IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James W. Temple, : Petitioner :

: v. : No. 693 C.D. 2021
: Submitted: May 6, 2022 Bureau of Professional : and Occupational Affairs, : State Board of Veterinary Medicine, : Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH , Judge

HONORABLE MICHAEL H. WOJCIK , Judge HONORABLE STACY WALLACE , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WALLACE FILED: August 5, 2022

James W. Temple, DVM (Petitioner) , petitions for review of the May 2 6 , 2021
order of the State Board of Veterinary Medicine (Board), which f ound that Petitioner
failed to conform to the standards of acceptable and prevailing veterinary medical practice pursuant to Section 21 (11) of the Veterinary Medicine Practice Act (Act). 1
Petitioner contends that the expert testimony presented against him violated his right to due process by creating the appearance that the Board intermingled prosecutorial and adjudicatory functions , and that substantial competent evidence did not support the Board’s findings of fact because th at same expert testimony was in competent

. After review, we affirm in part, vacate in part, and remand.

1 Act of December 27, 1974, P.L. 995, as amended , 63 P.S. § 485.21(11).2 I. Background and Procedural History This proceeding stems from Petitioner’s practice as a veterinarian at Sunbury Animal Hospital ( the Hospital ) in Sunbury, Pennsylvania. On February 18, 2016,
Donna Kurtz (Owner) brought her dog, Tiki, to the Hospital for an emergency visit , where Petitioner performed an examination. Reproduced Record ( R .R.) at 74a

- 76a.
The record contains differing accounts of Tiki’s symptoms that day , both of which
the Board appears to have relied up on when reaching its decision

. According to Owner’s testimony, she informed Petitioner that Tiki was making “hacking” sounds and having difficulty breathing. Id. at 74a

- 75a . Tiki also vomited on the car ride to the Hospital, although this was “common” because of Tiki’s motion sickne ss. Id. at
76a

. According to the notes in Tiki’s medical records , Owner reported Tiki had been “trying to throw up” since early that morning, was “heaving [and] vomiting froth,” could “hardly walk ,” was very lethargic, and had been having trouble breathing since the night before. Id. at 346a . Petitioner ’s examination revealed increased respiratory
sounds over Tiki’s trachea and bronchi. Id. He then proposed Tiki may be suffering
from canine flu. Id. at 76a. Owner requested that Tiki receive X

- rays and blood

tests , but Petitioner declined, saying he did not “feel that it was needed.” Id. at 77a

. Petitioner prescribed amoxicillin and carpaquin for Tiki but took no other action

. Id.

at 77a

- 78a

. Owner administered the medications as prescribed

. Id. at 78a . Nonetheless, Tiki’s condition deteriorated. Id. at 78a

- 79a

. It became harder for Tiki to breathe, and she began making what Owner described as a “death rattle . . . like a noisy breath,
and she would fight for that. ” Id. On February 21, 2016, Owner called the Hospital

. Id. at 79a

. Staff at the Hospital advised Owner to obtain a vaporizer for Tiki, and3

Owner complied. Id. The vaporizer helped Tiki’s breathing to improve only briefly, “for maybe a half hour, 45 minutes , ” but it then deteriorated once again

. Id.
Owner brought Tiki back to the Hospital on February 22, 2016, for a second emergency visit. Id. at 79a

- 80a

. This time, a different veterinarian examined Tiki.
Id. at 223a

- 24a

. Tiki had trouble breathing during the examination , and a lump was present on the left side of her body. Id. at 83a , 220a

. S taff at the Hospital performed
X

- rays , which revealed severe pleural eff usion. 2 Id. at 81a , 22 7a

. Tiki remained at the Hospital from February 22, 2016, on ward , and never returned to Owner’s home.
Id. at 81a

- 82a

. Because of limited medical options , Owner chose to euthanize Tiki on February 27, 2016. Id. at 82a , 366 a

- 73a

. On September 19, 2019, a prosecuting attorney f rom the Department of State (Department) issued an order to show cause against Petitioner , alleg ing that he failed
to maintain proper veterinary medical records

. T he order also alleged that Petitioner
failed to conform to the standards of acceptable and prevailing veterinary medical practice by not thoroughly evaluating Tiki , misdiagnos ing her condition, prescrib ing inappropriate medications, and not offering to perform X

- rays. Petitioner filed an

answer. T he Board delegated the case to a hearing examiner from the Department’s Office of Hearing Examiners , and a hearing occurred on August 14, 2020

. Petitioner participated in the hearing with counsel. The hearing examiner heard testimony
from Lance Budinger , a professional conduct investigator from the Department’s Bureau of Enforcement and Investigation ; Owner ; the Department’s expert witness , Brian V. Harpster, DVM (Harpster) ; Petitioner; Erin Bourinski, a certif ied vet erinary

2 The expert testimony in this case defined “pleural effusion” as “ fluid in the lung cavity and also the chest cavity , and it’s also within the lung tissue ” or as “fluid outside the lung cavity . . . . ” R.R. at 132a , 275a

.4

technician at the Hospital ; and Petitioner’s expert witness , Jerry Alan Greene, DVM (Greene)

. In relevant part, the Department presented testimony from Harpster regarding his qualifications as an expert witness

. Harpster explained that he previously served

on the Board for eight years and was its chairman for six of those years. Id. at 95a

. Harpster’s curriculum vitae indicates that he served on the Board from 1997 to 2006
and was its chairman from 2000 to 2006. Id. at 382a

. Harpster testified that he later began working as a consultant an d expert witness. Id. at 94a

. Harpster stated that
he had “been doing consulting work for the . . . Board . . . with regards to complaints that have been filed with the [B]oard.” Id. at 95a

. Petitioner’s counsel moved to disqualify Harpster, arguing that his testimony was a n “impermissible co

- mingling of prosecutor y and adjudicatory functions of the Board. ” Id. at 99a

. The hearing
examiner deferred his ruling so that the Department’s counsel could ask Harpster
follow

- up questions

. Id. at 100a

. During the questioning, Harps ter clarified that he
work s with prosecutors and not the Board itself, that he does not interact with Board
members , and that Board members do not ask him to review cases for them

. Id. at 100a

- 01a

. Given this explanation , the hearing examiner denied Petitioner’s request to disqualify Harpster

. Id. at 103a.
T he Department then presented Harpster’s expert opinion that Petitioner fell below the standards of acceptable and prevailing veterinary medical practice in his care of Tiki on February 18, 2016. Id. at 110a

. Harpster testified that the standard
of care in “ this type of case, respiratory ” required Petitioner to obtain a thorough history of Tiki’s symptoms and “not really rely on notes of the technician and the
owner.” Id. at 113a

. Harpster noted that , although the Hospital’s receptionist or
technician took a history , he did not see any in dication in the medical records that5

Petitioner had asked questions or took notes regarding Tiki’s history himself. Id. at 113a

- 14a , 120a

- 21a , 139a

. Harpster also testified that the standard of care required
Petitioner to thoroughly evaluate Tiki’s resp iratory tract, including her lungs. Id. at 114a . Harpster explained he did not see any indication in the medical records that
Petitioner had evaluated Tiki’s lungs. Id. at 114a , 122a

- 23a , 137a

. I n “ respiratory
distress ” cases, Harpster added, the standard of care required Petitioner to perform
X

- rays and blood tests , neither of which Petitioner did. Id. at 114a , 1 48a

- 49a

. Petitioner sought to rebut Harpster’s testimony with Greene’s contrary expert opinion that Petitioner’s treatment did not fall below the standard of care

. Id. at 261a

. Greene observed that Tiki’s medical records described her general appearance on February 18, 2016, as “ normal ,” but indicated that her respiratory system was “abnormal” in that Petitioner noted increased sounds over her trachea and bronchi.
Id. at 2 68a

- 69a , 279a

- 81a. Greene faul ted Harpster for placing too much emphasis on Owner’s subjective reports of Tiki’s symptoms rather than the se objective results
of Pe titioner’s examination. Id. at 2 79a

- 81a

. Greene further challenged Harpster’s
assertion that Petitioner failed to e valuate Tiki’s lungs, explaining that Petitioner
noted increased sounds over her bronchi, which are “ [w]ithin the lung parenchyma
themselves. ” Id. at 268a , 286a

. With respect to t he standard of care, Greene opined
that it required Petitioner to examine Tiki, determine a presumptive diagnosis, and develop a treat ment plan, which is what Petition er did. Id. at 2 71a

. Greene further opined it was not necessary for Petitioner to perform X

- rays and blood tests because “the signs and symptoms that were being shown were not that severe, and it basically did not require any type of invasive workup. ” Id. at 2 77a , 303a

- 04a

. On January 15, 2021, the hearing examiner issued his proposed adjudication
and order

. The hearing examiner concluded that Petitioner had not failed to maintain6

proper veterinary medical records, but that his care of Tiki o n February 18, 2016 , fell below the standards of acceptable and prevailing veter inary medical practice
because he failed to order X

- rays and blood tests

. The hearing examiner’s proposed order reprimanded Petitioner, directed him to pay a civil penalty of $1,000, directed him to pay costs of $2,360.09, and required him to complete a t least three hours of continuing education in veterinary diagnosis and treatment related to respi ra tory and lung disease.
Petitioner filed a brief on exceptions to the proposed adjudication and order , and the Department filed a brief in opposition. On May 26, 2021, t he Board issued

a final memorandum order adopting the hearing officer’s proposed adjudication and
order

. T he Board rejected Petitioner’s claim on exceptions that the hearing examiner should have disqualified Harpster because of the appearance his testimony resulted
in intermingl ed prosecutorial and adjudicatory functions. The Board explained that separate ent ities handled the prosecutorial and adjudicatory functions in th e matter , and that there was nothing in the record to suggest bia s, prejudice , or unfairness

. Id.

at 5 8 1a. 3 A hearing examiner, rather than the Board, held the evidentiary hearing.
Id. at 577a. Although Harpster was a past member and c hairman of the Board, at the time he provided consulting services to Department prosecutors , he did not have

contact with Board members. Id. at 581a. In addition , the Board accepted Harpster’s testimony and concluded that the standard of care required Petitioner to recommend
X

- rays and blood tests for Tiki

. Id. at 579a . It rejected Greene’s contrary testimony, reasoning that his description of the standard of care was overly subjecti ve

. Id. at 578a

. The Board explained , “[w]hile the standard must remain flexible so that it can

3 Several pages of the final memorandum order are witho ut page numbers in the reproduced record. We have supplied the missing page numbers for the purposes of our citations.7

evolve and progress with advancements in ve terinary medicine, an objective
minimum standard of care must remain. ” Id.
Petitioner filed a petition for review and now presents two arguments , which
we have reordered for our disposition. Petitioner contends (1) that Harpster’s testimony created the appearance that the Board intermingled prosecutorial and adjudicatory functions in violation of Petitioner’s right to due process , and (2) that
substantial competent evidence did not support the Board’s findings regarding his failure to conform to the standards of accepta ble and prevailing veterinary medical practice because Harpster’s expert opinion was in competent

. II. Discussion
We review the Board’s order for violations of the petitioner’s constitutional rights, violations of agency practice and procedure, and other legal errors . 2 Pa.C.S. § 704. Further , we review whether substantial evidence supports the findings of fact necessary to s ustain the Board’s decision. Id. “Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”
Hammad v. Bureau of Pro . & Occupational Affs., State Bd. of Veterinary Med

. , 124
A.3d 374 , 380 n.7 (Pa. Cmwlth

. 2015) ( citing Shrad er v. Bureau of Pro. & Occupational Affs.
, State Bd. of Veterinary Med. , 673 A.2d 1 , 2 (Pa. Cmwlth

. 1995))

. Although the witnesses in this matter testified before a hearing examiner, the Board
is the ultimate factfinder and determines credibility

. Id. at 381 n.11 (quoting A

. O. v. Dep’t of Pub. Welfare , 838 A.2d 35, 38 n.5 ( Pa. Cmwlth

. 2015 )). Upon review of the hearing examiner’s proposed order , the Board may hold an additional hearing, make new factual findings, alter the hearing officer’s recommended sanctions , reject the proposed order in its entirety, or adopt the proposed order without a lteration. Id.
at 381.8

Initially , Petitioner contends that Harpster’s testimony created the appearance that the Board intermingled prosecutorial and adjudicatory functions in violation of Petitioner’s right to due process

. Petitioner asserts that the hearing examiner erred by failing to disqualify Harpster, and that the Board erred by relying on Harpster’s testimony

. Pet’r’s Br. at 31. Petitioner emphasizes that Harpster i s a previous
member and c hairman of the Board, and that Harpster testified he is under contract
with , and does consulting work for , the Board. Id. at 32

- 33. Petitioner directs our
attention to Lyness v. State Board of Medicine , 605 A.2d 1204 (Pa. 1992) , and Purcell v. Reading School District , 167 A.3d 216 (Pa. Cmwlth

. 2017).
In Lyness , the State Board of Medicine revoked a doctor’s license because of
his alleged sexual molestation of patient s

. 605 A.2d at 1204

- 0 6

. Our Supreme Court
concluded that there had been an impermissible intermingling of prosecutorial and adjudicatory functions, which violated the doctor’s right to due process. Id. at 1209

- 10 . The C ourt reasoned that the State Board of Medicine investigated and chose to prosecute the doctor , and then presided over his prosecution. Id. at 1205

- 06. Indeed,
of the seven members of the Board who voted to prosecute the doctor, three later participated in the meeting at which the Board revoked the doctor’s license, and two
voted in favor of revoc ation. Id. The Court explained that the “mere possibility of bias under Pennsylvania law is sufficient to raise the red flag of protection offered by the procedural guaranty of due process.” Id. at 1208. Despite this , the Court
noted it was “ unrealisti c and counterproductive ” to prohibit administrative agencies
from serving in both prosecutorial and adjudicatory roles, “where such roles are parcelled out and divided among distinct departments or boards.” Id. at 1209. The
Court clarified , “ [w] hat our Constitution requires

. . . is that if more than one function9

is reposed in a single administrative entity, walls of division be constructed which
elimi nate the threat or appearance of bias. ” Id. Similarly, Purcell involved the termination of a school district superintendent, where the school board initiated disciplinary proceedings against the superintendent, members of the school board testified against the superintendent at her hearing, and
the school board then made the initial decision to terminate the superintendent. 167
A.3d at 217

- 22. Citing Lyness , the superintendent argued that the school board’s combination of roles violated her right to due process. Id. at 223. This Court agreed, pointing to the absen ce of “walls of division” and the “egregious” intermingling of
functions

. Id. at 226 (quoting Lyness , 605 A.2d at 1209). We explained, “[t]here is no ground of either precedent or reason for this Court to fail to apply the mandate
of Lyness and its proge ny to the case at bar. ‘Sufficient process’ is argued by the [school d]istrict but what really occurred was deficient process, or no due process at all.” Id.
The cases Petitioner cite s are distinguishable from the matter at bar. Although the Department performed each role in Petitioner’s disciplinary proceeding , the roles

were divided among distinct organizations within the Department

. Lyness , 605 A.2d

at 1209. The Department’s Bureau of Enforcement and Investigation investigated
the case . A prosecuting attorney from the Department issued the order to show cause
and presented evidence against P etitioner during the hearing

. A hearing examiner from the Department ’s Office of Hearing Examiners presided over the hearing and issued a proposed adjudication and order. Finally, the Board , which is also part of the Department, served as the ultimate factfinder and issued the final memorandum
order

. We are satisfied t he se “walls of division” eliminated the threat or appearance
of bias. Id.10

Regarding Harpster specifically, it is true that his initial testimony suggested
he worked for the Board. Harpster explained that he served on the Board for eight years and was chairman for six of those years

. R.R. at 95a

. Harpster’s curriculum
vitae indicates he served on the Board from 1997 to 2006 and was its chairman from
2000 to 2006

. Id. at 382a

. Harpster then began working as a consultant and expert
witness

. Id. at 94a

- 95a, 104a

. Harpster explained he had “been doing consulting work for the . . . Board . . . with regards to complaints that have been filed with the [B]oard.” Id. at 95a

. The Department’s counsel asked Harpster follow

- up questions, however, during which he clarified that he works with prosecutors and not the Board
itself , that he does not interact with Board members , and that Board members do not
ask him to review matters for them

. Id. at 100a

- 01a

. Given that Harpster had not
been a member of the Board for approximately 1 4 years at the time of this proceeding and given his testimony that he work s with prosecutors and not Board members , we discern no violation of Petitioner’s right to due process resulting from Harpster’s testimony

. See Stone and Edwards Ins. Agency, Inc. v. Dep ’t of Ins. , 648 A.2d 304,
307

- 08 (Pa. 1994) (explaining that the appearance of bias, partiality, or prejudice Lyness proscribes “ must clearly be one that arises from an actual environment of commingled functions. . . . In the absence of any actual commingling . . . due process guarantees are being adequately protected”) (emphasis omitted)

. Petitioner next contends that substantial competent evidence did not support the B oard’s finding that his care of Tiki fell below the standards of acceptable and prevailing veterinary medical practice

. Petitioner focuses t his claim on challenging Harpster’s expert report. In his report, Harpster presented various “areas of concern”
with Petitioner ’s care of Tiki on February 18, 2016. R.R. at 379a

- 80a

. Petitioner

now endeavors to challenge these areas as inconsistent with the record evidence or11

H arpster’s own testimony at the hearing. Pet’r’s Br. at 24

- 30. Petitioner also separately challenges the proposition that he should have recommended blood tests for Tiki, arguing that the Department did not raise the issue of blood tests in its order

to show cause, among other things

. Id. at 30

- 31

. Petitioner asserts that the Board’s
decision relied on Harpster’s opinion , but that Harpster’s opinion was in competent,

s uch that the Board’s decision lacked sufficient evidentiary support. Id. at 20

- 31 , 34

- 35. The Department alleged in its order to show cause, and the Board found, that Petitioner violated Section 21(11) of the Act. Section 21(11) provides for imposition
of discipline due to “ [i]ncompetence, gross negligence or other malpractice, or the departure from, or failure to conform to, the standards of acceptable and prevailing veterinary medical practice, in which case actual injury need not be established. ” 63 P.S. § 485.21(11). Importantly, w hile the Board is comprised of individuals with specialized expertise in veterinary medicine, this expertise cannot take the place of expert testimony

. See Yi v. State Bd. of Veterinary Med. , 960 A.2d 864 , 869

- 7 2 (Pa. Cmwlth. 2008). The Board may use its expertise to “filter” evidenc e by resolv ing
conflicts in testimony and draw ing reasonable inferences, but substantial evidence

must still support the Board’s findings of fact

. Id. at 871

- 72 (citing Batoff v. State
Bd

. of Psych

. , 750 A.2d 835, 840 (Pa. 2000) ).
Whether an expert’s testimony is competent presents a question of law subject

to our plenary review

. City of Philadelphia v. Workers’ Comp. Appeal Bd. (Kriebel) , 29 A.3d 762 , 769 (Pa. 2011) (citing Lewis v. Workmen ’ s Comp. Appeal Bd. , 498
A.2d 800, 803 (Pa. 1985) )

. We have observed that an expert may not base his or her opinion on mere conjecture. Id. at 770 (quoting Collins v. Hand , 246 A.2d 398, 404 (Pa. 1968)). “[E]xpert testimony is incompetent if it lacks an adequate basis in fact.12

. . . [A]n expert’s assumptions must be based upon such facts as the jury would be warranted in finding from the evidence.” Kimberly Clark Corp. v. Workers’ Comp. Appeal Bd. (Bromley) , 161 A .3d 446 , 467 (Pa. Cmwlth. 2017) (quoting Gilling ham v. Consol Energy , Inc. , 51 A.3d 841, 849 (Pa. Super. 2012) ) (emp hasis omitted )

. The Board’s sole reason s for imposing discipline against Petitioner were his
fail ure to recommend X

- rays and blood tests. R.R. at 578a

- 79a

. There was a clear factual basis for this aspect of Harpster’s opinion. 4 Owner testified she informed
Petitioner that Tiki was making “hacking” sounds , was having difficulty breathing , and vomited on the car ride to the Hospital

. Id. at 74a

- 76a

. N otes in the medical
records indicate that Owner reported Tiki had been “trying to throw up” since early that morning, was “heaving [and] vomiting froth,” could “hardly walk,” was very lethargic, and had been having trouble breathing since the night before. Id. at 346a.
Petitioner ’s examin ation revealed increased respiratory sounds over Tiki’s trachea
and bronchi. Id. Given th is evidence, Harpster was not acting on mere conjecture
when he characterized this as a “ respiratory distress” case and opined that the standard of care require d further testing in the form of X

- rays and blood tests

. Id. at 114a ; see also City of Philadelphia , 29 A.3d at 769. Harpster’s testimony was plainly competent. 5

4 Petitioner is correct that certain aspects of Harpster’s report were inconsistent with his testimony during the hearing. Nevertheless, the Board did not find against Petitioner regarding these areas of inconsistency. See Degraw v. Workers’ Comp

. Appeal Bd. (Redner’s Mkts., Inc. ) , 926 A.2d 997 , 1001 (Pa. Cmwlth. 2007) (“The opinion of a medical expert must be viewed as a whole. A medical expert’s opinion is rendered incompetent only if it is based solely on inaccurate or false information. ”) ( citations omitted)

.

5 Contrary to Petitioner’s contention, Harpster render ed his opinion s regarding both X

- rays and blood testing within a reasonable degree of veterinary certainty. R.R. at 114a

- 15a

.13

This does not end our discussion, however. Petitioner also maintains that the
Board disciplined him for failing to recommend blood tests for Tiki when the order
to show cause did not include blood tests as a basis for discipline. Pe t’r’s Br. at 31.
See LT Int’l Beauty Sch. v. Bureau of Pro. & Occupational Affs., State Bd. of Cosmetology, 13 A.3d 1004, 1013 (Pa. Cmwlth. 2011) (citing Gombach v. Dep’t of State, Bureau of Comm’ns, Elections & Legis. , 692 A.2d 1127, 1130 (Pa. Cmwlth. 1997)) (“ Adequate notice for procedural due process purposes requires, at a minimum, that the notice contain a sufficient listing and explanation of the charges against a person, so that he or she may prepare an adequate defens e.”). We addressed
a similar issue in Yi . That case involved a veterinarian’s treatment of a dog’s fractured and gangrenous leg. 960 A.2d at 866. This Court explained, in relevant part, that the order to show cause alleged the veterinarian improperly failed to repair the dog’s leg by surgery and did not refer the dog to a surgeon. Id. at 875

- 76. The
Board then found that the veterinarian improperly splinted the dog’s leg, although
the order to show cause never alleged improper splinting. Id. at 876

- 78. We
reasoned that substantial evidence did not support the Board’s findings, and that, because the order to show cause did not put the veterinarian on notice that his manner of splinting the dog’s leg would be at issue, “ the Board was not free to enlarge the scope of the hearing in this way.” Id. at 878. Similarly, our review demonstrates that Petitioner was not on notice that his
fail ure to recommend blood tests for Tiki would be at issue in t his case

. T he order
to show cause did not aver that Petitioner fell below the standards of acceptable and prevailing veterinary medical practice by failing to recommend blood tests. T he
order faulted Petitioner for his alleged failure to properly maintain medical records, inadequate evaluat ion of Tiki, misdiagnosis of her condition , failure to o ffer X

- rays,14

and prescription of inappropriate medication. Before the hearing, Petitioner filed an answer to the order to show cause, which included a “motion for allegations to be made more definite and certain.” R.R. at 16a

. T he hearing examiner issued an order, which granted the motion in part by directing that the Department provide Petitioner with its expert report. Harpster’s report, like the order to show cause, did not fault
Petitioner for his failure to recommend blood tests but focused instead on medical records, X

- rays, and prescriptions. Harpster also maintained that Petitioner failed to recognize the severity of Tiki’s conditio n and misdiagnosed that condition. D espite this, the Board found Petitioner fell below the standard of care by failing to
recommend blood tests. Given this Court’s decision in Yi , the Board should not have

“ enlarge[d] the scope ” of Petitioner’s disciplinary proceeding in this way. 960 A.2d
at 878

. The record confirms, therefore, that substantial competent evidence supports only the Board’s finding that Petitioner violated Section 21(11) of the Act by failing
to recommend X

- rays for Tiki

. Although the Board should not have found a violation of Section 21(11) based on Petitioner ’s failure to recommend blood tests , this does not mean we must disturb the Board’s Section 21(11) determination

. Section 21(11) provides for the imposition of discipline if a veterinarian fall s below the standards of acceptable and prevailing veterinary medical practice, and Petitioner’s failure to recommend X

- rays alone is sufficient to support the Board’s
decision

. Never theless, because the Board relied on the failure to recommend blood
tests when imposing sanctions on Petitioner , we vacate the sanctions provision of the Board’s order and remand for the imposition of sanctions without considering Petitioner’s failure to recommend blood tests. See Kahn v. State Bd. of Auctioneer
Exam’rs , 785 A.2d 512, 514

- 18 (Pa. Cmwlth. 2001) (vacating and remanding “f or a15

determination of sanctions based only upon the disciplinary action imposed by Maine, ” where the State Board of Auctioneer Exa miners penalized Kahn for disciplinary actions against him in Maine and Virginia, but where Kahn did not admit guilt and was not found guilty in Virginia). III. Conclusion Based on the foregoing, we conclude Harpster’s testimony did not create the appearance that the Board intermingled prosecutorial and adjudicatory functions in violation of Petitioner’s right to due process . We further conclude that Harpster’s testimony was competent, and that substantial c ompetent evidence supported the Board’s finding that Petitioner fell below the standards of acceptable and prevailing veterinary medical practice by failing to recommend X

- rays for Tiki on February 18,
2016. Accordingly, we affirm the portion of the Board ’s final memorandum order finding Petitioner violated Section 21(11) of the Act.
The substantial evidence rule exists to allow a party facing a disciplinary proceeding , including Petitioner , an opportunity to mount a defense to facilitate a
fair adminis trative hearing. Because the Board improperly found that Petitioner violated Section 21(11) by failing to recommend blood tests for Tiki when Petitioner had no prior notice that blood tests would be at issue in the proceeding, and because
the Board relied on the failure to recommend blood tests when it sanctioned
Petitioner , we vacate the sanctions provision of the final memorandum order and
remand for the imposition of sanctions without taking the failure to recommend
blood test s into consideration

.

______________________________ STACY WALLACE , JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

James W. Temple, : Petitioner :

: v. : No. 693 C.D. 2021
: Bureau of Professional : and Occupational Affairs, : State Board of Veterinary Medicine, : Respondent :

O R D E R

AND NOW , this 5th day of August, 202 2 , the May 26, 2021 order of the State Board of Veterinary Medicine is AFFIRMED IN PART and VACATED IN
PART

. The portion of the order finding that Petitioner, James W. Temple, DVM, violated Section 21(11) of the Veterinary Medicine Practice Act 1 is AFFIRMED , while the porti on of the order imposing sanctions against Petitioner is VACATED

. The matter is REMANDED for the imposition of sanctions without consideration of Petitioner’s failure to recommend blood tests. Jurisdiction relinquished.

______________________________ STACY WALLACE , Judge

1 Act of December 27, 1974, P.L. 995, as amended , 63 P.S. § 485.21(11).