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Packer v. Bureau of Prof'l & Occupational Affairs

Commonwealth Court of Pennsylvania

September 17, 2014

Angela Maria Packer, R.N., Petitioner
v.
Bureau of Professional and Occupational Affairs, Department of State, State Board of Nursing, Respondent; Hope A. Murphy, R.N., Petitioner
v.
Bureau of Professional and Occupational Affairs, Department of State, State Board of Nursing, Respondent

Appealed from No. 1228-51-2013 and 1498-51-2013. State Agency: State Board of Nursing.

Nicholas J. Godfrey, Pittsburgh, for petitioners.

Carole C. Smith, Senior Counsel-in-Charge, Harrisburg, for respondent.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 966

P. KEVIN BROBSON, Judge

In these consolidated petitions for review, petitioners Angela Maria Packer, R.N., and Hope A. Murphy, R.N. (collectively Petitioners), petition for review of orders of the State Board of Nursing (Board). The Board issued final orders suspending Petitioners' licenses to practice professional nursing for a ten-year period.[1] We affirm the Board's orders.

A prosecuting attorney within the Department of State's Bureau of Occupational Affairs filed petitions for automatic suspension pertaining to Petitioners. By orders mailed August 21, 2013 and October 11, 2013, the Board respectively ordered the suspension of Packer's and Murphy's licenses, based upon guilty pleas Petitioners entered to charges under Section 13(a)(12) of the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act).[2] In its automatic suspension orders, the Board relied upon several provisions of The Professional Nursing Law (Law),[3] including Section 15.1(b) of the Law,[4] Section 15.2 of the Law,[5] and Section 6(c) of the Law.[6]

The Board's orders indicated that Petitioners could choose to file an answer to the petition for automatic suspension and request a hearing, but that such a response could only raise a challenge to the averment in the petitions that Petitioners had been convicted of the offense identified in the petitions-- i.e., the felony violation of Section 13(a)(12) of the Drug Act. Petitioners, who did not contest their felony convictions, did not request hearings.

The Board issued its final orders of automatic suspension with mailing dates of October 11, 2013 (as to Packer), and November 7, 2013 (as to Murphy). Both orders are essentially identical. In those orders, the Board noted that Petitioners had not responded to the notices and orders of automatic suspension. Thus, the Board made its notices and orders of automatic suspension final, directed Petitioners to cease the practice of nursing, and directed Petitioners, if they had not already done so, to return their wall certificates, wallet cards, and registration certificates

Page 967

to the Board within ten days of the mailing date of the final orders.

As indicated above, Packer, out of an abundance of caution, filed a petition for review of the Board's notice and order of automatic suspension, as well as the Board's final order. Murphy filed the single petition for review of the final order. All of the petitions for review raise the same allegations of error on the part of the Board. Petitioners acknowledge that they pled guilty to felony violations of the Drug Act. Petitioners claim, however, that the Board's orders improperly deviate from the Board's previous practice in identical cases, whereby, Petitioners allege, the Board would approve consent decrees for such licensees that provided for a three-year stayed suspension of licenses. Petitioners argue that the Board erred as a matter of law by engaging in a new interpretation of the Law that precludes them from seeking to reacquire the right to practice for a minimum period of ten years based on the automatic suspension.[7]

We begin by quoting the key provisions of the Law relating to suspensions and revocations of nursing licenses. Pursuant to Section 14 of the Law,[8] the Board has the discretion to refuse, suspend, or revoke any license if it finds that certain enumerated circumstances exist. Section 15 of the Law[9] addresses the procedures for suspensions and revocations of licenses following a hearing before the Board:

All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board. All actions of the Board shall be taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom . . . . The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2.

(Emphasis added.) Section 15.1(b) of the Law, however, which was added in 1985, mandates that the Board automatically suspend licenses under certain circumstances prior to a hearing. Of relevance to the circumstance now before the Court, Section 15.1(b) of the Law provides, in part:

(b) A license issued under this act shall automatically be suspended upon the legal commitment to an institution because of mental incompetency from any cause . . ., conviction of a felony under the [Drug Act,] or conviction of an offense under the laws of another jurisdiction, which, if committed in Pennsylvania, would be a felony under [the Drug Act]. . . . Automatic suspension under this subsection shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.

(Emphasis added.) Section 15.2 of the Law, which follows immediately after Section 15.1(b), provides:

Unless ordered to do so by Commonwealth Court or an appeal therefrom, the Board shall not reinstate the license of a person to practice nursing . . . which has been revoked. Any person whose license has been rev ...

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