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Kansky v. Commonwealth

United States District Court, M.D. Pennsylvania

March 6, 2014

LAWRENCE J. KANSKY, DPM, JD, Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, BUREAU OF OCCUPATIONAL AFFAIRS, et al., Defendants.

MEMORANDUM

MALACHY E. MANNION, District Judge.

Pending before the court is the defendants' motion for summary judgment. (Doc. No. 5). Based upon the court's review of the motion and related materials, the defendants' motion will be granted.

By way of relevant background, the plaintiff filed the instant action in the Court of Common Pleas of Luzerne County on March 26, 2013. Service was made upon the defendants on April 8, 2013. On May 7, 2013, the action was removed to this court. (Doc. No. 1).

On June 28, 2013, the defendants filed the pending motion for summary judgment, (Doc. No. 5), along with a statement of material facts, (Doc. No. 7). A brief in support of the defendants' motion was filed on July 15, 2013, (Doc. No. 14), along with supporting exhibits, (Doc. No. 16). On July 31, 2013, the plaintiff filed a response to the defendants' statement of facts, (Doc. No. 26), as well as a brief in opposition to the defendants' motion for summary judgment, (Doc. No. 27). The defendants filed a reply brief on August 14, 2013. (Doc. No. 30).

Summary judgment is appropriate "if the pleadings, the discovery [including, depositions, answers to interrogatories, and admissions on file] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp. , 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen , 903 F.Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249; see also Marino v. Indus. Crating Co. , 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates , 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323-24. The moving party can discharge the burden by showing that "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman , 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex , 477 U.S. at 325. If the moving party meets this initial burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts, " but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny , 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986)). However, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial, " Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex Corp. , 477 U.S. at 322-23; Jakimas v. Hoffman-La Roche, Inc. , 485 F.3d 770, 777 (3d Cir. 2007).

In his complaint, the plaintiff alleges that he practiced podiatry for approximately twenty-four years in Luzerne County, Pennsylvania. On or about October 25, 2007, he alleges that he retired from the practice of podiatry by way of a letter to the State Board of Podiatry, ("Board"), and by the physical act of returning his podiatry license with this letter. The plaintiff alleges that he retired so that he could attend law school and become an attorney.

At the time he sent his letter of retirement, the plaintiff alleges that his license was in "active" standing with the Board and the Pennsylvania Bureau of Professional and Occupational Affairs, ("BPOA"). Upon receipt of his written request, the plaintiff alleges that the Board and the BPOA placed his license on "inactive" status and placed his license on file in Harrisburg, Pennsylvania.

On November 2, 2007, the plaintiff alleges that defendant Basil Merenda, then Commissioner of the BPOA[1], signed and sent him a letter which indicated that his license was on "inactive" status and informed him of the terms upon which he could "reactivate" his podiatry license. In order to reactive his license, the plaintiff alleges that the letter stated that he would need to complete a "Reactivation Application" and submit it along with evidence of completion of the required continuing medical education, ("CME"), credits and the appropriate fees.

In the Spring of 2008, the plaintiff alleges that the Board falsely reported to the National Data Bank on health care providers and to the press that he had voluntarily surrendered his podiatry license due to disciplinary action. Plaintiff alleges that this was legally impossible as he had already inactivated his licence when he retired on October 25, 2007. In order to voluntarily surrender his license, the plaintiff alleges that he would had to have completed a special form with the words "voluntary surrender of license" on it and physically returned his "active" license to the respective Board or Bureau. Since his license was "inactive" due to his retirement, the plaintiff alleges that he could not have voluntarily surrendered an "active" license. Moreover, the plaintiff alleges that at no time did the Board ask him to voluntarily surrender his license, nor did the Board ever supply him with the special voluntary surrender form to complete, sign and submit back to them as required.

In 2011, the plaintiff alleges that he graduated with Honors from the University of Baltimore, School of Law, passed the Pennsylvania Bar Exam, and began the practice of law. As part of his legal licensing, the plaintiff alleges that he was required to pass a rigorous and detailed character and fitness examination.

In the Fall of 2012, the plaintiff alleges that he decided to reactivate his podiatry license and expended money and time to acquire fifty hours of CME credits in order to do so. On or about November 5, 2012, the plaintiff alleges that he submitted a completed "Reactivation Application, " with copies of his CME certificates and a check in the amount of $395 for appropriate fees. In return, the plaintiff alleges that he received an undated and unsigned generic form letter from the Board stating that, since he had voluntarily surrendered his podiatry license due to disciplinary action, he needed to petition the Board in writing to request reinstatement.

On November 17, 2012, the plaintiff alleges that he faxed a letter to the Board counsel explaining that he never voluntarily surrendered his license. When he received no response, on December 17, 2013, the plaintiff alleges that he sent a second letter requesting the status of his Reactivation Application. Again, the plaintiff alleges he received no response. On January 7, 2013, the plaintiff alleges that he faxed and sent by mail a third letter which put Board counsel on notice that he would be filing a lawsuit "against all those who have wronged him from 2007 to the present." On January 29, 2013, the plaintiff alleges that he received a response from the State Board of Pharmacy Counsel, which had no relationship with the plaintiff, and so he ignored the letter.

The plaintiff alleges that the BPOA and/or the Board and all its associated individuals, agents, employees, and Board members ignored his inquiries concerning the reactivation of his license and unlawfully prevented him from practicing podiatry. The plaintiff alleges that he has suffered significant damages since November 2, 2007, as a result of the defendants' actions.

Based upon the above allegations, the plaintiff sets forth eight counts in his complaint: Count I, Negligence; Count II, Fraud or Negligent Misrepresentation; Count III, Abuse of Process; Count IV, Intentional or Negligent Interference of Prospective Economic Advantage; Count V, Violation of State and Federal Due Process Rights; Count VI, Civil Conspiracy; Count VII, Intentional Infliction of Emotional Distress; and Count VIII, Punitive Damages. The plaintiff is seeking compensatory and punitive damages, as well as immediate reactivation of his podiatry license.

In response to the allegations set forth in the plaintiff's complaint, the defendants have submitted a statement of material facts supported by various exhibits which confirms that the plaintiff did, indeed, practice podiatry in Luzerne County, Pennsylvania, for approximately twenty-four years.

Moreover, as alleged by the plaintiff, on October 25, 2007, the plaintiff sent a letter to the Board stating that he completely and permanently retired from the practice of podiatry and enclosed his current license. The plaintiff further ...


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