Tighe v. Com., State Bd. of Nurse Examiners

• Decision Date: 09 February 1979
• Citation: 40 Pa.Cmwlth. 367,397 A.2d 1261
• Parties: Claremarie Santarone TIGHE, Petitioner, v. COMMONWEALTH of Pennsylvania, STATE BOARD OF NURSE EXAMINERS, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1261

397 A.2d 1261

40 Pa.Cmwlth. 367

Claremarie Santarone TIGHE, Petitioner, v. COMMONWEALTH of Pennsylvania, STATE BOARD OF NURSE

EXAMINERS, Respondent.

Commonwealth Court of Pennsylvania.

Argued Dec. 8, 1978.

Decided Feb. 9, 1979.

[40 Pa.Cmwlth. 368] Daniel M. Rendine, Santarone & Rendine, Philadelphia, for petitioner.

Charles L. Ford, Chief Counsel, Paula F. Garrety, Asst. Atty. Gen., Commission Professional & Occupational Affairs, Lenora M. Smith, Asst. Atty. Gen., Harrisburg, for respondent.

[40 Pa.Cmwlth. 367] Before ROGERS, DiSALLE and CRAIG, JJ.

OPINION

ROGERS, Judge.

Claremarie Santarone Tighe has appealed from an order of the State Board of Nurse Examiners suspending her license to practice as a registered nurse for one year pursuant to Section 14(4) of The Professional Nursing Law, Act of May 22, 1951, P.L. 317, As amended, 63 P.S. § 224(4), which provides:

"The Board may suspend or revoke any license in any case where the Board shall find that

(4) The licensee has committed fraud or deceit in the practice of nursing, or in securing his or her admission to such practice."

Ms. Tighe was charged with tampering with tubexes containing the narcotic Demerol while she was employed as a private duty nurse at Abington Memorial Hospital on November 26, December 19, and December 21, 1974. At the hearing conducted by the State Board of Nurse Examiners the Commonwealth adduced evidence tending to show that nurse Tighe receipted for tubexes of Demerol for administration to her patient, some of which tubexes she returned as unused or as spoiled by inadvertence, but which were later determined to have been emptied of their contents of Demerol and refilled with a saline solution. As we have noted, the board suspended Ms. Tighe's license for one year.

Ms. Tighe's able counsel asserts that his client was not afforded procedural due process because the board permitted a commingling of the prosecutorial and adjudicatory [40 Pa.Cmwlth. 369] functions during the hearing. The basis for the argument is that an assistant attorney general presented the evidence in support of the citation against Ms. Tighe and two other assistant attorneys general, at different periods, assisted the presiding board member in the conduct of the hearing. Because these attorneys were all attached to the board, the hearing was not fairly conducted, says the appellant. We disagree. In In re Bruteyn, 32 Pa.Cmwlth. 541, 380 A.2d 497 (1977), we held that the appellant had been unconstitutionally deprived of a fair trial because the same attorney general investigated the case, prosecuted it before the board, advised the board on the appellant's evidentiary motions and drafted the final adjudication and order. We pointed out there the difference between the circumstance of the same person prosecuting the case and participating in the adjudication and that of two individuals, although both employees of the Commonwealth, serving, respectively and entirely separately, as trial counsel and as a legal assistant of the agency in the preparation of its adjudication. In the latter circumstance we have concluded that no constitutional rights are infringed if no actual prejudice is done. Pennsylvania Human Relations Commission v. Thorp, Reed & Armstrong, 25 Pa.Cmwlth. 295, 361 A.2d 497 (1976). The appellant points to no actual...