Summary
In State Board of Medical Education and Licensure v. Contakos, 21 Pa. Commw. 422, 346 A.2d 850 (1975), this Court held that 2 Pa. C. S. § 505, which mandates that the technical rules of evidence are not applicable to proceedings before the Commonwealth agencies, does not abrogate the hearsay evidence rule.
Summary of this case from Worthington v. Dept. of AgricultureOpinion
Argued September 11, 1975
October 27, 1975.
State Board of Medical Education and Licensure — Revocation of license to practice medicine and surgery — Unanimous vote of Board — The Medical Practice Act of 1973, Act 1974, July 20, P.L. 526 — Effect of legislation on pending cases — Presumption of validity of official acts — Technical evidence rules — Administrative Agency Law, Act 1945, June 4, P.L. 1388 — Hearsay — Letters.
1. The Medical Practice Act of 1973, Act 1974, July 20, P.L. 526, does not require that action of the State Board of Medical Education and Licensure revoking a license to practice medicine and surgery be the result of a unanimous vote. [423-4]
2. Legislation affecting procedure is applicable to litigation pending at the time of its passage. [424]
3. Actions of public officials are presumed to be regular until the contrary is shown. [424]
4. Agencies subject to provisions of the Administrative Agency Law, Act 1945, June 4, P.L. 1388, are not bound by technical rules of evidence. [424]
5. The hearsay rule is not a technical rule of evidence but is one which should be applied by administrative agencies when hearsay evidence is offered on a crucial issue and an objection is made thereto. [425]
6. The Board of Medical Education and Licensure in a license revocation hearing properly excluded as hearsay letters written by patients and other citizens reflecting favorably on the professional ability of the licensee. [424-5]
Argued September 11, 1975, before President Judge BOWMAN and Judges KRAMER and MENCER, sitting as a panel of three.
Appeal, No. 178 C.D. 1975, from the Order of the State Board of Medical Education and Licensure in case of In the Matter of the Suspension or Revocation of the License to Practice Medicine and Surgery, No. 6147-E Issued August 10, 1961 to Samuel C. Contakos, M.D.
License to practice medicine and surgery revoked by the State Board of Medical Education and Licensure. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Herman M. Rodgers, with him Rodgers, Marks Perfilio, for appellant.
Robert D. Chamberlain, Jr., Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.
Samuel C. Contakos, M.D., appeals from an order of the State Board of Medical Education and Licensure (Board) revoking his license to practice medicine and surgery. We affirm the Board.
The Board's action, taken after proper notice and two hearings, was based on Dr. Contakos' three criminal convictions in the Westmoreland County Court of Common Pleas. The convictions were for 1) being an accessory after the fact of burglary and larceny, 2) conspiracy to commit an unlawful act, and 3) sodomy. The sodomy conviction was reversed by the Pennsylvania Supreme Court and Dr. Contakos subsequently entered a plea of nolo contendere on retrial of that charge.
The appellant's initial argument is that the Board's order is void in that it is signed only by the Board Chairman and the Commissioner of Professional and Occupational Affairs. The appellant refers to a statutory provision that Board action taken in regard to a license revocation be by unanimous vote of the members of the Board as contained in Section 12 of the Medical Practice Act of June 3, 1911, P. L. 639, as amended. That Act, however, has been repealed in its entirety and replaced by The Medical Practice Act of 1973, Act of July 20, 1974, P. L. 526, 63 P. S. § 421.1 et seq. and the current statute contains no provision that Board action be unanimous. The final board order, from which this appeal was taken, is dated January 23, 1975, well after the effective date of the new Act. Legislation affecting procedure is to be applied to litigation existing at the time of its passage. Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 110 A. 731 (1920); Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973). There was no need, therefore, for the Board's action to be unanimous. Moreover, even under the prior Act, an order signed by the Board Chairman should be presumed to have been issued in compliance with the appropriate procedures. In Department of Transportation v. Mitchell's Structural Steel Painting Co., 18 Pa. Commw. 591, 336 A.2d 913 (1975) and in Fox v. Pennsylvania Securities Commission, 17 Pa. Commw. 72, 328 A.2d 573 (1974), arguments similar to this appellant's were rejected on the principle that the law must presume the regularity of actions taken by public officials until the contrary has been shown.
Secondly, the appellant asserts error in the Board's refusal to accept into evidence a number of letters written by patients and citizens of his community. These letters would purportedly reflect favorably upon the appellant's professional service. He argues that they would have been relevant in determining the appropriate degree of penalty, and, while we agree that they may have been relevant in that respect, we do not believe that the Board erred in refusing their admission, since they were clearly hearsay. The Board is subject to the Administrative Agency Law which sets the following standard for admissibility of evidence:
"Agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonable probative value may be received. Reasonable examination and cross-examination shall be permitted." Section 32 of the Act of June 4, 1945, P. L. 1388, as amended, 71 P. S. § 1710.32.
The hearsay rule, however, is not a technical rule of evidence but a fundamental rule of law which ought to be followed by administrative agencies at those points in their hearings when facts crucial to the issue are sought to be placed upon the record and an objection is made thereto. Bleilevens v. Pennsylvania State Civil Service Commission, 11 Pa. Commw. 1, 312 A.2d 109 (1973). See Unemployment Compensation Board of Review v. Stiles, 19 Pa. Commw. 38, 340 A.2d 594 (1975). The letter writers' credibility here could not of course be tested by cross-examination and so the Board did not err in excluding their statements.
We, therefore, issue the following
ORDER
AND, NOW, this 27th day of October, 1975, the adjudication and order of the State Board of Medical Education and Licensure is hereby affirmed.