the complaint would permit recovery if they are ultimately proved, ...


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