holding that a statute involving the investigation and suspension of professional licenses is penal in nature
How later courts described this case
- holding that a statute involving the investigation and suspension of professional licenses is penal in nature
- “The Board has no discretion to impose less 13 than a [10]-year suspension for a felony conviction [under the Act]. . . .”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Omar Almusa, M.D., :
:
Petitioner :
:
v. : No. 342 C.D. 2022
: Argued: April 5, 2023
State Board of Medicine, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION
BY JUDGE WOJCIK FILED: July 13, 2023
Dr. Omar Almusa (Licensee) petitions this court for review of the
order of the State Board of Medicine (Board) that denied Licensee’s petition for
reinstatement of his medical license. At issue is whether and how Act 531 should
apply to Licensee’s suspension and reinstatement. Licensee argues that the Board
1
The Act of July 1, 2020, P.L. 575, No. 53, commonly known as Act 53, amended Section
9124 of the Criminal History Record Information Act, 18 Pa. C.S. §9124, and enacted Chapter 31
of the law governing the Bureau of Professional and Occupational Affairs, licensing boards, and
licensing commissions, 63 Pa. C.S. §§3101-3118.
committed an error of law in applying Section 3113(f) of Act 53 2 to deny his
reinstatement because the new Act 53 provisions prospectively remove the 10-year
waiting period for reinstatement in Section 43(b) of the Medical Practice Act of 1985
(Act) for felony drug convictions that are not drug trafficking convictions.3 The
2
Section 3113(f) of Act 53, 63 Pa. C.S. §3113(f), entitled “Drug Trafficking,” provides as
follows:
Notwithstanding any provision of law to the contrary, the provisions
of the respective practice acts relating to felony drug convictions
under the [A]ct of April 14, 1972 (P.L. 233, No. 64), [as amended,
35 P.S. §§780-101 - 780-144,] [] known as The Controlled
Substance, Drug, Device and Cosmetic Act [(Drug Act)], or a
conviction under the laws of another jurisdiction which, if
committed in this Commonwealth, would be a felony under the
[Drug Act], shall only apply to an individual who has been convicted
of a drug trafficking offense. The licensing board or licensing
commission may show, by a preponderance of the evidence, that the
amount or weight of the controlled substance involved in a
conviction meets the requirements for a drug trafficking offense.
Importantly, Section 3113 of Act 53, 63 Pa. C.S. §3113, became effective 180 days after
enactment, on December 28, 2020, and provides that “the addition of this section by that Act shall
apply to official acts and matters, including disciplinary matters, related to the issuance of licenses,
certificates, registrations or permits by licensing boards or licensing commissions beginning on or
after December 28, 2020.”
3
Act of December 20, 1985, P.L. 457, No. 112, as amended, 63 P.S. §§422.1-422.53.
Section 43(b) of the Act, 63 P.S. §422.43(b), entitled “Reinstatement after felony conviction,”
provides as follows:
Any person whose license, certificate or registration has been
suspended or revoked because of a felony conviction under the
[Drug Act], [] or similar law of another jurisdiction may apply for
reinstatement after a period of at least ten years has elapsed from the
date of conviction. The board may reinstate the license if the board
is satisfied that the person has made significant progress in personal
rehabilitation since the conviction such that his reinstatement should
not be expected to create a substantial risk of harm to the health and
(Footnote continued on next page…)
2
Board responds that it committed no error when it declined to retroactively apply
Section 3113(f) of Act 53 to Licensee’s suspension, when his conviction and
suspension occurred before the effective date of that Section. After careful review,
we affirm.
The relevant background facts found by the Board and from the record
are as follows. Licensee was licensed to practice medicine as a radiologist since
2003. Reproduced Record (R.R.) at 34a. On June 27, 2018, Licensee pleaded guilty
to one count of distribution of controlled substances, in violation of federal drug
laws, as well as conspiracy and fraud, when he unlawfully distributed Vicodin to
persons who were not patients and took the drugs himself. R.R. at 34a-36a. The
parties agree, and the Board affirmed, that Licensee’s federal drug conviction
qualifies as a felony drug conviction under Pennsylvania’s Drug Act. Id. at 36a.
The parties also agreed, and the Board affirmed, that Licensee’s conviction does not
constitute a drug trafficking offense as that term is defined in Section 3113(i) of Act
534 and referenced in Section 3113(f) of Act 53. Id. at 9a.
On July 25, 2019,5 the Board issued a Notice and Order of Automatic
Suspension to Licensee, based on his conviction of a felony drug offense, and
suspended his license effective August 15, 2019, “for a period of at least 10 years
safety of his patients or the public or a substantial risk of further
criminal violations and if the person meets all other licensing
qualifications of this act, including the examination requirement.
4
Section 3113(i) of Act 53, 63 P.S. §3113(i), relevant here, defines a drug trafficking
offense as illegal distribution of a controlled substance if the weight of the controlled substance,
in this case, Vicodin, is at least 100 grams. See Sections 4 and 13 of the Drug Act, 35 P.S. §§780-
104 and 780-113. Licensee was convicted for illegally distributing less than 100 grams of Vicodin.
5
The Notice and Order of Automatic Suspension has a mailing date of July 25, 2019. R.R.
at 39a. Although, in some places, the Board refers to the Notice dated July 24, 2019, the correct
date is July 25, 2019, and we will refer to the Notice by that date.
3
from the date of conviction under authority of sections 40(b)6 and 43(b) of the Act.”
R.R. at 37a. The Board advised Licensee that his response and any hearing “shall
be limited to” whether Licensee was convicted of the offense and whether the
offense qualifies as a felony drug conviction under the Drug Act. Id. at 38a.
After receiving no response or request for a hearing from Licensee, on
November 26, 2019, the Board issued a Final Order of Automatic Suspension. R.R.
at 29a-32a. In this order, the Board confirmed that Licensee had proper notice of
the July 25, 2019 Notice, Licensee failed to respond or request a hearing on his
automatic suspension, and any such hearing would be limited to the two issues
regarding Licensee’s conviction. Id. Licensee does not dispute his conviction or
that it qualifies as a felony drug conviction under the Drug Act. Licensee does not
dispute, and the Board confirmed, that Licensee did not respond to the Board’s July
25, 2019 Notice, and that he did not appeal the Board’s November 26, 2019 Final
Order. Id. at 8a. In addition, Licensee does not dispute that his automatic suspension
was lawful when entered on November 26, 2019. Id.
On April 8, 2021, after Section 3113(f) of Act 53 became effective on
December 28, 2020, Licensee filed a petition for reinstatement with the Board. R.R.
at 8a. After considering arguments from the parties and without taking any
additional evidence, the Board issued a Final Memorandum Order dated March 17,
2022. Id. at 8a-12a. The Board granted Licensee’s motion to determine that his
conviction does not meet the definition of drug trafficking in Act 53, but it denied
6
Section 40(b) of the Act, 63 P.S. §422.40(b), provides, in relevant part, that the Board
shall automatically suspend a licensee’s license upon any felony conviction under the Drug Act,
not limited to drug trafficking as defined in Section 3113(i) of Act 53. Section 40(b) of the Act
also provides that “[r]estoration of such license or certificate shall be made as hereinafter provided
in the case of revocation or suspension of such license or certificate.” Section 43(b) of the Act,
entitled “Reinstatement after felony conviction,” is one such section of the Act governing
restoration of medical licenses, as referenced in Section 40(b) of the Act.
4
Licensee’s reinstatement based on its conclusion that Section 3113(f) of Act 53 does
not apply retroactively to permit Licensee’s reinstatement, when his license was
suspended a year before the effective date of Section 3113(f).
Although Licensee agreed that his suspension was lawful when
imposed, the Board viewed Licensee’s request as seeking “termination of the
automatic suspension” imposed on November 26, 2019, as well as seeking
reinstatement of his license. R.R. at 8a. The Board summarized the relevant facts
and recognized that the narrow issue presented focused on the effect of Section
3113(f) of Act 53 on Licensee’s suspension and reinstatement. Id. at 9a. The Board
concluded that it “is precluded by Pennsylvania statute to construe [S]ection
3113[(f)] of Act 53 as retroactive unless such retroactive effect is clearly and
manifestly intended by the General Assembly.” Id. The Board concluded that
Section 3113(f) of Act 53 contains no such manifestation of retroactivity. Id. The
Board concluded that “prospectivity is the default rule” unless the General Assembly
has clearly expressed its intent to disrupt settled expectations, citing in support
Landgraf v. USI Film Products, 511 U.S. 244 (1994). R.R. at 9a. The Board rejected
Licensee’s argument that Section 3113(f) of Act 53 should apply to his
reinstatement, as a distinct and separate matter from his suspension, reasoning that
this argument would require the Board to assume the General Assembly chose a
“‘surprisingly indirect route to convey an important and easily expressed message,’”
again citing Landgraf. R.R. at 9a. The Board concluded that
[f]urthermore, retroactive application would have the
practical effect of reversing or terminating all automatic
suspensions that resulted from a conviction other than
drug trafficking defined by Act 53. It is nearly beyond
comprehension that the legislature would not clearly
provide for the reversal or termination of decades of
lawfully entered automatic suspensions entered prior to
5
Act 53. Therefore, the Board, without clear legislative
direction authorizing it to vacate [Licensee’s] automatic
suspension, declines to take such action.
Id. at 10a.
The Board addressed an order of the State Board of Osteopathic
Medicine for a different physician, that Licensee attached to his petition for
reinstatement, and rejected the implicit suggestion that it should be relied upon for
precedential or persuasive value in Licensee’s case. R.R. at 10a. The Board rejected
this implication because the laws governing the Board and the State Board of
Osteopathic Medicine are dissimilar in several ways, including the automatic
suspension provisions.7 Id.
The Board then discussed two unreported decisions of our Court that it
believed “firmly address the automatic suspension provisions of the respective
practice acts.” R.R. at 10a. In Khan v. Bureau of Professional and Occupational
Affairs, State Board of Medicine (Pa. Cmwlth., No. 1047 C.D. 2016, filed November
21, 2017),8 the Court considered a licensee’s suspension for a felony drug conviction
under Section 40(b) of the Act, the same section that governs Licensee’s suspension
here. Khan, slip op. at 2. The licensee in Khan argued that the Board erred in
denying him a hearing before suspending his license, and erred when it concluded it
7
The Final Order involving Thomas J. Whalen, D.O., dated February 9, 2021, may be
found in the Reproduced Record at 24a-28a. In that order, the board denied in part the licensee’s
petition to vacate his suspension, but it reinstated his license to expired status as of December 27,
2020, the effective date of Section 3113(f) of Act 53. In that case, the licensee was convicted of
felony drug violations, but not drug trafficking violations. His suspension was in progress, but not
completed, when Section 3113(f) of Act 53 became effective. Therefore, the board terminated the
licensee’s suspension and reinstated his license, based on the application of Section 3113(f) of Act
53 to licensee’s suspension.
8
See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”).
6
lacked discretion to impose a suspension of less than 10 years. Id., slip op. at 2-3.
The Court affirmed the Board and denied the licensee’s request for a hearing,
because a hearing is not required when no evidentiary facts are at issue, citing Denier
v. State Board of Medicine, Bureau of Professional and Occupational Affairs, 683
A.2d 949 (Pa. Cmwlth. 1996). Khan, slip op. at 2. The Court also denied the
licensee’s request that the Board hold a hearing to exercise its discretion over the
length of his suspension, relying on the plain language of Section 43(b) of the Act
that prohibits a licensee from seeking reinstatement until 10 years have elapsed from
his conviction. Khan, slip op. at 2-3. The Court concluded that, under the facts
presented and the plain language of Section 43(b) of the Act, “[t]he Board lacks
discretion to impose a suspension for a period of less than [10] years.” Khan, slip
op. at 3.
The Board then contrasted the result in Acri v. Bureau of Professional
and Occupational Affairs, State Board of Osteopathic Medicine (Pa. Cmwlth., No.
856 C.D. 2017, filed January 5, 2018). In Acri, the State Board of Osteopathic
Medicine suspended the license of the licensee who was convicted of felony drug
charges under Section 14(b) the Osteopathic Medical Practice Act (Osteopathic
Act), 63 P.S. §271.14(b).9 Acri, slip op. at 1. Although 1 section of the Osteopathic
Act required a licensee to wait 10 years for reinstatement, another section of the
Osteopathic Act suggested that a licensee must wait only 5 years for reinstatement,
and another section gave no time limit for reissuing a suspended license. Id. The
Court rejected the licensee’s argument that he was entitled to a hearing before his
suspension was imposed because no facts about his conviction were at issue. Id.
The Court concluded, however, that the relevant sections of the Osteopathic Act
9
Act of October 5, 1978, P.L. 1109, as amended.
7
governing the length of licensee’s suspension were “circular and confusing,” and
modified the board’s order “insofar as it imposed a mandatory [5-] or [10-]year
suspension” on the licensee. Acri, slip op. at 4. The Court directed that “any
reissuance request from a suspension” for felony drug convictions “shall be
processed and reviewed” under the section of the Osteopathic Act giving the board
discretion over the duration of a licensee’s suspension. Id. Here, the Board
concluded that, unlike the provision in the Osteopathic Act giving the board
discretion over the duration of a licensee’s suspension in Acri, the Act provided no
such discretion to the Board, and that a 10-year waiting period was required by the
mandatory language in Section 43(b) of the Act. Licensee then petitioned the Court
for review.10
The following general principles are relevant to our analysis.
Regarding Act 53, the plain language of Section 3113(f) of Act 53, standing alone,
and when reviewed in the context of the entire statute, governs our interpretation.11
10
Our scope of review of the Board’s order is limited to determining whether constitutional
rights were violated, whether an error of law was committed, or whether necessary findings of fact
are supported by substantial evidence. Barran v. State Board of Medicine, 670 A.2d 765, 767 n.3
(Pa. Cmwlth. 1996). Because the issue presented here involves the interpretation of statutory
provisions and presents questions of law, our scope of review is plenary, and the standard of review
is de novo. In re Vencil, 152 A.3d 235, 241 (Pa. 2017).
11
When presented with issues of statutory interpretation, this Court’s
standard of review is de novo and our scope of review is plenary.
Whitmoyer v. Workers’ Compensation Appeal Board (Mountain
Country Meats), 186 A.3d 947, 954 (Pa. 2018). We are mindful, as
always, that the object of statutory interpretation is to ascertain the
intent of the General Assembly, the best indicator of which is the
plain language of the statute itself. 1 Pa. C.S. §1921(a)(b);
Department of Labor & Industry v. [Workers’ Compensation Appeal
Board] (Lin & [Eastern] Taste), 187 A.3d 914, 922 (Pa. 2018).
Where statutory language is clear and unambiguous, this Court must
give effect to the words of the statute. Crown Castle NG [East] LLC
(Footnote continued on next page…)
8
As to the issue of retroactivity, Section 1926 of the Statutory Construction Act of
1972, 1 Pa. C.S. §1926, entitled “Presumption against retroactive effect,” provides
that “[n]o statute shall be constructed to be retroactive unless clearly and manifestly
so intended by the General Assembly.” Our Court has explained that a law is given
“retroactive effect when it is used to impose new legal burdens on a past transaction
or occurrence.” Pierson v. Workers’ Compensation Appeal Board (Consol
Pennsylvania Coal Company LLC), 252 A.3d 1169, 1179 (Pa. Cmwlth.), appeal
denied, 261 A.3d 378 (Pa. 2021).
Licensee first argues that the automatic suspension the Board imposed
under Section 40(b) of the Act should be viewed as distinct from the 10-year waiting
period for reinstatement under Section 43(b) of the Act. Licensee acknowledges and
agrees that his automatic suspension for a felony drug conviction under Section
40(b) of the Act was proper when it was imposed, because the Act did not
differentiate between felony drug convictions and felony drug trafficking
convictions at that time. Licensee argues that he is not seeking to vacate or undo his
lawfully imposed suspension, but is focused only on when he may seek
reinstatement. Licensee argues that because Section 40(b) imposes no minimum or
maximum length on an automatic suspension, the length of an automatic suspension
is determined by when a licensee seeks reinstatement under Section 43(b) of the Act,
which he argues is a separate, official Board action. Licensee contends that the
v. Pennsylvania Public Utility Commission, 234 A.3d 665, 674 (Pa.
2020). When interpreting a statute, courts may not look beyond the
plain meaning of a statute under the guise of pursing its spirit. Id.;
see also Warrantech Consumer Products Services, Inc. v. Reliance
Insurance Company in Liquidation, 96 A.3d 346, 354 (Pa. 2014).
City of Johnstown v. Workers’ Compensation Appeal Board (Sevanick), 255 A.3d 214, 221 (Pa.
2021).
9
duration language in the Board’s orders merely provided notice that he could not
apply for reinstatement for 10 years, but did not impose a 10-year suspension.
Because Licensee filed his petition for reinstatement after the effective date of
Section 3113(f) of Act 53, he argues that the plain language of that section should
be applied to the official Board action denying his reinstatement.
Licensee further argues that the Board erred by denying retroactive
application of Section 3113(f) of Act 53 to his suspension, when he is not seeking
retroactive application, but, rather, prospective application of that section to his
reinstatement. Licensee argues that Section 3113 of Act 53, by its stated terms,
applies to “official acts and matters, including disciplinary matters, related to the
issuance of licenses” by the Board, “beginning on or after December 28, 2020.”
Licensee argues that the Board’s denial of his reinstatement was an official act,
relating to the issuance of his license, that occurred after Section 3113(f) of Act 53
became effective, and should be interpreted to eliminate the 10-year waiting period
for a felony drug conviction that is not a drug trafficking conviction. Licensee argues
that the intent of the Legislature when it enacted Section 3113(f) of Act 53 was to
treat felony drug convictions that are not drug trafficking convictions less harshly
than in the past. Licensee argues that the Board erred by failing to grant him a
hearing on his reinstatement so that Section 3113(f) of Act 53 could be properly
applied.
The Board first responds that Licensee should be precluded from now
challenging his 2019 suspension orders because he waited too long. The Board
contends that its July 25, 2019 Notice and Order referenced both Section 40(b) of
the Act imposing the automatic suspension, and Section 43(b) of the Act imposing
the 10-year duration. The Board argues that Licensee did not respond or seek a
10
hearing after receiving the Notice, and he should not be permitted to do so several
years later. The Board also argues that because Licensee failed to appeal the
November 26, 2019 Final Order, which also referenced Sections 40(b) and 43(b) of
the Act, Licensee should be precluded from challenging it now. Licensee does not
dispute that he did not seek a hearing or appeal the Board’s automatic suspension at
the time, but he argues that the Board specifically limited any hearing to the facts of
his conviction, which he did not dispute.
The Board further responds that, if the issue is not precluded, Section
3113(f) of Act 53 should not be applied retroactively to Licensee’s conviction or
suspension, which undoubtedly occurred before the effective date of that section.
The Board responds that it had no discretion to impose less than a 10-year
suspension, citing Khan (Pa. Cmwlth., No. 1047 C.D. 2016, filed November 21,
2017), and Denier, 683 A.2d 949. The Board responds that Section 3113 of Act 53
lacks clear manifestation to be applied retroactively, and absent such direction it may
not be used to challenge the duration of Licensee’s suspension. The Board further
responds that retroactive application of automatic suspension provisions was
addressed by this Court in the 1980s when the Act and the Pharmacy Act 12 were
amended to impose suspensions based on drug convictions, a converse scenario to
the enactment of Act 53.
In Morris v. Department of State, Bureau of Professional and
Occupational Affairs, State Board of Pharmacy, 537 A.2d 93 (Pa. Cmwlth. 1988),
the Court held that the amendments to the Pharmacy Act, which required a 10-year
suspension for a felony drug conviction, were not improperly retroactively applied
to the licensee, when the convictions occurred after the Pharmacy Act was amended,
12
Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. §§390-1 - 390-13.
11
even though the underlying offenses occurred before the Pharmacy Act was
amended. Similarly, in Galena v. Department of State Professional and
Occupational Affairs, 551 A.2d 676 (Pa. Cmwlth. 1988), the Court held that the
Act’s recent amendments requiring an automatic suspension for felony drug
convictions were not improperly retroactively applied to a licensee, when his
convictions occurred after the Act was amended. The Board argues that Morris and
Galena provide clear guidance that amendments to the Act should not be applied
retroactively to undo Licensee’s suspension, when his suspension was validly
imposed before Act 53 became effective.
First, although we acknowledge that Licensee failed to request a
hearing or appeal from the imposition of his suspension by the Board in 2019, he is
not precluded from seeking review of the Board’s denial of his reinstatement in
2022. The Board’s March 17, 2022 Final Memorandum Order is a final order from
which Licensee may appeal as of right under Pa. R.A.P. 341.
However, we reject Licensee’s contention that the imposition of his
suspension and the duration of his suspension are two distinct Board actions.
Although Section 40(b) of the Act does not contain a minimum or maximum
suspension for a licensee convicted of a felony drug crime, Section 43(b) of the Act
clearly does. The plain language of these related sections of the Act provide that
Licensee was subject to a 10-year suspension for his felony drug conviction, when
the Board imposed the suspension in 2019, before the enactment of Act 53. Licensee
does not dispute that his suspension was valid when imposed in 2019. The Board
twice informed Licensee that his license was suspended for at least 10 years under
Sections 40(b) and 43(b) of the Act. See R.R. at 30a-31a, 37a-38a. We may not
disregard the plain language of Sections 40(b) and 43(b) of the Act in an attempt to
12
pursue the spirit of Section 3113(f) of Act 53. Crown Castle NG East LLC, 234
A.3d at 674.
Further, our Court has determined that the Board lacks discretion to
impose a suspension other than a 10-year suspension under the Act, when a licensee
is convicted of a felony drug crime. In Galena, our Court considered the suspension
of a licensee convicted of a felony drug offense under the Act, and specifically
reviewed Sections 40(b) and 43(b) of the Act, as both sections related to his
suspension. Galena, 551 A.2d at 677 n.1. The Court first recited that Section 40(b)
of the Act provided for the automatic suspension of a licensee’s license for a felony
drug conviction, and then explained as follows.
It should be noted here that Section 43(b) of the [] Act, []
governing reinstatement, sets out the minimum term for
suspension and provides in applicable part:
Any person whose license, certificate or registration has
been suspended or revoked because of a felony conviction
under [the Drug Act], . . . may apply for reinstatement
after a period of at least ten years has elapsed from the date
of the conviction. (Footnote omitted.)
Id.
Our Court has reviewed Sections 40(b) and 43(b) of the Act regarding
suspensions, and determined that Section 43(b) “sets out the minimum term for
suspension.” Galena, 551 A.2d at 677 n.1. The enactment of Act 53 does not
change our interpretation of the relationship between Sections 40(b) and 43(b) of the
Act. We have repeatedly held that the Board “does not have the discretion under the
[] Act to suspend [a licensee’s] license for any period less than [10] years.” Id. at
678. See also Denier, 683 A.2d at 953 (“The Board has no discretion to impose less
13
than a [10]-year suspension for a felony conviction [under the Act]. . . .”); and Khan,
slip op. at 3 (“The statutory language of Section 43(b) of the [Act] is clear and free
from ambiguity. The Board lacks discretion to impose a suspension for a period of
less than [10] years.”). We agree with the Board that Acri (Pa. Cmwlth., No. 856
C.D. 2017, filed January 5, 2018), is distinguishable from this case, because the
length of the suspension imposed under the Osteopathic Act was ambiguous in Acri,
but the length of the suspension imposed under the Act here is not.
We further agree with the Board that Section 3113(f) of Act 53 may not
be applied retroactively to Licensee’s suspension, in the absence of the Legislature’s
expression of its clear and manifest intent to do so. Section 1926 of the Statutory
Construction Act of 1972, 1 Pa. C.S. §1926; see also Landgraf, 511 U.S. at 286.
Here, the Legislature expressed that Section 3113 of Act 53 was to apply
prospectively, not retroactively, when it provided that the addition of Section 3113
“shall apply to official acts and matters, including disciplinary matters, related to the
issuance of licenses, certificates, registrations or permits by licensing boards or
licensing commissions beginning on or after December 28, 2020.”
Based on the Legislature’s clear directive, we decline to apply Section
3113(f) of Act 53 to the imposition of Licensee’s suspension, when his suspension,
including the length of suspension, was imposed before Act 53 became effective.
“‘[A] statute does not operate retrospectively merely because some of the facts or
conditions upon which its application depends came into existence prior to its
enactment.’” Morris, 537 A.2d at 95 (quoting Gehris v. Department of
Transportation, [] 369 A.2d 1271, 1273 ([Pa.] 1977)). Because the Board’s official
act imposing Licensee’s suspension under Sections 40(b) and 43(b) of the Act
occurred in 2019, before Section 3113 of Act 53 became effective, the amendments
14
in Section 3113(f) of Act 53 limiting professional discipline to felony drug
trafficking convictions do not apply to Licensee.
Accordingly, we affirm the Board.
MICHAEL H. WOJCIK, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Omar Almusa, M.D., :
:
Petitioner :
:
v. : No. 342 C.D. 2022
:
State Board of Medicine, :
:
Respondent :
ORDER
AND NOW, this 13th day of July, 2023, the Final Memorandum Order
of the State Board of Medicine dated March 17, 2022, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Omar Almusa, M.D., :
Petitioner :
:
v. : No. 342 C.D. 2022
: Argued: April 5, 2023
State Board of Medicine, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
DISSENTING OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: July 13, 2023
Omar Almusa, M.D. (Petitioner) was convicted of a crime that, under the law
at the time, resulted in the automatic suspension of his medical license in July 2019,
which became final in November 2019. Petitioner does not challenge the validity of
this suspension or seek to vacate or expunge it from his record. (Petitioner’s Brief
(Br.) at 10, 17.) Rather, Petitioner seeks to have his petition to terminate the
automatic suspension and reinstate his license (Reinstatement Application)
considered in accordance with the law in effect at the time he filed his
Reinstatement Application. Section 2 of the Act of July 1, 2020, P.L. 575, No. 531
1
Section 3113(f) provides:
(f) Drug trafficking.--Notwithstanding any provision of law to the contrary, the
provisions of the respective practice acts relating to felony drug convictions
under the [A]ct of April 14, 1972, P.L. 233, [as amended, 35 P.S. §§ 780-101—
(Footnote continued on next page…)
(Act 53), which added, among other provisions, Section 3113(f) to Title 63, 63
Pa.C.S. § 3113(f), became effective on December 28, 2020, and redefined how
licensing boards, in official acts, consider criminal offenses. Petitioner filed his
Reinstatement Application on April 19, 2021, so at the time he filed his Application,
Section 3113(f) was in effect. Only those convicted of “drug trafficking offenses,”
as defined by Section 3113, are required to wait 10 years to seek reinstatement under
Section 43(b) of the Medical Practice Act of 19852 (Act). Otherwise, the State Board
780-144,] known as The Controlled Substance, Drug, Device and Cosmetic Act
[(Drug Act)], or a conviction for an offense under the laws of another jurisdiction
which, if committed in this Commonwealth, would be a felony under the [Drug
Act], shall only apply to an individual who has been convicted of a drug
trafficking offense. The licensing board or licensing commission may show, by a
preponderance of the evidence, that the amount or weight of the controlled
substance involved in a conviction meets the requirements for a drug trafficking
offense.
Id. (emphasis added). Relevant here, a “[d]rug trafficking offense” is “[a] violation of [S]ection
13(a)(14), (30), or (37) of [t]he [Drug Act, 35 P.S. § 780-113(a)(14), (30), (37)], if the controlled
substance . . . is: . . . [a] narcotic drug classified in Schedule I or Schedule II under [S]ection 4 of
[t]he [Drug Act, 35 P.S. § 780-104], if the aggregate weight . . . involved is at least 100 grams.”
63 Pa.C.S. § 3113. Petitioner’s conviction involved 39.6 grams of hydrocodone, a Schedule II
controlled substance, (Reproduced Record (R.R.) at 17a), and, therefore, would not constitute a
drug trafficking offense.
2
Act of December 20, 1985, P.L. 457, as amended, 63 P.S. § 422.43(b). Section 43(b)
states:
(b) Reinstatement after felony conviction.--Any person whose license,
certificate or registration has been suspended or revoked because of a felony
conviction under the [Drug Act] or similar law of another jurisdiction, may apply
for reinstatement after a period of at least ten years has elapsed from the date
of conviction. The [State Board of Medicine (Board)] may reinstate the license if
the [B]oard is satisfied that the person has made significant progress in personal
rehabilitation since the conviction such that his reinstatement should not be
expected to create a substantial risk of harm to the health and safety of his patients
or the public or a substantial risk of further criminal violations and if the person
(Footnote continued on next page…)
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of Medicine (Board) can look at, among other considerations, a person’s “progress
in personal rehabilitation since the conviction,” and the potential “risk of harm to the
health and safety of [the] patients or the public,” to determine whether to reinstate
the license. 63 P.S. § 422.43(b). Petitioner was not convicted of a drug trafficking
offense, so, under Section 3113(f), he would not be required to wait 10 years to seek
the reinstatement of his license under Section 43(b) of the Act. Had Act 53 been in
effect at the time of Petitioner’s conviction, there would not have even been an
automatic suspension of his license; thus, allowing Petitioner the ability to seek
reinstatement earlier would not be inconsistent with the current state of the law.
Although Petitioner’s position seems like a common sense understanding and
straightforward reading of the plain language of the statutory provisions at issue, the
Board, and the Majority, overly complicate the inquiry. However, after analyzing
the statutory provisions, case law, and rule of lenity, I believe the Board must
consider Petitioner’s Reinstatement Application. I, therefore, would reverse the
Board, and must, respectfully, dissent.
Various sections in the Act work together to establish the processes for the
suspension of a license and the subsequent reinstatement of that license if the Board
concludes reinstatement is appropriate. At issue here are the Act’s penalty
provisions, the automatic suspension provision, and the reinstatement provision for
automatically suspended licenses. Importantly, whether an automatic license
suspension occurs in the first instance, and whether the 10-year waiting period to
seek reinstatement of that license applies, are predicated on a felony drug
meets all other licensing qualifications of this act, including the examination
requirement.
Id. (emphasis added).
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conviction. This has not changed. What has changed is the General Assembly’s
definition of which felony drug convictions are subject to the penalty provisions.
The provision now reads, “[n]otwithstanding any provision of law to the contrary,
the provisions of the respective practice acts relating to felony drug convictions
under the [Drug Act] shall only apply to an individual who has been convicted of a
drug trafficking offense.” 63 Pa.C.S. § 3113(f). This change, set forth in Section
3113(f), is applicable to official actions taken by the Commonwealth’s licensing
boards after December 28, 2020.
Petitioner argues, essentially, that the reinstatement of a suspended license by
the Board is an official act distinct from the automatic suspension. As they are
distinct official actions, the predicate, a felony drug conviction subject to the penalty
provisions of the Act, must exist at the time each official act is sought. Petitioner
was not convicted of a drug trafficking offense. There is, thus, no retroactive
application of Act 53 because, while the Board’s official act of suspending his
license occurred prior to Act 53, the Reinstatement Application was filed after Act
53’s effective date.
Section 40(b) of the Act3 relates to the automatic suspension of a license based
on certain Drug Act (or similar extra-jurisdictional law) convictions, which, at the
3
Section 40(b) of the Act states:
(b) Automatic suspensions.--A license or certificate issued under this act shall
automatically be suspended upon the legal commitment to an institution of a
licensee or certificate holder because of mental incompetency from any cause upon
filing with the [B]oard a certified copy of such commitment, conviction of a felony
under [t]he [Drug Act], or conviction of an offense under the laws of another
jurisdiction, which, if committed in this Commonwealth, would be a felony under
[t]he [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 pending any appeal of a conviction.
(Footnote continued on next page…)
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time of Petitioner’s conviction, required the automatic suspension of Petitioner’s
license. The Board officially acted upon the Commonwealth’s initial petition
seeking this automatic suspension of Petitioner’s license under Section 40(b) of the
Act, first by imposing a temporary suspension in July 2019, followed by its final
action of suspending the license in November 2019. Petitioner’s license suspension
was subject to the reinstatement procedures of Section 43(b) of the Act.
Section 43(b) does not grant automatic reinstatement based on the mere passage of
time but requires the Board to make an individualized determination on whether
a license should be reinstated. As part of this determination, the Board must
consider, among other things, the progress the person has made toward rehabilitation
and whether reinstatement would “create a substantial risk of harm to the health and
safety of [the] patients or the public.” 63 P.S. § 422.43(b).
These two provisions, while related, require separate official actions to be
taken by the Board and are each predicated on the existence of a felony drug
conviction to trigger, respectively, the automatic suspension and 10-year waiting
period for seeking reinstatement. As the two actions, suspension and reinstatement,
are distinct, official acts, there is no retroactivity issue in applying Act 53 to the
Reinstatement Application because Petitioner’s Reinstatement Application, upon
which the Board had to act officially, was filed on April 19, 2021. This is after
Section 3113(f), and its redefinition of what constitutes a felony drug conviction for
the purposes of action by a licensing board, became effective. Thus, applying
Act 53’s provisions to the Reinstatement Application would not be a retroactive
Restoration of such license or certificate shall be made as hereinafter provided
in the case of revocation or suspension of such license or certificate.
63 P.S. § 422.40(b) (emphasis added).
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application, but the prospective application of Act 53. And, under the plain terms
of Section 43(b) of the Act, as of December 28, 2020, the 10-year waiting period to
seek reinstatement applies only to a person whose predicate felony drug conviction
is a drug trafficking offense, which does not include Petitioner.
The Majority relies on two cases in which this Court has read these two
provisions together to conclude that there is an automatic, minimum 10-year
suspension for a felony drug conviction, to conclude that any consideration of
reinstatement before 10 years is prohibited. Khan v. Bureau of Pro. & Occupational
Affs., State Bd. of Med. (Pa. Cmwlth., No. 1047 C.D. 2016, filed Nov. 21, 2017);
Galena v. Dep’t of State Pro. & Occupational Affs., 551 A.2d 676, 677 n.1, 678 (Pa.
Cmwlth. 1988). I do not read these cases as supporting the conclusion that the
Board’s actions under Sections 40(b) and 43(b) are not distinct, official actions,
which would bring an official action under Section 43(b) under the ambit of Act 53
if filed after December 28, 2020. Moreover, both Khan, an unreported opinion that
is not binding,4 and Galena, were rendered before Act 53 redefined what constitutes
a felony drug conviction, which is the predicate to when a reinstatement petition can
be filed under the plain language of Section 43(b). Thus, I do not find those
decisions relevant or persuasive following the General Assembly’s enactment of Act
53.
In addition to Petitioner’s interpretation of the plain language of Act 53, case
law and the rule of lenity also support his argument that applying Act 53 to the
Reinstatement Application is not an improper retroactive application of the statute.
First, the United States Supreme Court, in Landgraf v. USI Film Products, 511 U.S.
244, 273 (1994), held that “[w]hen the intervening statute authorizes or affects the
4
See Pennsylvania Rule of Appellate Procedure 126(b)(1), Pa.R.A.P. 126(b)(1); Section
414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
RCJ – 6
propriety of prospective relief, application of the new provision is not
retroactive.” (Emphasis added.) The prospective relief for the suspension of
Petitioner’s license suspension is the reinstatement of that license under Section
43(b). The concerns underlying the prohibition against the retroactive application
of a law, that doing so “disrupt[s]” “settled expectations” as to what the law is and
the ability to conform one’s conduct accordingly, id. at 265, or will be used “as a
means of retribution,” id. at 266, are inapplicable under these circumstances because
the change relates to the remedy – the prospective reinstatement of Petitioner’s
license. Allowing Petitioner to seek the reinstatement of his license earlier, based
on the General Assembly’s policy decision, expressed in Section 3113(f), that only
drug trafficking convictions should be considered in license disciplinary matters, and
the fact that Petitioner’s conviction does not qualify cannot be considered a “means
of retribution.” Id. Nor does it affect the ability to know what the law is and to
conform one’s conduct to the law because the conduct has already occurred.
Therefore, I agree with Petitioner that Landgraf supports his interpretation. (See
Petitioner’s Br. at 18.)
Second, in Rose Corporation v. Workers’ Compensation Appeal Board
(Espada), 238 A.3d 551 (Pa. Cmwlth. 2020) (en banc), this Court recently addressed
the necessary considerations for determining whether a statute should apply
prospectively or retroactively. This Court recognized the general rule that statutes
must be construed prospectively, unless the General Assembly clearly intended
otherwise. Id. at 559 (citing Section 1926 of the Statutory Construction Act of 1972
(SCA), 1 Pa.C.S. § 19265). Amendments to statutes must be construed prospectively
from the date the amendment becomes effective. Id. (citing Section 1953 of the
5
Section 1926 of the SCA states: “No statute shall be construed to be retroactive unless
clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. § 1926.
RCJ – 7
SCA, 1 Pa.C.S. § 19536). Nonetheless, this Court continued, “[a]n exception to this
rule is where the statute is merely procedural and does not alter any substantive
rights, in which case it may be retroactively applied, irrespective of whether the
statutory amendment includes an express retroactivity clause.” Id. (citing Keystone
Coal Mining Corp. v. Workmen’s Comp. Appeal Bd. (Wolfe), 673 A.2d 418, 421 (Pa.
Cmwlth. 1996)) (emphasis added).
A substantive right is implicated when the retroactive application of a
statute imposes new legal burdens on past transactions or
occurrences. . . . On the other hand, procedural statutes establish the
method for enforcing a right, but have no bearing on whether a
claimant has a legal entitlement to relief under the facts as they exist in
a particular case. . . .
Id. (quoting Keystone Coal Mining, 673 A.2d at 421) (emphasis added).
Applying Act 53 to the Reinstatement Application would not impose “new
legal burdens on past transactions.” See id. (quoting Keystone Coal Mining, 673
A.2d at 421). The Commonwealth already met its burden of establishing that
Petitioner was convicted of a crime that, at the time, required the automatic
suspension of his license. However, “[i]t is well settled in the law that a medical
professional license, once obtained in compliance with the law, becomes a privilege
or right in the nature of property and is safeguarded by due process requirements.”
6
Section 1953 of the SCA provides:
Whenever a section or part of a statute is amended, the amendment shall be
construed as merging into the original statute, become a part thereof, and replace
the part amended, and the remainder of the original statute and the amendment shall
be read together and viewed as one statute passed at one time; but the portions of
the statute which were not altered by the amendment shall be construed as effective
from the time of their original enactment, and the new provisions shall be construed
as effective only from the date when the amendment became effective.
1 Pa.C.S. § 1953.
RCJ – 8
Bhattacharjee v. Dep’t of State, State Bd. of Med., 808 A.2d 280, 283 (Pa. Cmwlth.
2002) (citation omitted). Even when a license is suspended, the holder still possesses
a property right in that license. McGrath v. Bureau of Pro. & Occupational Affs.,
State Bd. of Nursing, 173 A.3d 656, 665 (Pa. 2017) (citing Brown v. State Bd. of
Pharmacy, 566 A.2d 913, 915 (Pa. Cmwlth. 1989)). Petitioner’s license, in which
he continues to have a property right, was subject to reinstatement “as provided
in [S]ection 43(b).” (Reproduced Record (R.R.) at 31a.) Section 43(b) precludes a
licensee who has a felony drug conviction from seeking reinstatement for 10 years,
but, as of December 28, 2020, the types of felony drug convictions to which this
10-year period would apply was unanimously7 narrowed by the General Assembly
and no longer includes Petitioner’s conviction. Allowing Petitioner to seek
reinstatement earlier than originally anticipated would not change that his license
was suspended or whether he is entitled to a medical license as of the time he filed
the Reinstatement Application. Rather, it relates to “the method for enforcing” the
right to a license that Petitioner already has. See Rose Corp., 238 A.3d at 559
(quoting Keystone Coal Mining, 673 A.2d at 421). Ultimately, applying Act 53 to
the Reinstatement Application “does not alter [Petitioner’s] past status” but “gives
effect to [Petitioner’s] status as it existed at the time [he] filed [his Reinstatement
Application].” Whitfield v. Workers’ Comp. Appeal Bd. (Tenet Health Sys.
Hahnemann LLC), 188 A.3d 599, 617 (Pa. Cmwlth. 2018) (en banc) (holding that
applying Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 161 A.3d 827 (Pa. 2017), which found the impairment rating evaluation
7
See https://www.legis.state.pa.us/cfdocs/billinfo/bill_history.cfm?syear=2019&sind
=0&body=S&type= B&bn=637 (last visited June 26, 2023) (reflecting that the votes approving
the bill that became Act 53 in the House and the Senate were, respectively, 201-0 and 50-0).
RCJ – 9
system unconstitutional, to a subsequently filed petition to reinstate benefits was not
unlawfully retroactive) (emphasis in original).
Finally, the Board refused to apply Act 53 retroactively because accepting
“Petitioner’s . . . argument would require the [Board] to assume that [the General
Assembly] chose a surprisingly indirect route to convey an important and easily
expressed message.” (Board Opinion (Op.) at 2 (quoting Landgraf, 511 U.S. at 262)
(alterations in original).) The Majority similarly concludes there was no clear,
expressed intention for Act 53 to apply retroactively. Almusa v. State Bd. of Med.,
__ A.3d __, __ (Pa. Cmwlth., No. 342 C.D. 2022, filed July 13, 2023), slip op. at 14.
I disagree that Petitioner’s arguments require “such a broad and unsupported
assumption,” (Board Op. at 2), or that the General Assembly’s intent as to the
application of Act 53 was unclear. Through Section 3113(f), the General Assembly
made the policy decision that “the provisions of the respective practice acts
relating to felony drug convictions under the [Drug Act], shall only apply to an
individual who has been convicted of a drug trafficking offense,” in licensing
boards’ official actions after December 28, 2020. 63 Pa.C.S. § 3113(f) (emphasis
added). The stated purpose of the legislation that became Act 53 was to create a
“fair, modern set of rules for consideration of criminal records in occupational
licensure, which will remove unnecessary barriers to employment.” Senate Co-
Sponsorship Memorandum, Senate Bill 637 (Apr. 3, 2019) (emphasis added).8
Section 43(b) of the Act, left untouched by the General Assembly, specifically
ties the 10-year restriction on seeking reinstatement to those having a felony drug
conviction under the Drug Act or similar law, which as of December 28, 2020, was
redefined by the General Assembly to include only felony drug trafficking
8
See https://www.legis.state.pa.us//cfdocs/Legis/CSM/showMemoPublic.cfm?chamber
=S&SPick=20190&cosponId=29091 (last visited June 26, 2023).
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convictions. Section 43(b) of the Act and Section 3113(f) must be read in pari
materia and construed together, as they both address the effect of felony drug
convictions on professional licensing decisions. Section 1932 of the SCA, 1 Pa.C.S.
§ 1932.9 When construed this way, a reasonable interpretation of these provisions is
that the General Assembly intended to allow those whose licenses had been
automatically suspended for felony drug convictions that no longer warrant
consideration for discipline under Act 53 (or suspension under Section 40(b) of the
Act) to seek reinstatement before the 10-year period expires if sought after
December 28, 2020. This interpretation gives effect to the General Assembly’s
intent in Act 53, as well as the plain language of Section 43(b) of the Act and Section
3113(f). This is the object of statutory construction, Section 1921(a), (b) of the SCA,
1 Pa.C.S. § 1921(a), (b),10 and, therefore, I disagree with the rejection of Petitioner’s
interpretation.
While I am not persuaded by the Majority’s differing interpretation, to the
extent that there are multiple interpretations, and thus ambiguity, these provisions
are punitive and, therefore, subject to the rule of lenity, which favors Petitioner. See
Section 1928(b)(1) of the SCA, 1 Pa.C.S. § 1928(b)(1) (requiring penal statutes to
be interpreted strictly); Pa. State Real Est. Comm’n v. Keller, 165 A.2d 79, 80 (Pa.
1960) (holding that a statute involving the investigation and suspension of
professional licenses is penal in nature); Richards v. Pa. Bd. of Prob. & Parole, 20
A.3d 596, 600 (Pa. Cmwlth. 2011) (stating the rule of lenity provides that
9
Section 1932 of the SCA provides, in pertinent part: “(a) Statutes or parts of statutes are
in pari materia when they relate to the same persons or things” and “(b) Statutes in pari materia
shall be construed together, if possible, as one statute.” 1 Pa.C.S. § 1932.
10
Section 1921(a) and (b) states: “(a) The object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the General Assembly . . . ”; and “(b) When
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(a), (b).
RCJ – 11
ambiguities in penal statutes are to be construed against the government), superseded
by statute on other grounds as recognized in Penjuke v. Pa. Bd. of Prob. & Parole,
203 A.3d 401, 417 (Pa. Cmwlth. 2019).
For these reasons, I believe the Board erred in not applying Section 3113(f) to
allow it to consider Petitioner’s Reinstatement Application and determine whether it
is satisfied that Petitioner meets the requirements for reinstatement under Section
43(b) of the Act. Therefore, I must, respectfully dissent from the Majority’s
affirmance of the Board’s Order.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
Judge McCullough and Judge Wallace join this opinion.
RCJ – 12