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Kearney v. Bureau of Professional And Occupational Affairs

Commonwealth Court of Pennsylvania

October 16, 2017

Timothy S. Kearney, PA-C, Petitioner
v.
Bureau of Professional and Occupational Affairs, State Board of Medicine, Respondent

          Argued: September 11, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          PATRICIA A. MCCULLOUGH, JUDGE

         Timothy S. Kearney (Petitioner) petitions for review of the September 13, 2016 order of the Department of State, State Board of Medicine (Board), denying his petition for reinstatement of his license to practice as a physician assistant (PA) in Pennsylvania. We reverse and remand.

         On October 22, 1999, Petitioner was issued a license to practice as a PA in Pennsylvania and last practiced as a PA on or about March 18, 2010, when he voluntarily admitted himself into the Clearbrook Treatment Center (Clearbrook) for drug addiction issues. (Hearing Examiner's Findings of Fact at Nos. 4, 8.)

         Petitioner's addiction originated as a result of chronic back problems when he was nineteen years old, for which he underwent two lumbar surgeries and was prescribed a narcotic pain medication, Hydrocodone. Around the time Petitioner developed his addiction, he was diagnosed with depression. Ultimately, Petitioner began diverting pain medications from his work for personal use, illicitly consuming Oxycontin and using Fentanyl patches. Petitioner was suspended by his employer when it discovered the same.[1] (Hearing Examiner's Findings of Fact at Nos. 21-22, 24-26.)

         On August 16, 2011, Petitioner pled guilty to one felony count of obtaining a controlled substance by misrepresentation or fraud in violation of section 13(a)(12) of the Controlled Substance, Drug, Device and Cosmetic Act (CSA). Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a)(12).[2]

         In his written guilty plea colloquy, Petitioner responded "Yes" when asked whether he understood that, by pleading guilty, he specifically admitted to doing the criminal acts for which he was charged. As part of the plea agreement, the Commonwealth decided to nolle pros all of the remaining counts in the criminal information.[3] On November 1, 2011, the Court of Common Pleas of Lackawanna County (trial court) sentenced Petitioner to ten months of house arrest along with a consecutive term of five years of probation. (Reproduced Record (R.R.) at 19a, 31a, 34a.)

         By order dated December 22, 2011, the Board automatically suspended Petitioner's license to practice as a PA for no less than ten years pursuant to section 40(b) of the Medical Practice Act of 1985 (Act).[4] The Board based its decision on Petitioner's guilty plea, wherein he admitted that he committed a felony violation of the CSA. (Hearing Examiner's Findings of Fact at Nos. 9-11, 38; R.R. at 15a-17a.)

         Meanwhile, in December 2011, the trial court effectively vacated and/or modified Petitioner's sentence.[5] In lieu of the prior sentence, Petitioner was enrolled in the Lackawanna County Adult Treatment Court (Drug Court Program). Per the terms of the Drug Court Program, Petitioner was required to submit to random drug screening; undergo counseling; meet with his probation officer on a weekly basis; and attend weekly meetings with the program team, including the judge, probation officer, and drug and alcohol counselors. Following his graduation from the Drug Court Program in approximately December 2013, Petitioner was subjected to six months of criminal probation. (Hearing Examiner's Findings of Fact at Nos. 38-40.)[6]

         On June 20, 2014, Petitioner appeared before the trial court for formal disposition of his motion to withdraw the August 16, 2011 guilty plea and request to be admitted into the Drug Court Program. On behalf the Attorney General's Office, the District Attorney stated that the Commonwealth had no objection to the motion. (R.R. at 3a-6a.) When asked by the presiding judge in the matter whether he committed the crime of which he was charged, Petitioner responded "Yes." (R.R. at 3a-4a; Hearing Examiner's Findings of Fact at No. 15.) The trial court then explained that Petitioner had completed all the terms and conditions of the Drug Court Program and had served his consecutive term of six-months of probation without incident. The trial court said that Petitioner was "entitled to have the case dismissed, " dismissed the case on the record, and informed Petitioner that "upon completion of the adequate terms the case will also be expunged." (R.R. at 5a-6a.)

         By order dated that same day, the trial court dismissed Petitioner's criminal charges based upon his successful completion of the Drug Court Program and probationary term. (Hearing Examiner's Findings of Fact at No. 14.)

         By letter filed December 29, 2014, Petitioner requested that the Board reinstate his license given the extensive addiction treatment he received, the dismissal of his criminal charges, and his improved understanding of addiction and the treatment it requires. The matter was assigned to a Hearing Examiner, who conducted a hearing and issued a proposed adjudication and order.

         By proposed order dated April 27, 2015, the Hearing Examiner recommended denying Petitioner's appeal and maintaining the indefinite suspension of his license. The Hearing Examiner concluded that Petitioner's "admissions of guilt" in his written plea colloquy and statement before the presiding judge during the June 20, 2014 hearing constituted "convictions" under the Act. As such, the Hearing Examiner found that Petitioner was precluded from petitioning the Board for reinstatement of his PA license pursuant to section 43(b) of the Act because the ten-year period had not yet elapsed from the date of his conviction. Notwithstanding this determination, the Hearing Examiner also concluded that "Petitioner has satisfied his burden of establishing that he is capable of resuming competent practice as a [PA] with reasonable skill and safety to patients, subject to monitoring by the [Physician's Health Programs], as the PHP deems necessary." (Hearing Examiner's Conclusions of Law at No. 8; see supra n.1.)

         By final order dated September 13, 2016, the Board upheld the Hearing Examiner's decision, denied Petitioner's petition for reinstatement, and determined that his license shall remain indefinitely suspended. In doing so, the Board basically followed the reasoning of the Hearing Examiner, concluding that Petitioner had a "conviction" under the Act and the CSA. Consequently, the Board found it irrelevant to decide, at that point in time, whether Petitioner was capable of resuming competent practice as a PA, tallying up his ineligibility for reinstatement until at least 2021. (Board's decision at 2-9; see supra n.6.)

         On appeal to this Court, [7] Petitioner argues that the Board erred in interpreting the term "conviction" and its subcomponent phrase "admission of guilt" in section 40(b) of the Act. Petitioner contends the Board's use of the information in his written guilty plea colloquy and statement at the hearing was erroneous and that the Board, in essence, created a "conviction" where none had occurred. According to Petitioner, the Board misapprehended the fact that his criminal charges were dismissed and the record of the criminal matter had later been expunged, averring that, once his criminal record had been expunged, he returned to "pre-conviction" status.[8] Petitioner also posits that the Board's decision undermines the rehabilitative nature and goals of the Drug Court Program.

         From a broad perspective, our goal here is to discern the meaning of terms and phrases in statutes to decide whether Petitioner's acceptance into - and successful completion of - the Drug Court Program constituted an "admission of guilt" and therefore a "conviction" under the Act, especially considering that the trial court expunged the underlying criminal record.[9]

         The Act provides, in pertinent part, that "[a] license or certificate issued under this act shall automatically be suspended upon . . . conviction of a felony under the act . . . known as [t]he [CSA] . . . ." 63 P.S. §422.40(b). Section 40(b) of the Act clarifies that "[a]s used in this section, the term 'conviction' shall include a judgment, an admission of guilt or a plea of nolo contendere." Id.; see also section 2 of the Act, 63 P.S. §422.2 (defining "conviction" as "[a] judgment of guilt, an admission of guilt or a plea of nolo contendere.").[10]

         The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly and, generally, the plain language of a statute is the best indication of the General Assembly's intent. See 1 Pa.C.S. §1921(a). While the Act provides for automatic suspension of a license for a felony "conviction" under the CSA, the Act incorporates the CSA by express reference. By all reasonable means, this Court should unify two or more statutes in a cohesive and consistent fashion and avoid interpreting one statute in a manner that repeals or is otherwise incongruous with another statute. See 1 Pa.C.S. §§1932, 1971(c).

         Under section 17 of the CSA, a trial court "may place a person on probation without verdict if the person pleads nolo contendere or guilty to any nonviolent offense under [the CSA] and the person proves he is drug dependent." 35 P.S. §780-117. Importantly, that section also states that "[u]pon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him, " adding that the "dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever . . . ." 35 P.S. §780-117(3) (emphasis added). Section 19 of the CSA further declares that records of arrest or prosecution under the Act will be expunged. When a court orders expungement, the records "shall not . . . be regarded as an arrest or prosecution for the purpose of any statute or regulation or license or questionnaire or any civil or criminal proceeding or any other public or private purpose." 35 P.S. §780-119(b).

         As a surface matter, we observe that a plain reading of the statutes indicates that, while the Act includes an "admission of guilt" as a subpart of the definition of a "conviction, " the CSA commands that a final disposition of "probation without verdict" does not constitute a "conviction." Under the procedure in section 17 of the CSA for a "probation without verdict, " an individual's "plea" is, in essence, held in abeyance, or not accepted, until there is a final determination by the court as to whether the individual has satisfactorily completed the terms and conditions of probation; if the individual does so, the trial court dismisses the charges and there is no verdict or finding of guilt in the matter. Consequently, in order to afford the phrase "for any purpose whatever" in section 17 of the CSA its full linguistic effect, we can reasonably interpret it to mean that the oral and written statements made to a trial court in connection with a "probation without verdict" cannot be a considered a "conviction" for purposes of section 40(b) of the Act. To be sure, this construction is the only way in which the term "conviction" in the Act can be harmonized with the same term in the CSA. Indeed, following dismissal of the underlying charges, the criminal record is expunged pursuant to section 19 of the CSA, and the criminal record cannot be used at all in an administrative licensing matter - not even as proof that the individual was arrested or prosecuted.

         In some statutes, our General Assembly, without using the word "conviction, " has expressly included the phrase "probation without verdict" to describe the basis upon which a licensing board can refuse, suspend, or revoke a professional license.[11] However, the General Assembly did not insert this or similar language in the Act. Nor did the General Assembly inject "probation without verdict" alongside "admission of guilt" in the Act's definition of a "conviction." Inferentially, the divergence in word usage among the CSA, the Act, and other similar statutes is indicative of the General Assembly's desire to conceptually separate an "admission of guilt" from a "probation without verdict, " suggesting to courts that the two should not be perceived or linked as being one and the same. See Fletcher v. Pennsylvania Property & Casualty Insurance Guaranty Association, 985 A.2d 678, 684 (Pa. 2009); Kirkpatrick v. Bureau of Professional & Occupational Affairs, State Board of Barber Examiners, 117 A.3d 1286, 1290-94 (Pa. Cmwlth. 2015).

         On the whole, our precedent has clearly concluded as much. See Carabello v. Bureau of Professional Occupational Affairs, State Board of Pharmacy, 879 A.2d 873, 875-76 (Pa. Cmwlth. 2005); Warren County School District v. Carlson, 418 A.2d 810 (Pa. Cmwlth. 1980); see also Klinger v. Department of ...


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