Makris v. Bureau of Professional and Occupational Affairs

• Decision Date: 14 November 1991
• Citation: 143 Pa.Cmwlth. 456,599 A.2d 279
• Court: Pennsylvania Commonwealth Court
• Parties: James MAKRIS, Petitioner, v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, State Board of Psychology, Respondents.

Page 279

599 A.2d 279

143 Pa.Cmwlth. 456

James MAKRIS, Petitioner, v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, State Board of Psychology, Respondents.

Commonwealth Court of Pennsylvania.

Submitted Sept. 10, 1991.

Decided Nov. 14, 1991.

William Butler, IV, for petitioner.

Jackie Wiest Lutz, Counsel for State Bd. of Psychology, for respondents.

Before PALLADINO and McGINLEY, JJ., and SILVESTRI, Senior Judge.

McGINLEY, Judge.

James Makris (Makris) appeals from an adjudication and order of the State Board of Psychology (Board) entered November 20, 1990, which found that he had committed two violations of the Professional Psychologists Practice Act (Act). ¹ We affirm.

It is undisputed that from 1984 to 1990 Makris and his wife operated the Good Neighbor Center (Center) as a massage therapy center. At a hearing before the Board, Mrs. Paula B. (Mrs. B.) testified that she went to the Center to receive massage therapy for the treatment of migraine headaches in November, 1988. Notes of Testimony, June 12, 1990 (N.T.) at 19. Mrs. B. testified that during this initial visit Makris informed her that he had a degree in psychology, that he had counseled people in the past, and that she could come to him if she needed counseling. N.T. at 21. Mrs. B. stated that she returned to the Center one additional time for the treatment of migraine headaches in December, 1988, at which time Makris told her that her headaches were cured. N.T. at 22. Mrs. B. testified that she subsequently decided to consult Makris about her feelings of depression, and arranged a counseling session with him after calling him to verify that he did indeed have a psychology degree and experience in counseling. N.T. at 23. Starting in January, 1989, Mrs. B. returned to Makris for four sessions of counseling, each of which she paid for, either by cash or check. N.T. at 51.

The Board found that Makris violated the Act by offering and attempting to practice psychology on Mrs. B. through the provision of counseling to her without a license under the Act, and by holding himself out to have a degree in psychology in conjunction with the provision of counseling to Mrs. B. ² The Board ordered Makris to immediately cease and desist from the unlawful practice of psychology and to pay a civil penalty for each violation of the Act in the total amount of $2,000 pursuant to its authority under Section 11 of the Act, 63 P.S. § 1211.

Our review of agency adjudications is limited to a determination of whether constitutional rights have been violated, whether an error of law has been committed, and whether necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Makris contends that the Board's findings were not based on substantial evidence, that he was exempted from the provisions of the Act by virtue of his status as a practitioner of the healing arts, that the Board erred in refusing to admit a release purportedly signed by Mrs. B. into evidence, and that the procedures followed by the Board were in violation of his due process rights.

Substantial Evidence

Makris argues that the Board's findings and determination that Makris offered and attempted to practice psychology on Mrs. B. and falsely held himself out to have a degree in psychology are not supported by substantial evidence. Makris states that 36 out of the 46 findings of fact are based solely on the testimony of Mrs. B., and that the four findings of fact that are based on Makris' testimony are taken out of context.

It is logical to presume that professionals sitting on an administrative board charged with regulating a profession will draw upon their special expertise in the determinations they are called upon to make. Kundrat v. State Dental Council and Examining Board, 67 Pa.Commonwealth Ct. 341, 447 A.2d 355 (1982). The Board's membership includes six licensed psychologists, as well as the Commissioner of Professional and Occupational Affairs and two representatives of the public at large. Section 3.1(a) of the Act, 63 P.S. § 1203.1(a). Mrs. B. testified that Makris asked her questions about her fears and personal life, N.T. 26, and gave her advice on techniques to cope with her feelings. N.T. at 35. Given this testimony, we will not disturb the determination of the Board that such advice amounted to counseling.

The testimony of Mrs. B. also supports the Board's conclusion that Makris held himself out as having a degree in psychology in conjunction with the provision of counseling. Although Makris' testimony conflicted with Mrs. B.'s on some points, a finding made by an administrative agency is not unsupported by competent and credible evidence merely because some evidence is introduced which conflicts with the agency's finding. Rabinowitz v. Unemployment Compensation Board of Review, 15 Pa.Commonwealth Ct. 51, 324 A.2d 825 (1974). Mrs. B. testified that Makris told her that he had a degree in psychology and counseling experience, which she interpreted as meaning that he was qualified to perform psychological counseling. N.T. at 60. Additionally, Makris testified at the hearing that he was aware that Mrs. B. misunderstood his representations to her about his qualifications. N.T. at 88. When the prosecuting attorney asked him what he had done to make Mrs. B. aware that he was not a psychologist, Makris admitted that he told Mrs. B. that he had thirty-three credits in psychology, and he relied only upon her "common sense" to know that he, therefore, did not complete the requirements for a degree in psychology. N.T. at 70. Makris stated that he found that in daily life he had to exaggerate the truth in some instances and that he may have used the word "psychology" in describing himself, not his services, to Mrs. B. N.T. at 87-88.

Makris also contends that the Board failed to resolve evidentiary conflicts, and ignored issues, including whether the "advice" he gave Mrs. B. was given in the course of their romantic relationship, rather than in an attempt to provide psychological counseling, and whether the exaggeration of his educational background was to impress her in order to further his romantic intentions. Makris contends that his "admission" that he tried to help Mrs. B. with her feelings as part of his job, N.T. at 93, was really an attempt to discover whether stress was responsible for her headaches.

It is not the function of this court to judge the weight and credibility of the evidence given before an administrative agency. Kundrat, 67 Pa.Commonwealth Ct. at 348, 447 A.2d at 359. The findings of the Board as they relate to Makris' allegations do not indicate that the Board failed to resolve evidentiary conflicts between the testimony of Mrs. B. and Makris, but rather that the Board resolved credibility in favor of Mrs. B. An administrative agency is not required to address each and every allegation of a party in its findings, nor is it required to explain why certain testimony has been rejected. Roth v. Workmen's Compensation Appeal Board (Armstrong World Industries), 128 Pa.Commonwealth Ct. 1, 562 A.2d 950 (1989).

Makris also contends that the record does not support the Board's conclusion that he violated the Act by offering psychological services for remuneration, and that the record reveals that Mrs. B. received head massages during at least two of her so-called counseling sessions, and that Mrs. B. paid the same $20 fee for the so-called counseling sessions as she did for the first two sessions, which both parties agree were strictly massage sessions.

Section 2 of the Act, 63 P.S. § 1202, relevantly provides:

'Practice of psychology' means offering to render or rendering ... for remuneration any service involving the following:

(i) The application of established principles of learning, motivation, thinking and emotional relationships and forms of evaluation, group relations and behavior adjustment. The application of said principles includes but is not restricted to, counseling and the use of psychological methods with persons or groups with adjustment problems in the areas of work, family, school, and personal relationships....

The testimony of Mrs. B., which the Board chose to accept, establishes that she paid Makris, at least in part, for services described in the Act. There is no requirement in the Act that the receipt of remuneration be exclusively for the provision of psychological services.

Exemption for Practitioners of the Healing Arts

Section 3 of the Act, 63 P.S. § 1203, provides that "[p]ersons licensed to practice any of the healing arts in this Commonwealth shall be exempt from the provisions of this Act." (Emphasis added.) While he concedes that there is no licensing requirement for massage therapists, Makris contends that he is a practitioner of the healing arts and is therefore exempt from the sanctions of the Act.

We note that Makris did not raise this argument before the Board but contended that he counseled Mrs. B. and others as a pastoral counselor. N.T. at 83. See also Answer of Respondent James Makris to Factual Allegations and Order to Show Cause of April 13, 1990, dated May 7, 1990, at 2. Makris is therefore barred from making the argument that he is exempt under another provision of the Act. ³ However, even if we were to reach the merits Makris would fail. When the words of a statute are clear, the letter is not to be disregarded under the pretext of pursuing the spirit. Schneck v. City of Philadelphia 34 Pa.Commonwealth Ct. 96, 383 A.2d 227 (1978). Quite simply, only persons licensed to practice the healing arts in the Commonwealth are exempt from the provisions of the Act.

Admission of Exhibit R-1

During the course of the hearing, Makris offered as evidence a form initialled "P.B." (Mrs. B.'s initials) which stated that Makris was not a medical doctor, but a massage therapist. When questioned, Mrs. B. denied signing...