“The Board could have sought revocation of Ms. McGrath’s license [under Section 14] . . . but it did not.” (emphasis omitted)
How later courts described this case
- “The Board could have sought revocation of Ms. McGrath’s license [under Section 14] . . . but it did not.” (emphasis omitted)
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shannon McGrath, :
Petitioner :
:
v. : No. 1001 C.D. 2015
: Submitted: May 11, 2016
Bureau of Professional and :
Occupational Affairs, State Board of :
Nursing, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: August 24, 2016
Shannon McGrath, proceeding pro se, petitions for review of the Order of
the Bureau of Professional and Occupational Affairs, State Board of Nursing
(Board) that affirmed the suspension of Ms. McGrath’s license to practice
professional nursing for no less than 10 years from the date of her conviction of
violating The Controlled Substance, Drug, Device and Cosmetic Act1 (Drug Act)
1
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 – 780-144.
and until her license is reinstated by the Board.2 On appeal, Ms. McGrath argues
that the Board erred in: (1) changing its interpretation of Sections 15.1(b) and 15.2
of The Professional Nursing Law3 (Nursing Law) to require that her license be
automatically suspended for a mandatory period of 10 years before she can seek
the reissuance of her license without promulgating a valid rule or regulation setting
forth this new interpretation; and (2) applying this Court’s decision in Packer v.
Bureau of Professional and Occupational Affairs, Department of State, State Board
of Nursing, 99 A.3d 965 (Pa. Cmwlth. 2014), petition for allowance of appeal
denied, 109 A.3d 680 (Pa. 2015), which affirmed that new interpretation. Because
we conclude that Packer’s punitive interpretation of the ambiguous statutory
provisions of the Nursing Law violates the principle that ambiguities in penal
statutes must be strictly construed against the government, Section 1928(b)(1) of
the Statutory Construction Act of 1972 (Statutory Construction Act), 1 Pa. C.S. §
1928(b)(1); Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596,
600 (Pa. Cmwlth. 2011) (en banc) (discussing the common law rule of lenity), we
overrule Packer. Therefore, we reverse the Board’s Order to the extent that it
mandates a 10-year suspension of Ms. McGrath’s license and requires, based on
Packer, Ms. McGrath to reapply for a new license under Section 6(c)(1) of the
Nursing Law, rather than request reissuance of her suspended license pursuant to
Section 15 of the Nursing Law, 63 P.S. §§ 216(c)(1), 225.
2
The Order further directed Ms. McGrath to cease practicing nursing and to return her
wall and registration certificates, along with her wallet cards, to the Board within 10 days of the
Order.
3
Act of May 22, 1951, P.L. 317, as amended, added by Section 13 of the Act of
December 20, 1985, P.L. 409, 63 P.S. §§ 225.1(b), 225.2.
2
I. Background
A. Factual Background
Ms. McGrath is a licensed registered nurse. On August 29, 2013, the
Commonwealth filed a Petition for Automatic Suspension (Petition) requesting that
Ms. McGrath’s license automatically be suspended pursuant to Section 15.1(b) of
the Nursing Law, 63 P.S. § 225.1(b) (requiring the automatic suspension of a
nursing license following a felony conviction for violating the Drug Act).
Attached to the Petition were certified copies of records from the Court of
Common Pleas of Allegheny County indicating that Ms. McGrath had been
“convicted of one count of Acquisition or Possession of a Controlled Substance by
Misrepresentation, Fraud, Forgery, Deception or Subterfuge, a felony under
Section 13(a)(12) of” the Drug Act, 35 P.S. § 780-113(a)(12).4 (Final Adjudication
at 1 (footnote omitted).) On September 20, 2013, the Board issued a Notice and
Order of Automatic Suspension (Notice and Order) automatically suspending Ms.
McGrath’s license and advising her of her hearing and appeal rights. (Notice and
Order, C.R. Item 1.) Ms. McGrath requested a hearing and, because her criminal
charges were being appealed, a stay of the suspension.
B. Statutory Language and the Board’s Varying Interpretations Thereof
Before detailing the Board’s determination, we set forth the relevant
statutory language from the Nursing Law that governs the Board’s authority to
suspend, revoke, and reissue a professional nursing license. Section 14 of the
4
Ms. McGrath acknowledged “her plea of guilt to one count” of violating Section
13(a)(12) of the Drug Act in a “Guilty Plea Explanation of Defendant’s Rights,” and she
received probation without a verdict. (Final Adjudication at 1 n.2 (internal quotation omitted).)
3
Nursing Law sets forth the discretionary bases for suspending or revoking a
professional nursing license. Under that section, the Board may suspend or revoke
a license for, inter alia: “being convicted of, pleading guilty or nolo contendere, to
a crime of moral turpitude”; or “receiv[ing] probation without verdict . . . in the
disposition of felony charges.” 63 P.S. § 224(a)(5). Section 15 describes the
process of suspending, revoking, and reissuing licenses, stating:
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,
in accordance with the provisions in Title 2 of the Pennsylvania
Consolidated Statutes (relating to administrative law and procedure),
or any amendment or reenactment thereof, relating to adjudication
procedure. 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.
63 P.S. § 225 (emphasis added). This section thus distinguishes between
suspended and revoked licenses, permitting the Board to reissue any suspended
license, while limiting the circumstances under which the Board can reissue
revoked licenses. Section 15.1(b) of the Nursing Law addresses automatic
suspensions of licenses and provides:
A license issued under this act shall automatically be suspended
upon the legal commitment to an institution because of mental
incompetency from any cause upon filing with the Board a certified
copy of such commitment, 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]. As used in this section the term “conviction” shall include
a judgment, an admission of guilt or a plea of nolo contendere.
Automatic suspension under this subsection shall not be stayed
4
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.
63 P.S. § 225.1(b) (emphasis added). Immediately following Section 15.1 is
Section 15.2, which, by its terms, applies to revoked licenses and states:
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 or dietetics-nutrition which has been revoked. Any
person whose license has been revoked may reapply for a license,
after a period of at least five (5) years, but must meet all of the
licensing qualifications of this act for the license applied for, to
include the examination requirement, if he or she desires to practice
at any time after such revocation.
63 P.S. § 225.2 (emphasis added). The licensing qualifications for applicants are
found in Section 6 of the Nursing Law, subsection (c), which provides, in pertinent
part, that:
(c) The Board shall not issue a license or certificate to an applicant
who has been convicted of a felonious act prohibited by [the Drug
Act] or convicted of a felony relating to a controlled substance in a
court of law of the United States or any other state, territory or
country unless:
(1) at least ten (10) years have elapsed from the date of conviction;
63 P.S. § 216(c)(1) (emphasis added).
Previously, the Board interpreted this statutory language as permitting it to
consider each automatic license suspension on a case-by-case basis to determine
the length of the suspension and to approve consent decrees setting forth the term
of the suspension. Packer, 99 A.3d at 967, 970. The Board’s interpretation relied
on Section 15, which gives the Board discretion in imposing and reviewing license
suspensions under the Nursing Law. 63 P.S. § 225. However, in 2013, the Board
5
changed its interpretation of these provisions without, as observed in Packer,
engaging in either formal interpretation, i.e., promulgating regulations, or informal
interpretation, i.e., issuing policy guidelines, regarding its new interpretation.
Packer, 99 A.3d at 969-71. Rather, the Board “altered its application of the
[Nursing] Law based upon a directive from its parent agency, the Department of
State [(Department)], Bureau of Professional and Occupational Affairs
[(Bureau)].” Id. at 970. According to the Board, “the [Bureau] made the
determination that the language in all the acts with automatic suspension
provisions authorized the boards to impose a [10] year automatic suspension and
that all healthcare providers should be treated equally.” Id. at 970 n.10 (internal
quotation omitted). Thus, “until . . . the Bureau or the Department issued an
unidentified directive in 2013 to all health profession boards” indicating that “the
Board (and apparently prosecutors in the Bureau)” had to apply Sections 15.1 and
15.2 in a non-discretionary manner, the Board and the Bureau’s prosecutors
interpreted the statutory language as authorizing the exercise of discretion in
determining the length of a suspension issued pursuant to Section 15.1(b). Packer,
99 A.3d at 970.
C. The Board’s Determination Here
A Board Hearing Examiner held a formal hearing on November 7, 2013, at
1:30 p.m., at which Ms. McGrath was not present. The Commonwealth offered
into evidence the Petition, the Notice and Order, and certified records from Ms.
McGrath’s criminal proceedings and rested. Following the admission of these
6
documents, the Hearing Examiner concluded the hearing at 1:49 p.m.5 Ms.
McGrath arrived at 2:15 p.m., but the hearing had already concluded.6 Ms.
McGrath requested a new hearing on November 22, 2013. By Proposed
Memorandum and Order dated February 18, 2014, the Hearing Examiner denied
the request for a new hearing and affirmed the Notice and Order. The Board
indicated that it was going to review the Proposed Memorandum and Order. Ms.
McGrath filed a Brief on Exceptions, to which the Commonwealth filed a Reply
Brief.
After reviewing the entire record and applying its new non-discretionary
interpretation of the Nursing Law, the Board issued its Final Adjudication and
Order affirming the mandatory 10-year suspension of Ms. McGrath’s license based
on her felony conviction for a single count of violating Section 13(a)(12) of the
Drug Act. The Board held that, pursuant to Section 15.1(b) of the Nursing Law,
this felony conviction mandated that her license be automatically suspended and
could “only be restored pursuant to the requirements for suspension and
revocations.” (Final Adjudication at 5.) Citing Section 15.2 of the Nursing Law,
the Board concluded that “revoked licensees [must] meet all of the licensure
requirements at the time of restoration” and that Ms. McGrath was “precluded by
Section 6(c)(1) of the [Nursing Law], 63 P.S. § 216(c)(1), from being relicensed
5
The Board acknowledges that the hearing began at 1:45 p.m. and ended at 1:49 p.m.,
thus, the Commonwealth took only four minutes to present its case. (Board’s Br. at 5, n.4.)
6
Ms. McGrath indicates that on the morning of the hearing, she telephoned the Board’s
receptionist three times to advise that she was running late, there was no answer, and she left a
message advising the Board that she would be late for the hearing. (Ms. McGrath’s Request for
New Hearing, C.R. Item 5; Br. of Exceptions at 1, C.R. Item 9; Ms. McGrath’s Br. at 6.) She
further points out that she agreed to the plea agreement based on the representations of the
district attorney and her criminal defense lawyer that her plea agreement would have no effect on
her professional license. (Ms. McGrath’s Br. at 5.)
7
for [10] years.” (Final Adjudication at 5 (emphasis added).) Section 6(c)(1),
which applies to new applicants, requires a 10-year period between an application
for a new license and a felony conviction under the Drug Act. 63 P.S. § 216(c)(1).
Although Ms. McGrath objected to the change in the Board’s interpretation of their
review under Section 15.1, the Board responded that Packer held that the Board’s
new interpretation was reasonable. (Final Adjudication at 6 (citing Packer, 99
A.3d at 970 n.11).) Finally, the Board rejected, as not relevant, Ms. McGrath’s
argument that she was appealing her conviction, claiming that it had no discretion
where there was a felony conviction under the Drug Act. (Id.) Ms. McGrath now
petitions for review of that Order.7
II. Discussion
A. Packer and Principles of Statutory Construction
The Board relied on Packer to deny Ms. McGrath’s appeal because, in that
case, this Court affirmed the Board’s new interpretation of Sections 15.1(b) and
15.2 of the Nursing Law as requiring a mandatory 10-year suspension of a
professional license for a nurse whose license was suspended because of a felony
conviction under the Drug Act. (Final Adjudication at 6 (citing Packer, 99 A.3d at
970 n.11).) After reviewing the above-cited statutory language in Packer, we
stated that “the statute lacks clarity with regard to which provision or provisions of
the [Nursing] Law govern the length of time of an automatic suspension under
Section 15.1(b) of the [Nursing] Law, [and] . . . conclude[d] that this provision is
7
“This Court’s scope of review is limited to determining whether there has been a
violation of constitutional rights, [whether] errors of law [have been] committed, or whether
findings of fact are supported by substantial evidence.” Bethea-Tumani v. Bureau of Prof’l and
Occupational Affairs, 993 A.2d 921, 925 n.6 (Pa. Cmwlth. 2010).
8
ambiguous.” Packer, 99 A.3d at 969. Thus, we found it necessary to resort to the
rules of statutory construction to ascertain the General Assembly’s intent and
resolve the ambiguity.8 Those well-settled rules provide the following.
When the words of the statute are not explicit, the intention of the
General Assembly may be ascertained by considering, among other
matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or
similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa. C.S. § 1921(c). In addition to these principles, we are guided by others,
including that: statutes should be interpreted as a whole, Commonwealth v. Lurie,
569 A.2d 329, 331 (Pa. 1990); courts “have no authority to add or insert language
into a statute” and should not, through interpretation, add a requirement that the
8
The touchstone of interpreting statutory language “is to ascertain and effectuate the
intention of the General Assembly.” Section 1921 of the Statutory Construction Act, 1 Pa. C.S.
§ 1921(a); Colville v. Allegheny Cnty. Ret. Bd., 926 A.2d 424, 444 (Pa. 2007). “Every statute
shall be construed, if possible, to give effect to all of its provisions.” 1 Pa. C.S. § 1921(a). A
guiding principle of statutory construction is that, “[w]hen the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.” 1 Pa. C.S. § 1921(b). Only when the words of a statute are unclear or ambiguous will
courts engage in statutory construction to determine the intent of the General Assembly. 1 Pa.
C.S. § 1921(c); Zane v. Friends Hosp., 836 A.2d 25, 31 (Pa. 2003). “A statute is ambiguous
when there are at least two reasonable interpretations of the text under review.” Warrantech
Consumer Prod. Services, Inc. v. Reliance Ins. Co. in Liquidation, 96 A.3d 346, 354-55 (Pa.
2014).
9
General Assembly did not include, Summit School, Inc. v. Department of
Education, 108 A.3d 192, 199 (Pa. Cmwlth. 2015); and “where the legislature
includes specific language in one section of a statute and excludes it from another,
it should not be implied where excluded,” Pennsylvania State Police, Bureau of
Liquor Control Enforcement v. Prekop, 627 A.2d 223, 226 (Pa. Cmwlth. 1993). It
is presumed “[t]hat the General Assembly does not intend a result that is absurd,
impossible of execution or unreasonable.” Section 1922(1) of the Statutory
Construction Act, 1 Pa. C.S. § 1922(1).
Lastly, where a statute imposes punishment, such as the suspension or
revocation of a professional license, for specified acts, such statutes are penal in
nature. See Pa. State Real Estate Comm’n v. Keller, 165 A.2d 79, 80 (Pa. 1960)
(holding that the Real Estate Broker’s Law,9 which provided for the investigation
of the acts of real estate brokers and the suspension or revocation of their licenses
for specified acts, “is penal and must be strictly construed”). Section 1928(b)(1) of
the Statutory Construction Act, 1 Pa. C.S. § 1928(b)(1), requires that penal
provisions “shall be strictly construed.” Consistent with this statutory requirement
is the rule of lenity, which originated in common law, and provides that:
[a]mbiguities should and will be construed against the government.
This principle has its foundation in the rule of lenity that provides that
any ambiguity in a criminal statute will be construed in favor of the
defendant. The rule of lenity requires a clear and unequivocal
warning in language that people generally would understand, as to
what actions would expose them to liability for penalties and what the
9
Act of May 1, 1929, P.L. 1216, as amended, 63 P.S. §§ 431-448, repealed by Section
901 of the Act of February 19, 1980, P.L. 15. The Real Estate Broker’s Law was replaced with
the Real Estate Licensing and Registration Act, Act of February 19, 1980, P.L. 15, as amended,
63 P.S. §§ 455.101-455.902.
10
penalties would be. Application of the rule of lenity extends beyond
the context of criminal statutes.
Richards, 20 A.3d at 600 (emphasis added) (internal quotation omitted).
“Underpinning the rule of lenity is the fundamental principle of fairness that gives
validity to our laws” by providing individuals the clear and unequivocal warning
discussed above. Sondergaard v. Dep’t of Transp., Bureau of Driver Licensing, 65
A.3d 994, 997 (Pa. Cmwlth. 2013). “To apply the rule of lenity, it is not enough
that a statute is penal it must be ambiguous as well.” Id. at 999. With these
guiding principles in mind, we turn to Packer’s interpretation of the ambiguous
language of the Nursing Law and the parties’ arguments.
B. Packer’s Interpretation of this Statutory Language
Packer involved a registered nurse who had pled guilty to violating Section
13(a)(12) of the Drug Act, which resulted in her professional license being
automatically suspended pursuant to Section 15.1(b) of the Nursing Law. Packer,
99 A.3d at 966. Ms. Packer was advised that her automatic suspension could not
be reviewed for 10 years, and she appealed that determination to this Court arguing
that the Board had changed its interpretation of the Nursing Law and this new
interpretation was erroneous. After concluding that Section 15.1(b) of the Nursing
Law was ambiguous, this Court considered various ways of construing that
language in order to ascertain the General Assembly’s intent. Id. at 969.
The Board, in Packer, initially argued that its interpretation of Sections
15.1(b) and 15.2 was entitled to administrative deference, but this Court rejected
that argument, noting that such deference was not warranted given the Board’s lack
of “formal . . . or even an informal interpretation” and the fact that the
interpretation was raised, in the first instance, in a brief on appeal. Packer, 99 A.3d
11
at 970-71. This Court further declined to consider the language of other
professional licensing statutes, some of which expressly contained a time period
for automatic suspension and others that did not, because
[w]e do not read anything into the General Assembly’s decision not to
specify in Section 15.1(b) of the [Nursing] Law the length of an
automatic suspension, particularly because Section 15.1(b) mandates
suspensions for more than just convictions under the Drug Act. . . .
Also, the General Assembly may have concluded that such a
provision in Section 15.1(b) would be redundant, given that a person
seeking to become fully-licensed following an automatic suspension
would be required under Section 15.2 of the [Nursing] Law to comply
with Section 6(c) of the [Nursing] Law.
Id. at 973. Ultimately, Packer concluded that the Board’s interpretation was more
reasonable because it gave effect to the term “hereinafter” in Section 15.1(b), it
“appear[ed] that the General Assembly, in mandating license suspensions under
Section 15.1(b) for certain drug convictions . . . , viewed [that] circumstance[] to
be sufficiently serious that it removed from the Board its discretion not to suspend
or revoke a license,” and “it would seem unlikely that the General Assembly would
then allow the Board to exercise discretion and lift an automatic suspension at any
time.” Id. at 972. Thus, Packer affirmed the Board’s imposition of the restoration
procedures for revoked licenses to a license suspended under Section 15.1(b). The
fact that Section 15.2 does not refer to suspended licenses, but only to revoked
licenses, was considered “inconsequential” to the Court’s analysis. Id. at 973.
Further, Packer did not consider the penal nature of these ambiguous provisions in
its affirmation of the Board’s imposition of an automatic, mandatory 10-year
license suspension under Section 15.1(b).
12
C. The Parties’ Arguments in this Matter
At our direction,10 the parties were requested to address whether: (1) this
Court’s interpretation in Packer was consistent with Section 1928(b)(1) of the
Statutory Construction Act and the rule of lenity; and (2) the Board should review
reissuance requests for licenses suspended under Section 15.1(b) of the Nursing
Law under the discretionary standard set forth in Section 15 or under the non-
discretionary, more restrictive provisions of Section 15.2. Thus, in addition to the
arguments set forth in their initial briefs related to, respectively, whether the Board
erred in relying on Packer and in changing its interpretation of the Nursing Law
without promulgating a rule or regulation setting forth that new interpretation, and
that Packer mandates the result here, the parties filed supplemental memoranda of
law.
10
This Court, by order dated March 16, 2016, directed the parties to address the
following issues in supplemental memoranda of law, which would be considered by the Court
sitting en banc:
1. Whether this Court’s interpretation of [the Nursing Law] set forth in Packer . . . ,
is consistent with Section 1928(b)(1) of the Statutory Construction Act . . . , 1 Pa.
C.S. § 1928(b)(1) (requiring that penal statutory provisions be strictly construed),
and the rule of lenity, see Richards. . . . (requiring that ambiguities in penal
provisions be construed against the government and that the statutory provision
use generally understandable language to identify the actions that expose a person
to penalties and what the penalties would be).
2. Whether the Board should review reinstatement requests related to automatic
suspensions made pursuant to Section 15.1(b) of the Nursing Law under the
general reinstatement provisions of Section 15 or under the more restrictive
provisions governing the reinstatement of revoked licenses at Section 15.2, 63
P.S. §§ 225, 225.1(b), 225.2.
(Order, Mar. 16, 2016.)
13
Ms. McGrath argues that Packer’s interpretation is inconsistent with Section
1928(b)(1) of the Statutory Construction Act, as the sections involved are penal in
nature and yet Packer imposed a harsher punishment than others available in the
Nursing Law. She asserts that, despite the other provisions of the Nursing Law
that address suspensions, Packer’s interpretation singles out these particular
suspensions to impose a mandatory 10-year suspension, which does not consider
the context of the entire Nursing Law. Ms. McGrath maintains that the General
Assembly is aware of the difference between a suspended license and a revoked
license, as it distinguished between the two in Section 15 of the Nursing Law. In
that section, Ms. McGrath asserts, the General Assembly sets forth one way of
reissuing suspended licenses, under Section 15, and a second way of reissuing
revoked licenses, under Section 15.2. According to Ms. McGrath, “‘where a
section of a statute contains a given word, the omission of such word from a
similar section of the statute shows a different legislative intent,’” and the General
Assembly did not include the phrase “suspended license” in Section 15.2 and that
phrase should not be read into this provision. (Ms. McGrath’s Supplemental Mem.
of Law at 6 (quoting Com. v. Berryman, 649 A.2d 961, 965 (Pa. Super. 1994)).)
Absent specific language in Section 15.2 requiring that section to apply to
suspended licenses, Ms. McGrath contends that the general provisions related to
the Board’s review of suspended licenses of Section 15 should apply to an
automatic suspension imposed under Section 15.1(b).
The Board argues that there is no need to apply Section 1928(b)(1) and the
rule of lenity because, following the principles of statutory construction, this Court
concluded in Packer that when the relevant provisions of the Nursing Law are read
14
together, Section 15.1(b) of the Nursing Law is not ambiguous.11 This
interpretation, according to the Board, is consistent with the Supreme Court’s
decision in Whalen v. Department of Transportation, Bureau of Driver Licensing,
32 A.3d 677 (Pa. 2011), and this Court’s decisions in, among others, Harmer v.
Pennsylvania Board of Probation and Parole, 83 A.3d 293 (Pa. Cmwlth. 2014);
Sondergaard, 65 A.3d 998-99; Richards, 20 A.3d at 600-01; and Anderson v.
Pennsylvania Board of Probation and Parole, 472 A.2d 1168 (Pa. Cmwlth. 1984).
The Board asserts that, in these cases, the respective courts held that where the
general rules of statutory construction can ascertain the General Assembly’s intent,
it is not necessary to resort to the rule of lenity or Section 1928(b)(1) of the
Statutory Construction Act. The Board further asserts that, even if Section 15
applies to the automatic suspensions imposed under Section 15.1(b), the Board
could still require those licensees to wait 10 years before the Board reissues their
licenses through the discretionary review process provided in Section 15. It
contends that treating licensees with suspended licenses for felony Drug Act
convictions the same as new applicants by imposing a 10-year period between
conviction and reissuance/grant of a professional nursing license comports with the
General Assembly’s intent to limit the Board’s discretion under these
circumstances.
11
We question the Board’s contention in this regard as it is apparent from our prior
discussion that Packer did find the relevant language ambiguous and, therefore, had to utilize the
rules of statutory construction to ascertain meaning of that language. Moreover, to the extent
that the Board maintains that the Supreme Court upheld Packer, we observe that the Supreme
Court did not “uphold” this Court’s decision; it denied the petition for allowance of appeal,
which has no precedential value. Com. v. Tilghman, 673 A.2d 898, 904 (Pa. 1996) (stating that
orders dismissing an appeal as improvidently granted have the same effect as an order denying a
petition for allowance of appeal and that such orders have no precedential value).
15
D. Analysis
Packer correctly found that these provisions of the Nursing Law are
ambiguous and, therefore, subject to principles of statutory construction in order to
ascertain the General Assembly’s intent.12 Ms. McGrath and Ms. Packer each
pleaded guilty to a single violation of Section 13(a)(12) of the Drug Act which is a
felony; therefore, Section 15.1(b) of the Nursing Law applies. Section 15.1(b)
states that, because of the conviction, her nursing license “shall automatically be
suspended.” 63 P.S. § 225.1(b) (emphasis added). Yet, Section 15.1(b) also
contains the following sentence: “Restoration of such license shall be made as
hereinafter provided in the case of revocation or suspension of such license.” Id.
(emphasis added). Moreover, Section 15 of the Nursing Law does distinguish
between suspended and revoked licenses. Section 15 provides that “[t]he 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.” 63 P.S. § 225 (emphasis added).
Section 15.2 applies by its terms to revoked licenses, prohibiting the Board from
reissuing a revoked license, and instead, providing that “[a]ny person whose
license has been revoked may reapply for a license, after a period of at least five
(5) years, but must meet all of the licensing qualifications of this act for the license
applied for . . . .” 63 P.S. § 225.2 (emphasis added). New applicants for a nursing
license fall within Section 6(c) of the Nursing Law, which requires a 10-year
12
We acknowledge both the Board’s and Ms. McGrath’s assertions that the statutory
provisions at issue are not ambiguous, although each believes the provisions mean something
totally different. Notwithstanding their assertions, we agree with Packer that an ambiguity exists
and that we must utilize the rules of statutory construction to ascertain what the General
Assembly’s intent was when it enacted these provisions. 1 Pa. C.S. § 1921(c); Zane, 836 A.2d at
31.
16
waiting period between a conviction under the Drug Act and the issuance of a
nursing license. 63 P.S. § 216(c).
Initially, the interpretation may seem clear. Under Section 15.1(b), Ms.
McGrath, like Ms. Packer, had her nursing license automatically suspended as a
result of her conviction. Under Section 15, the Board may reissue any suspended
license, which, as Ms. McGrath argues, gives the Board discretion to make a
determination on a case-by-case basis. In fact, this rather simple interpretation is
the interpretation the Board previously used until directed to do otherwise by “the
Bureau or the Department [in an] unidentified directive in 2013.” Packer, 99 A.3d
at 970-71.
However, Section 15.1(b) also states that “[r]estoration of such license shall
be made as hereinafter provided in the case of revocation or suspension of such
license.” 63 P.S. § 225.1(b) (emphasis added). The phrases “as hereinafter
provided” and “revocation or suspension” create an ambiguity because the section
after 15.1 is 15.2, which applies to revocations but does not even mention
suspensions. While Ms. McGrath argues that the Board may reissue the suspended
license under Section 15, the Board and this Court’s opinion in Packer found that
Section 15.2 applies, and so the suspended license has to be treated as if it had
been revoked for restoration purposes. Under that interpretation, Ms. McGrath,
like Ms. Packer, has to reapply for her license as if she is a new applicant. The
result is that, instead of the Board having discretion to reissue their suspended
nursing licenses when appropriate, their licenses have been revoked for a minimum
of 10 years.
But Section 15.1(b) of the Nursing Law provides for the automatic
suspension, not revocation, of a license for a conviction under the Drug Act. The
17
Board could have sought revocation of Ms. McGrath’s license based upon her
conviction under Section 14 of the Nursing Law, 63 P.S. § 224 (providing bases
for discipline, including revocation of a license, for being convicted for crimes of
moral turpitude or the possession or use of controlled substances for other than
medical purposes), but it did not. Had the Board successfully revoked her license,
the revoked license plainly then would have been subject to the requirements of
Section 15.2. Reissuance of suspended licenses is addressed only in Section 15,
which provides the Board with broad discretion for reissuing such licenses.
Section 15 expressly states that revocations are governed by Section 15.2, which
provides either a 5-year or 10-year revocation period when read in conjunction
with Section 6(c)(1). 63 P.S. §§ 216(c)(1), 225, 225.2. Packer’s conclusion that
Section 15 could not apply because, inter alia, it preceded Section 15.1(b)
disregards the fact that Section 15.2 expressly refers only to license revocations,
and does not address suspensions. Packer focused on the word “hereinafter,” in
Section 15.1(b), and in doing so, expanded the application of Section 15.2, a
provision that applies by its terms only to revoked licenses, to also include
suspended licenses. This addition expanded Ms. McGrath’s automatic suspension
into a mandatory 10-year revocation and eliminated the Board’s discretionary
review expressly permitted in Section 15, which seems contrary to the rule of
statutory construction that preclude courts from adding language to statutes.
Summit Sch., Inc., 108 A.3d at 199.
However, construing this language as applying Section 15, rather than
Section 15.2, as the standard for reissuing licenses suspended under Section
15.1(b) also is problematic. Thus, both interpretations cause difficulty: one
requiring the Court to add language to Section 15.2 (expanding its application to
18
include suspended licenses) as discussed above, the other omitting language from
Section 15.1(b) (not giving effect to the word “hereinafter”) as referenced in
Packer. Neither interpretation completely comports with the principles of statutory
construction. See 1 Pa. C.S. § 1921(a) (requiring that we attempt to give effect to
all the provisions of a statute); Summit Sch., Inc., 108 A.3d at 199 (stating that
courts do not “have authority to add or insert language into a statute” and should
not, through interpretation, add a requirement that the General Assembly did not
include). Moreover, although licenses are automatically suspended pursuant to
Section 15.1(b) thereby reflecting the General Assembly recognition that Drug Act
convictions are unquestionably serious matters, the General Assembly did not
impose the automatic revocation of such licenses, which would have expressly
limited, under the plain language of both Sections 15 and 15.2 of the Nursing Law,
the Board’s review of the restoration of those licenses to the terms set forth Section
15.2. Although Packer interpreted those provisions as meaning that the General
Assembly “more likely” wanted to remove all discretion from the Board to review
these suspensions for 10 years, Packer, 99 A.3d at 972, had the General Assembly
intended to do so, it would have required the automatic revocation of those
licenses, not suspension. Accordingly, despite applying the general rules of
statutory construction, this statutory language remains ambiguous, and it is,
therefore, necessary to apply the principles set forth in Section 1928(b) of the
Statutory Construction Act and the rule of lenity.
Statutory provisions that impose punishment, such as the suspension or
revocation of a professional license, for specified acts are considered penal in
nature. Pa. State Real Estate Comm’n, 165 A.2d at 80. As previously described,
the rule of lenity provides that the statute should provide a clear and unequivocal
19
warning in language that people generally would understand, as to what actions
would expose them to liability for penalties and what the penalties would be.
Additionally, ambiguities should be strictly construed against the government. The
language of Section 15.2 does not comply with the rule of lenity as it does not
provide “a clear and unequivocal warning . . . that people generally would
understand” that the reissuance of a nursing license suspended under Section
15.1(b) would be governed by the more restrictive requirements of Section 15.2,
which applies to revoked licenses, rather than by Section 15, which expressly
addresses the reissuance of suspended licenses. Richards, 20 A.3d at 600 (internal
quotation omitted). This is particularly troubling where the Board changed its
long-standing interpretation of those provisions without providing any formal or
informal warning, via regulation or policy guideline, of that change to the licensees
over whom the Board exercises authority. Moreover, the change in interpretation
was not premised on the Board’s own review of the language of the Nursing Law,
but on an unidentified Department or Bureau directive that, regardless of the actual
language within the professional licensing statute at issue, all professional
licensing boards that license healthcare providers were to impose a mandatory 10-
year license suspension based on a felony conviction under the Drug Act.13 Packer,
99 A.3d at 970 n.10. As these provisions are ambiguous and do not provide “a
13
We note Ms. McGrath’s argument that the change in interpretation requiring a 10-year
suspension in all circumstances under Sections 15.1(b) and 15.2 was really an improperly
promulgated regulation as it does not leave the Board with any discretion in these matters. See
Transp. Services, Inc. v. Underground Storage Tank Indemnification Bd., 67 A.3d 142, 153-55
& n.18 (Pa. Cmwlth. 2013) (describing the difference between a statement of policy and
regulation, noting that a regulation is a pronouncement that leaves an agency with no discretion
to deviate therefrom and that a statement of policy allows discretion, setting forth the
requirements for promulgating a valid regulation, and indicating that the failure to properly
promulgate a regulation renders the regulation a nullity).
20
clear and unequivocal warning,” they “should [have been] . . . construed against
the government . . . [and] in favor of the [licensee].” Richards, 20 A.3d at 600
(internal quotation omitted). To hold otherwise would violate the “fundamental
principle of fairness that gives validity to our laws.” Sondergaard, 65 A.3d at 997.
Thus, the Board shall not apply Section 15.2 to Ms. McGrath’s suspension
pursuant to Packer to mandate a minimum 10-year period for that suspension.
Additionally, the Board must consider any subsequent request for reissuance of
that license under the discretionary review of Section 15. There is no reason to
believe that the Board, in exercising its discretion under Section 15, could not only
protect the citizens of the Commonwealth, but also recognize when licensees may
be rehabilitated and so able to continue working in their chosen profession without
harm to the public.
Because we conclude that, even after applying the general rules of statutory
construction, the language in question remains ambiguous, the Board’s arguments
that we do not need to apply Section 1928(b) and the rule of lenity are
unpersuasive. Moreover, in several of the opinions the Board cites, the courts held
that the plain language of the statute reflected the General Assembly’s intent and,
thus, did not apply any principles of statutory construction. Whalen, 32 A.3d at
680-84 (holding that the plain language of the statutory language associated with
the ignition interlock requirements set forth in Section 3805 of the Vehicle Code,
75 Pa. C.S. § 3805, mandated such a device for an individual who accepts
Accelerated Rehabilitative Disposition for Driving Under the Influence (DUI) after
a prior offense because that acceptance is an acknowledgement that the individual
violated Section 3802 of the Vehicle Code, 75 Pa. C.S. § 3802 (prohibiting DUI),
all that is required under the plain language of Section 3805 of the Vehicle Code,
21
75 Pa. C.S. § 3805); Harmar, 83 A.3d at 299-300 (holding that the phrase “undue
risk to public safety” found in Section 6138(c) of the Prisons and Parole Code, 61
Pa. C.S. § 6138(c), was not ambiguous and, thus, there was no need to resort to the
principles of statutory construction or the rule of lenity); Sondergaard, 65 A.3d at
998-99 (not applying the rule of lenity because the statutory language regarding the
lifetime revocation of commercial driver’s license for multiple convictions of, inter
alia, DUI as set forth in Section 1611 of the Vehicle Code, 75 Pa. C.S. § 1611, was
not ambiguous). In fact, some of the cases cited by the Board contain no
discussion or even mention of Section 1928(b)(1) of the Statutory Construction Act
or the rule of lenity. See Whalen, 32 A.3d 677 (no reference to the rule of lenity or
Section 1928(b)(1) of the Statutory Construction Act); Anderson, 472 A.2d at
1170-71 (applying the general rules of statutory construction to conclude that
convicted parole violators forfeit all of their time at liberty on parole even if they
were previously recommitted as technical parole violators and subsequently
reparoled because to do otherwise would render an absurd result).14 Accordingly,
those decisions do not require a different result.
14
One unreported opinion did not apply the rule of lenity because the statute in question
did not define the elements necessary for the individual to be subject to punishment. Selvey v.
Pa. Bd. of Prob. and Parole (Pa. Cmwlth., No. 2367 C.D. 2007, filed July 24, 2008), slip op. at 7
n.4 (holding that Section 21.1(a) of the Act commonly known as the Parole Act, Act of August 6,
1941, added by Section 5 of the Act of August 24, 1951, P.L. 1401, as amended, formerly, 61
P.S. § 331.21a(a), repealed by the Act of August 11, 2009, P.L. 147, (providing that a convicted
parole violator forfeits all the time spent at liberty on parole) (similar language can be found at
Section 6138 of the Prisons and Parole Code, 61 Pa. C.S. 6138(a)(2)) was not subject to the rule
of lenity because that section did not define elements of a crime, but defines the ramifications
when an individual who was on parole from a prior crime is convicted of committing a new
crime).
22
III. Stare Decisis
We recognize that only two years have passed between our decision in
Packer, and our current holding in this matter that Packer is overruled. Further, we
acknowledge the importance of certainty in and predictability of the law provided
by the doctrine of stare decisis. However, as our Supreme Court has explained,
Chief Justice Cardozo, in his treatise The Growth of the Law, admonished that:
We tend sometimes, in determining the growth of a
principle or a precedent, to treat it as if it represented the
outcome of a quest for certainty. That is to mistake its
origin. Only in the rarest instances, if ever, was certainty
either possible or expected. The principle or the
precedent was the outcome of a quest for probabilities.
Principles and precedents, thus generated, carry
throughout their lives the birthmarks of their origin.
They are in truth provisional hypotheses, born in doubt
and travail, expressing the adjustment which commended
itself at the moment between competing possibilities.
Ayala v. Phila. Bd. of Pub. Ed., 305 A.2d 877, 886 (Pa. 1973) (quoting Benjamin
N. Cardozo, The Growth of the Law 69-70 (1924) (footnote omitted)), superseded
by statute on other grounds as recognized in, Dorsey v. Redman, 96 A.3d 332, 340
(Pa. 2014) (noting that after the Supreme Court abolished common law sovereign
and governmental immunity, the General Assembly enacted legislation restoring
that immunity). Further, our Supreme Court has cautioned:
While it is true that great consideration should always be accorded
precedent, especially one of long standing and general acceptance, it
doesn’t necessarily follow that a rule merely established by precedent
is infallible. Moreover, the courts should not perpetrate error solely
for the reason that a previous decision, although erroneous, has been
rendered on a given question. This is particularly true where . . .
great injustice or injury will result by following the previous
erroneous decision. If it is wrong it should not be continued. Judicial
honesty dictates corrective action.
23
Olin Mathieson Chem. Corp. v. White Cross Stores, Inc., No. 6, 199 A.2d 266, 268
(Pa. 1964) (emphasis added). “The controlling principle [of] . . . the doctrine of
[s]tare decisis is [that it is] not a vehicle for perpetuating error, but rather a legal
concept which responds to the demands of justice.” Ayala, 305 A.2d at 888. Thus,
“the Court’s general faithfulness to precedent is not sufficient justification to
buttress judicial decisions proven wrong in principle . . . .” Tincher v. Omega
Flex, Inc., 104 A.3d 328, 336 (Pa. 2014).
Our reversal of Packer is not a “[l]ight and casual treatment of the doctrine
of stare decisis,” which we agree should be avoided, but a question of what justice
demands and reason dictates. Flagiello v. Pa. Hosp., 208 A.2d 193, 207 (Pa.
1965). The impact of Packer on the individuals affected is to preclude them from
engaging in their profession for 10 years before the Board has the authority to
even review their requests to reissue their suspended licenses. It prevents the
Board from exercising its discretion, as it does in all other suspensions, to
determine whether the Commonwealth’s citizens will be harmed by the
reinstatement of a particular nurse. Such a result prevents individuals from earning
their livelihood during that time period, which is particularly important because,
based on the ambiguousness of Section 15.1(b) and 15.2 of the Nursing Law,
licensed individuals have no guidance regarding what actions result in what
punishment under the Nursing Law. We believe that our continuing reliance on
Packer, therefore, creates a “great injustice or injury” to those individuals.
Flagiello, 208 A.2d at 207. Having determined that Packer was wrong, “it should
not be continued[, as] [j]udicial honesty dictates corrective action.” Olin
Mathieson Chem. Corp., 199 A.2d at 268 (emphasis added).
24
IV. Conclusion
In sum, we overrule Packer, and we reverse the Board’s Order affirming Ms.
McGrath’s suspension to the extent that it holds that her suspension is for a
mandatory period of not less than 10 years from the date of her conviction. We
affirm the Order in all other respects. In accordance with this opinion, any
reissuance request from a suspension based on Section 15.1(b) shall be reviewed
under Section 15 of the Nursing Law.
________________________________
RENÉE COHN JUBELIRER, Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shannon McGrath, :
Petitioner :
:
v. : No. 1001 C.D. 2015
:
Bureau of Professional and :
Occupational Affairs, State Board of :
Nursing, :
Respondent :
ORDER
NOW, August 24, 2016, the Order of the Bureau of Professional and
Occupational Affairs, State Board of Nursing (Board), entered in the above-
captioned matter, is AFFIRMED IN PART and REVERSED IN PART. The
Order is AFFIRMED to the extent that it imposes an automatic suspension of
Shannon McGrath’s professional nursing license, but REVERSED to the extent
that it applies Section 15.2 of The Professional Nursing Law15 (Nursing Law), 63
P.S. § 225.2, to that automatic suspension. In accordance with the foregoing
opinion, any reissuance request from a suspension based on Section 15.1(b) of the
Nursing Law, 63 P.S. § 225.1(b), shall be reviewed under Section 15 of the
Nursing Law, 63 P.S. § 225.
________________________________
RENÉE COHN JUBELIRER, Judge
15
Act of May 22, 1951, P.L. 317, as amended, added by Section 13 of the Act of
December 20, 1985, P.L. 409, 63 P.S. § 225.2.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shannon McGrath, :
Petitioner :
:
v. : No. 1001 C.D. 2015
: Submitted: May 11, 2016
Bureau of Professional and :
Occupational Affairs, State Board of :
Nursing, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
DISSENTING OPINION
BY JUDGE BROBSON FILED: August 24, 2016
In this appeal, the Court is confronting the very same competing
constructions of Sections 15.1(b) and 15.2 of The Professional Nursing Law
(Nursing Law)1 that the Court confronted in Packer v. Bureau of Professional and
Occupational Affairs, Department of State, State Board of Nursing, 99 A.3d 965
(Pa. Cmwlth. 2014). It was a close case two years ago, and it is a close case today.
Faced with an ambiguous statute, this Court chose one of two paths in Packer.
Now, two years later, the Court has chosen the other.
1
Act of May 22, 1951, P.L. 317, added by the Act of December 20, 1985, P.L. 409, as
amended, 63 P.S. §§ 225.1(b), 225.2.
I agree with the majority that the doctrine of stare decisis is not so
rigid a rule that it requires this Court to sacrifice justice on the altar of consistency.
Nonetheless, the majority’s justification for abandoning Packer is the impact
Packer, if it remains law, has on nurses who find themselves in similar
circumstances to Angela Maria Packer and Shannon McGrath. This Court was
well aware of what our decision in Packer would mean to these individuals in
terms of restoration of their licenses following a conviction for violating The
Controlled Substance, Drug, Device and Cosmetic Act.2 Nonetheless, “[o]ur
function is to decide cases as they come before us on the pertinent facts and law.”
Flagiello v. Pa. Hosp., 208 A.2d 193, 202 (Pa. 1965). That is what we did in
Packer. Notwithstanding any perceived harshness flowing from our decision in
Packer, the decision was not so clearly erroneous to justify unsettling an area of
law that this Court settled only two years ago. See Lewis v. Workers’ Comp.
Appeal Bd. (Giles & Ransome, Inc.), 919 A.2d 922, 928 (Pa. 2007) (“Although this
Court adheres to the principle of stare decisis, it will not be bound by a decision
that in itself is clearly contrary to the body of the law.” (emphasis added)).
I, therefore, respectfully dissent.
P. KEVIN BROBSON, Judge
Judge Simpson joins in this dissenting opinion.
2
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 to -144.
PKB-2