Opinion
Argued October 6, 1982
January 11, 1983.
State Board of Optometrical Examiners — License suspension — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Credibility — Commingling of prosecutorial and adjudicative functions — Prejudice.
1. Review by the Commonwealth Court of Pennsylvania of a decision of the State Board of Optometrical Examiners suspending an optometry license is to determine whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. [112]
2. Questions of credibility and the resolution of evidentiary conflicts in a proceeding leading to the suspension of an optometry license are for the State Board of Optometrical Examiners, which can accept as credible testimony of complainants and reject contrary testimony of the licensee. [112]
3. Due process principles are not violated for an improper commingling of prosecutorial and adjudicatory functions in a license suspension proceeding merely because one Assistant Attorney General prosecuted the case and another served as counsel to the Board, when no improper communication occurred between them, when no evidence of improper commingling of functions appear on the record and no actual prejudice to the licensee was demonstrated. [113-14]
Argued October 6, 1982, before Judges ROGERS, BLATT and CRAIG, sitting as a panel of three.
Appeal, No. 2415 C.D. 1981, from the Order of the State Board of Optometrical Examiners in case of In the Matter of the Suspension or Revocation of License No. OE-003713, issued January 14, 1953, to Raymond M. Hartman, O.D., dated August 27, 1981.
Optometry license suspended by State Board of Optometrical Examiners. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Nicholas H. Krayer, for appellant.
Jerome Grossi, Assistant Counsel, with him James J. Kutz, Assistant Counsel, David F. Phifer, Chief Counsel, Jay Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
Raymond M. Hartman, O.D., (appellant) appeals here from the 90-day suspension of his optometry license based on two violations of the Optometry Act (Act), namely the use of misleading advertising to the detriment of the general public and the failure to live up to the advertisements or make full refunds as guaranteed.
Section 9 of the Act of March 30, 1917, P.L. 21, as amended, formerly 63 P. S. § 237, repealed by § 12 of the Optometric Practice and Licensure Act, Act of June 6, 1980, P.L. 197, 63 P. S. § 244.12. A similar provision is now found in Section 7 of the Optometric Practice and Licensure Act, 63 P. S. § 244.7.
The facts may be briefly stated. Pursuant to complaints received by the Bureau of Professional and Occupational Affairs, the appellant was cited for numerous violations of the Act. At a hearing held before the State Board of Optometrical Examiners (Board), three of his former patients testified that he had made but failed to honor certain guarantees concerning the fit of their contact lenses. They testified that they had first become aware of the appellant's services through local newspaper advertisements, one of which guaranteed a "scientific fit", while another stated "ask about our unconditional guarantee." They said that the appellant also explained to them personally that the unconditional guarantee included refunding their money if they could not wear the contact lenses. Upon experiencing great difficulty with the lenses, they asked him to refund their money, but he refused.
In appeals from the Board, our duty is to affirm its decision unless we find that it violates the appellant's constitutional rights, that it is not in accordance with law, or that any of the necessary findings of fact are unsupported by substantial evidence. Chaby v. State Board of Optometrical Examiners, 35 Pa. Commw. 551, 386 A.2d 1071 (1978).
Hartman's first contention on appeal is that the Board abused its discretion in finding the testimony of the three patients more credible than his. He further argues that the Board should have accorded more weight to the fact that two of the patients were longtime friends, and that one of the two was at that time trying to collect a judgment from him. It is axiomatic, however, that matters of credibility and evidentiary weight are within the exclusive discretion of the factfinder below, and are not within our scope of review. Carr v. State Board of Pharmacy, 48 Pa. Commw. 330, 409 A.2d 941 (1980). Furthermore, the Board, after specifically considering the evidence offered here by the appellant, concluded that the "patients' testimony was the most credible." Such a conclusion is well within the province of the Board. Id.
Inasmuch as all of the appellant's earnings and property belong to an organization called the Basic Bible Church of America, Inc., P.O. Box 61, Cayman Islands, British West Indies, the patient, Ms. Pletz, had been unable to collect the $488.75 judgment awarded by the Court of Common Pleas of Beaver County in a civil action which she brought against Hartman.
Hartman next contends that his due process rights were violated because of the commingling of prosecutorial and adjudicatory functions. He argues that both the Assistant Attorney General who prosecuted the case and the Assistant Attorney General who was Counsel to the Board were attached to the Bureau of Professional and Occupational Affairs, and that this constituted a violation of his rights. In Pennsylvania Human Relations Commission v. Thorp, Reed Armstrong, 25 Pa. Commw. 295, 361 A.2d 497 (1976), we clearly held that this situation is not per se a violation of due process. And, as we recognized in Bruteyn Appeal, 32 Pa. Commw. 541, 380 A.2d 497 (1977), the Thorp case "turned on the fact that there was no actual prejudice rendering the hearing constitutionally infirm". (Emphasis in original.) Two factors which we considered relevant in a similar case included inter alia, (1) a determination of whether or not anything in the record indicated improper commingling of the functions on the part of the two Assistant Attorney Generals, and (2) whether or not either is disclosed as having concerned himself with the other's activities. Northeast Dodge Co. v. State Board of Motor Vehicle Manufacturers, Dealers Salesmen, 54 Pa. Commw. 182, 420 A.2d 771 (1980). After a close examination of the record, however, as well as of the 96 findings of fact, we must conclude that there is no evidence here of any violation of due process. We note that, not only does the record fail to reveal any improper commingling of the functions on the part of the two Assistant Attorney Generals, but that their own sworn testimony supports the conclusion that neither of them concerned himself with the activities of the other. They have not discussed any substantive issues in the case and neither has had access to the other's files. Moreover, after reviewing the testimony concerning any procedural communications between the Prosecutor and the Counsel for the Board, we are convinced that these communications were impartial and relevant to the proper handling of this case. Obviously, not every communication between the Prosecutor and the Counsel for the Board results in an improper commingling of prosecutorial and adjudicatory functions, and where, as here, the communications were strictly impartial and administrative in nature, there was no denial of due process.
These communications included (1) a motion for request to close discovery filed by the Prosecutor, a copy of which was sent to Hartman, (2) a communication from Counsel to the Board to the Prosecutor informing him that she had received a phone call from Hartman to the effect that he was represented by legal counsel, and (3) an oral communication from the Prosecutor to the Counsel for the Board opposing Hartman's request for a continuance, which communication had previously been conveyed to counsel for Hartman,
We will, therefore, affirm the order of the Board.
ORDER
AND NOW, this 11th day of January, 1983, the order of the State Board of Optometrical Examiners in the above-captioned matter is hereby affirmed.