“our Supreme Court has consistently interpreted [a]rticle I, [s]ection 1 of the Pennsylvania Constitution[, Pa. Const. art. I, § 1,] as guaranteeing an individual’s right to engage in any of the common occupations of life”
How later courts described this case
- “our Supreme Court has consistently interpreted [a]rticle I, [s]ection 1 of the Pennsylvania Constitution[, Pa. Const. art. I, § 1,] as guaranteeing an individual’s right to engage in any of the common occupations of life”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eugene Knelly, :
Petitioner :
: No. 1088 C.D. 2022
v. :
: Submitted: May 5, 2023
Pennsylvania Department of Health, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: December 13, 2023
Eugene Knelly (Knelly) petitions for review of the September 9, 2022
Final Agency Determination and Order (Final Determination) of the Department of
Health, Bureau of Emergency Medical Services (Department), which affirmed the
decision of a hearing officer to revoke Knelly’s Emergency Medical Technician
(EMT) certification. The Department revoked Knelly’s certification based on his
(1) nolo contendere plea to second-degree felony strangulation, and (2) failure to
timely report the conviction to the Department. Knelly contends on appeal that the
Department abused its discretion by imposing the most severe sanction available,
the revocation of his certification, which was manifestly unreasonable due to the
nature of his nolo contendere plea and the mitigating evidence. After careful review,
we agree. We accordingly vacate the Department’s Final Determination and remand
for further consideration consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The material facts are not disputed. In the Commonwealth of
Pennsylvania, EMTs and paramedics are governed by the Emergency Medical
Services System Act (EMS Act).1 Knelly is an EMT who held an EMT certification
with an expiration date of September 30, 2022. (Final Determination at 1;
Reproduced Record (R.R.) at 090a.) Knelly was involved in a domestic incident
with his minor son and, based on the police’s interview with the son, was charged
on October 15, 2019, with felony strangulation,2 misdemeanor simple assault,3 and
misdemeanor reckless endangerment.4 (Final Determination at 2 & n.1; R.R. at
091a.) Upon recommendation of his attorney, and as part of a plea agreement with
the Commonwealth, on October 19, 2020, Knelly entered a plea of nolo contendere5
to second-degree felony strangulation.6 (Final Determination at 2; R.R. at 091a.)
1
35 Pa. C.S. §§ 8101-8158.
2
18 Pa. C.S. § 2718(a)(1).
3
18 Pa. C.S. § 2701(a)(1).
4
18 Pa. C.S. § 2705.
5
The Pennsylvania Superior Court has described the nature and effect of a nolo contendere
plea as follows:
[A]lthough a nolo contendere plea has the same effect as a guilty
plea for purposes of sentencing and is considered a conviction, it is
not an admission of guilt. Unlike a guilty plea, a nolo contendere
plea does not involve an acknowledgment as to having committed
an illegal act. Rather, the nolo contendere plea admits that the
allegations, if proven, meet the elements of the offense or offenses
charged. . . . In addition, the difference between a plea of nolo
contendere and a plea of guilty is that, while the latter is a confession
binding defendant in other proceedings, the former has no effect
beyond the particular case.
Commonwealth v. Moser, 999 A.2d 602, 606 (Pa. Super. 2010) (internal citations and quotations
omitted).
6
Section 2718(a) of the Crimes Code defines the crime of strangulation as follows:
2
Knelly was sentenced to 36 months’ probation, with the first 12 months to be served
on house arrest with electronic monitoring. (Certified Record (C.R.) at 178.) The
sentencing order further provided that Knelly could have contact with his son and
must maintain full-time employment. Id.
On April 7, 2021, the Department issued to Knelly a four-count Order
to Show Cause (OSC). (R.R. at 057a-61a.) Pertinent to this appeal,7 Count I of the
OSC alleged that, pursuant to Section 8121(a)(14) of the EMS Act,8 Knelly’s EMT
certification should be revoked because of his nolo contendere plea to felony
strangulation. (R.R. at 059a.) In Count IV, the Department alleged that Knelly’s
certification should be revoked pursuant to Section 8121(a)(12) of the EMS Act, 35
(a) Offense defined.--A person commits the offense of
strangulation if the person knowingly or intentionally impedes the
breathing or circulation of the blood of another person by:
(1) applying pressure to the throat or neck; or
(2) blocking the nose and mouth of the person.
18 Pa. C.S. § 2718(a). Although strangulation typically is graded as a second-degree
misdemeanor, see id. § 2718(d)(1), it is graded as a second-degree felony where, as pertinent here,
it is committed against a “family or household member.” Id. § 2718(d)(2)(i).
7
Although the OSC originally included four counts, the Department later withdrew Counts
II and III, which sought revocation of Knelly’s certification based on the Department’s erroneous
allegations that Knelly had also pleaded nolo contendere to simple assault and reckless
endangerment. (R.R. at 059a-60a, 064a-65a; C.R. at 056.) Those charges were withdrawn as part
of Knelly’s plea agreement. (Hearing Officer Michael T. Foerster Proposed Report at 2 nn.1, 4;
R.R. at 070a.)
8
Section 8121(a)(14) authorizes discipline of an emergency medical services (EMS)
provider for a “[c]onviction of a felony, a crime related to the practice of the EMS provider[,] or a
crime involving moral turpitude,” and defines “conviction” to include “a judgment of guilt, a plea
of guilty[,] or a plea of nolo contendere.” 35 Pa. C.S. § 8121(a)(14) (italics supplied).
3
Pa. C.S. § 8121(a)(12),9 because Knelly failed to report his conviction to the
Department within 30 days as required by Section 8113(i)(4) of the EMS Act, 35 Pa.
C.S. § 8113(i)(4). (R.R. at 060a-61a.)
Hearing Officer Michael T. Foerster (Hearing Officer) conducted an
online hearing on November 2, 2021.10 At the hearing, the Department presented
three witnesses: (1) Jenni Hoffman, an EMS Program Specialist for the Department,
(2) Dr. Aaron Rhone, Emergency Medical Program Manager, and (3) Dylan
Ferguson, Director of the Bureau of EMS. The Department also introduced into
evidence the docket from Knelly’s criminal case, the police criminal complaint with
the affidavit of probable cause,11 Knelly’s nolo contendere plea and sentence, and
several screenshots of Knelly’s online EMS account with the Department.12 Knelly
testified on his own behalf and presented the testimony of Kenneth Soult, the
ambulance chief in Mahanoy City and Knelly’s supervisor.
9
Section 8121(a)(12) authorizes discipline of an EMS provider for the “[f]ailure to comply
with reporting requirements imposed under this chapter or as established by the [D]epartment.”
35 Pa. C.S. § 8121(a)(12).
10
Section 8157 of the EMS Act, 35 Pa. C.S. § 8157, requires the Department to hold
hearings and issue adjudications in accordance with the Administrative Agency Law, 2 Pa. C.S.
§§ 501-508, 701-704. It further authorizes appeals of Department adjudications to this Court. Id.
11
Affidavits of probable cause are filed with charging criminal complaints to support the
issuance of an arrest warrant. See Pa.R.Crim.P. 513(B)(2).
12
The Department’s exhibits were admitted under seal and, accordingly, were not included
in Knelly’s Reproduced Record. They were received by this Court from the Department on
November 17, 2022, as part of the certified agency record. (C.R. at 155-96.)
4
Ms. Hoffman testified that she was advised by Eastern PA EMS
Council13 that Knelly had a criminal record. (C.R. at 062.) She thereafter conducted
an audit, which included obtaining a background check and criminal history report.
(C.R. at 063.) During her audit, Ms. Hoffman discovered Knelly’s conviction of
felony strangulation resulting from his nolo contendere plea on October 19, 2020.
(C.R. at 064-65, 067.) Ms. Hoffman reiterated the allegations from the affidavit of
probable cause supporting the criminal complaint filed against Knelly, which
detailed the alleged incident between Knelly and his son. (C.R. at 067-68.) Ms.
Hoffman also testified that the Department had no record of Knelly reporting his
conviction to the Department within 30 days. (C.R. at 069.) After discussing
Knelly’s conviction internally, Ms. Hoffman testified that the Department “felt his
certification should be revoked because of the felony conviction, the circumstances
surrounding the conviction, and his failure to report the conviction as required.”
(C.R. at 070.)14 Ms. Hoffman acknowledged that, in conducting her audit, she did
not speak with anyone involved with Knelly’s case, including the investigating
police officer, Knelly himself, Knelly’s son, Knelly’s son’s mother, or any treating
physicians, and accordingly had no firsthand knowledge of the circumstances
underlying the charge. (C.R. at 071-72.) Ms. Hoffman did not believe that an in-
13
Eastern PA EMS Council is one of several regional EMS councils that contract with the
Department to assist with investigations and advise the Department of issues with EMS providers
within their region. (C.R. at 062.)
14
More specifically, Ms. Hoffman testified that a felony strangulation conviction would
be problematic for an EMS provider because, “as an EMS provider, [ ] Knelly should have been
more engaged and aware of his child’s medical compliance, not punishing him out of frustration
by assaulting him when he simply forgot if he had taken medication that day. . . . If [ ] Knelly is
capable of strangling his own child, how can we trust him with the safety of strangers when he
becomes angry?” (C.R. at 070-71.)
5
person investigation was necessary because she had read the facts alleged in the
affidavit of probable cause. (C.R. at 072.)
Regarding reporting requirements, Ms. Hoffman testified that the
Department’s EMS website permits EMS providers to self-report convictions by
updating their criminal history on the website. (C.R. at 073-74.) When they do so,
a criminal history tab appears in their account, which cannot be deleted. (C.R. at
074, 079-80.) Because that tab did not appear in Knelly’s online account, the
Department concluded that he did not report his conviction. Id. Ms. Hoffman also
testified that the Department received no records from Knelly regarding his
conviction. (C.R. at 069.)
The Department next called Dr. Rhone, who further explained the
Department’s decision to seek revocation of Knelly’s license:
The guilty plea of no contest to strangulation raises grave
concern for the [Department], again, even greater when it
was the provider’s child. This is a concern. As we looked
through the affidavit of probable cause which he pled
guilty to the contents of, there was excessive force used. .
. . In this case, he took extreme actions against his own
child for reporting that he took the medication when he
simply forgot.
(C.R. at 082-83.) Dr. Rhone, like Ms. Hoffman, acknowledged that he had no
firsthand knowledge of any facts underlying the strangulation charge and that he did
not need to speak directly with anyone involved. Rather, he reviewed the affidavit
of probable cause and considered it the “officer’s sworn testimony.” (C.R. at 084.)
Mr. Ferguson, who was ultimately responsible for the recommendation
to revoke Knelly’s certification, considered the same documents reviewed by Ms.
Hoffman and Dr. Rhone. (C.R. at 088.) Mr. Ferguson testified, in pertinent part, as
follows regarding the Department’s decision:
6
[T]here were several factors that were concerning. One of
those factors included the fact that the victim was a minor,
and that minor was in [Knelly’s] charge, meaning that [he]
had direct control and a responsibility for [his] wellbeing,
just as [ ] EMS provider[s] would have a patient within
their charge in their professional capacity.
Additionally, because the matter actually involved, as
alleged in the charging documents which the plea of [nolo
contendere] was made to, was that it had to do with
medication compliance, certainly an issue that [EMS]
providers in the Commonwealth . . . deal with patients,
oftentimes having to respond to patients that . . . maybe are
non-compliant with their own medication, and ultimately,
the severity of the actions, to the point of creating visual
impairment and also examining the grading of the charge
that was pled to, the fact that it was a felony in the second
degree.
....
So when I evaluated the circumstances and I evaluated the
statutory provisions, duties and responsibilities of the
Department . . . , I ultimately felt that I had no other good
faith choice other than to sustain the recommendation of
my regulatory and compliance panel and ultimately issue
the order to show cause to revoke the certification.
(C.R. at 088-89.) Regarding his understanding of Knelly’s nolo contendere plea,
Mr. Ferguson testified that he understood that such a plea means that Knelly does
not “contest the fact that there is ample evidence that could potentially sustain a
conviction during trial.” (C.R. at 091.)15
15
Mr. Ferguson testified that the Department is required by “statute” to review affidavits
of probable cause in its investigations. (C.R. at 095-96.) Section 8105(b)(14) of the EMS Act, 35
Pa. C.S. § 8105(b)(14), authorizes the Department to “investigate, based on complaints and
information received, possible violations of this chapter and regulations under this chapter and
take disciplinary actions, seek injunctions and refer matters for criminal prosecution.”
7
Knelly first presented the testimony of Mr. Soult, who testified that he
is the chief of the Mahanoy City ambulance service and has been Knelly’s supervisor
since 2007. (C.R. at 101-02.) He further testified that he has never had any
performance issues with Knelly and has never received any patient complaints
regarding Knelly’s care. He also stated that losing Knelly as an EMT would pose
significant hardship on Mahanoy City’s ambulance service, possibly putting them
“out of service” for a period of time. (C.R. at 101-04, 110.) Mr. Soult had no
concerns with Knelly continuing as an EMT and stated that he would trust Knelly
with his own family. (C.R. at 104.)
Knelly then testified on his own behalf. He testified that he has been
employed as an EMT in Mahanoy City for approximately 13 to 14 years and has
been an EMT for approximately 26 years. (C.R. at 115-16.) Knelly described the
custody dispute that was ongoing at the time of the incident that gave rise to his
strangulation charge. Knelly stated that his son’s mother had been coaching his son,
then 11 years old, to make allegations of abuse against Knelly, which the son
eventually did. (C.R. at 118.) At the time of the incident, Knelly had primary
physical and legal custody of his son, with his son’s mother having supervised
visitation due to her drug and related criminal issues. (C.R. at 118.) Knelly indicated
that he had raised his son exclusively for six years prior to the incident and that he
never strangled, spanked, or abused him physically. (C.R. at 120-21.) He
nevertheless decided, on the advice of his criminal counsel, to enter the nolo
contendere plea to protect his son from having to go to court. (C.R. at 121.) Knelly
received a sentence of probation which, according to Knelly’s understanding, was
acceptable to the district attorney because Knelly’s son admitted to lying about the
incident at the request of his mother. (C.R. at 123-24.)
8
Regarding his reporting requirements, Knelly testified that he was
aware that he had to report his conviction under the EMS Act and that he attempted
to do so the day of his plea and sentence. (C.R. at 125-26.) He stated that, despite
his attempts to enter the conviction on the Department’s website, the website is
difficult to navigate and did not give him any confirmation that the information was
received by the Department. (C.R. at 126-27.) He further indicated that the
Department would be able to check to see if he logged into the system that day.
(C.R. at 126.) Knelly indicated that he never intended to not report his conviction
and that he told his boss and coworkers that he did report it. (C.R. at 128-29.)
Nevertheless, after purportedly attempting to report his conviction, Knelly did not
follow up with the Department or submit any records, but instead contacted the
Eastern PA EMS Council and spoke with “Deputy Director Smith.” (C.R. at 133-
34.) Knelly stated that he did not follow up with the Department to provide records
of his conviction because he was not familiar with the procedure for doing so, and
he assumed that, if the Department wanted any records, they would ask for them.
(C.R. at 136.) Knelly also reiterated that he has been an EMT for 26 years and that
being an EMT is the only way he knows how to make a living. (C.R. at 129.) He
currently sees his son on the weekends pursuant to an informal agreement with his
son’s mother. (C.R. at 131.)
Following the hearing, closing arguments, and briefing, on January 6,
2022, the Hearing Officer issued a Proposed Report and order revoking Knelly’s
EMT certification. (R.R. at 069a-84a.) The Hearing Officer found and concluded
that Knelly’s nolo contendere plea qualified as a “conviction” and justified a
Department sanction pursuant to Section 8121(a)(14) of the EMS Act, 35 Pa. C.S. §
8121(a)(14). (R.R. at 076a-77a.) The Hearing Officer noted Knelly’s extensive
9
testimony that he did not commit the offense underlying his nolo contendere plea,
but dismissed Knelly’s testimony as an attempt to collaterally challenge his
conviction. (R.R. at 077a.) The Hearing Officer further concluded, however, that
the Department’s consideration of, and reliance upon, the police affidavit of
probable cause was improper. (R.R. at 078a.) The Hearing Officer noted that the
facts alleged in an affidavit of probable cause (1) serve the singular purpose of
permitting the issuance of an arrest warrant, (2) do not support a conviction at trial,
(3) are not subject to cross-examination, and (4) are hearsay. (R.R. at 079a-80a.)
The Hearing Officer also noted that, although there was significant disagreement
regarding the functioning of the Department’s EMS website, there still was no
evidence that Knelly did, in fact, report his conviction as required by Section
8113(i)(4) of the EMS Act, 35 Pa. C.S. § 8113(i)(4). The Hearing Officer therefore
concluded that Knelly’s failure to report also justified a Department sanction
pursuant to Section 8121(a)(12) of the EMS Act, 35 Pa. C.S. § 8121(a)(12).
Regarding the specific sanction to be imposed, the Hearing Officer
concluded as follows:
As mentioned above, the [Department]’s consideration
of underlying evidence was incorrect. This leaves the
question[:] does the simple admission of the elements of
felony strangulation give sufficient purchase for the
[Department] to order revocation of [Knelly’s] EMT
certificate? The undersigned respectfully posits that the
[Department] would be well within [its] authority to
revoke certification simply based on findings of elemental
strangulation, [i.e.], [without] the allegations in the
affidavit of probable cause. Felony strangulation is a
gruesome, troubling crime that raises obvious concerns
about one certified to render help to the helpless. The
elements . . . provide sufficient [support] for revocation.
10
(Hearing Officer Report at 14-15; R.R. at 082a-83a) (emphasis added). The Hearing
Officer accordingly ordered revocation of Knelly’s certification. (R.R. at 084a.)
Knelly filed exceptions on February 7, 2022, arguing that revocation of
his certification was excessive. (R.R. at 085a-89a.) The Department issued its Final
Determination on September 9, 2022, affirming the Hearing Officer’s decision. The
Department first addressed the question of whether the affidavit of probable cause
is hearsay and, relatedly, whether it should be considered in determining whether,
and to what extent, Knelly should be sanctioned. Relying on the rule enunciated by
this Court in Walker v. Unemployment Compensation Board of Review, 367 A.2d
366 (Pa. Cmwlth. 1976), the Department noted that only unobjected-to hearsay
evidence that is corroborated by other evidence in the record may support a finding
of fact by an administrative agency. (Final Determination at 6; R.R. at 095a.) The
Department concluded that Knelly’s testimony corroborated the limited facts that
the incident involved Knelly’s 11-year-old son and that Knelly had primary physical
and legal custody of his son at the time. (Final Determination at 7; R.R. at 096a.)
The Department otherwise concluded that, under Walker, no other facts alleged
in the affidavit would be considered. Id.
The Department nevertheless agreed that Knelly’s EMT
certification should be revoked based both on his nolo contendere plea and his
failure to report his conviction to the Department. Although the Department
acknowledged, in passing, Knelly’s mitigating evidence, it nevertheless concluded
as follows:
By pleading nolo contendere, [Knelly] admitted that he
knowingly or intentionally impeded the breathing or
circulation of the blood of another by applying pressure to
the throat or neck or blocking the nose and mouth of the
11
person[,] which in this case was . . . his minor 11-year-old
son, [who was] under his full-time care.
....
Taking into consideration the 20-plus years of service
without any discipline and the shortage of EMTs available
to fill the spot together does not overcome the aggravating
factor that Knelly pled to a felony in the second[ ]degree
relating to the strangulation of his minor son . . . , and that
due to the custody arrangement had direct control and was
solely responsible for the wellbeing of his son. Clearly
Knelly as an EMT would have the same responsibility
with a patient that he is providing service to under his
charge. An EMT must be trusted with the safety of
strangers in all situations that [are] encountered while
providing emergency [medical] services. The Hearing
Officer correctly [weighed] the gravity of the charges
against the mitigating circumstances. When taken [ ]
together these factors are to be given greater weight than
the mitigating factors.
(Final Determination, at 9-10; R.R. at 098a-99a.) The Department finally concluded
that Knelly’s conviction was not remote in time, having occurred approximately six
months prior to the Department’s filing of the OSC. (Final Determination at 10;
R.R. at 099a.) Thus, the Department concluded that “there is material relevance
between Knelly’s conviction and his present ability to perform his duties as an
EMT,” and that “it can reasonably be assumed that the character trait which led to
his conviction has remained unchanged.” (Final Determination at 10-11; R.R. at
099a-100a.)
Regarding Knelly’s failure to report his conviction, the Department
considered the evidence presented by both Ms. Hoffman and Knelly and concluded
that, “more likely than not,” Knelly failed to report. Id. at 13; R.R. at 102a. The
Department determined that, “[h]aving failed in his attempt to register on the
12
website, to follow through or to provide the documents of his plea to the Department,
Knelly is in violation of the [EMS] Act.” Id. (emphasis added). The Department
accordingly denied Knelly’s exceptions to the Hearing Officer’s report and affirmed
the revocation of his EMT certification. Id.
Knelly now petitions for review in this Court.
II. DISCUSSION
Knelly raises a single issue in this appeal, namely, whether the
Department erred or abused its discretion in affirming the revocation of his EMT
certification because such sanction is manifestly unreasonable under the
circumstances. Knelly argues that revocation is manifestly unreasonable given the
nature of his nolo contendere plea and the mitigating evidence he presented before
the Department. We agree.
A. SCOPE AND STANDARD OF REVIEW
Absent an accusation of bad faith or fraud, our review of a licensing
board’s disciplinary sanction is limited to determining “whether there has been a
manifest and flagrant abuse of discretion or a purely arbitrary execution of the
agency’s duties or functions.” Goldberger v. State Board of Accountancy, 833 A.2d
815, 817 n.1 (Pa. Cmwlth. 2003) (quoting Slawek v. State Board of Medical
Education and Licensure, 586 A.2d 362, 365 (Pa. 1991)). Further, a professional
licensing board exercises “considerable discretion in policing its licensees.” Ake v.
Bureau of Professional and Occupational Affairs, State Board of Accountancy, 974
A.2d 514, 519 (Pa. Cmwlth. 2009). The weight to be given to evidence of mitigating
circumstances is a matter of agency discretion. Burnworth v. State Board of Vehicle
Manufacturers, Dealers and Salespersons, 589 A.2d 294, 296 (Pa. Cmwlth. 1991).
Nevertheless, this Court must “correct abuses of discretion in manner or degree of
13
penalties imposed.” Ake, 974 A.2d at 519 (internal quotation omitted); see also
Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 578 A.2d
1355 (Pa. Cmwlth. 1990).
B. ANALYSIS
1. Applicable Provisions of the EMS Act
Section 8121(a)(12), (14) of the EMS Act, in pertinent part, provides as
follows:
(a) Grounds for discipline.--The department may
discipline an EMS provider or applicant for EMS provider
certification for any of the following reasons:
....
(12) Failure to comply with reporting requirements
imposed under this chapter or as established by the
[D]epartment.[16]
....
(14) Conviction of a felony, a crime related to the
practice of the EMS provider or a crime involving
16
Section 8113(i) governs the reporting requirements for applicants for EMS certification
and EMS providers. It provides, in pertinent part, as follows:
(i) Reports of convictions, discipline and exclusions.--
(1) An applicant for an EMS provider certification shall report
to the [D]epartment all misdemeanor, felony and other criminal
convictions that are not summary or equivalent offenses . . . .
(2) The applicant shall also provide the [D]epartment with a
certified copy of the criminal charging, judgment and sentencing
documents for each conviction and a certified copy of an
adjudication or other document imposing discipline against the
applicant.
....
(4) An EMS provider shall report the same type of convictions,
disciplinary sanctions and exclusions and provide the same
documents to the [D]epartment within 30 days after each
conviction, discipline and exclusion.
35 Pa. C.S. § 8113(i).
14
moral turpitude. For the purposes of this paragraph, a
conviction includes a judgment of guilt, a plea of guilty
or a plea of nolo contendere.
....
35 Pa. C.S. § 8121(a)(12), (14). Where discipline is authorized under Section
8121(a), the Department may take one or more of the following actions:
(1) Deny the application for certification.
(2) Issue a public reprimand.
(3) Revoke, suspend, limit or otherwise restrict the
certification.
(4) Require the person to take refresher educational
courses.
(5) Impose a civil money penalty not exceeding $1,000 for
each incident in which the EMS provider engages in
conduct that constitutes a basis for discipline.
(6) Stay enforcement of any suspension, revocation or
other discipline and place the individual on probation with
the right to vacate the probationary order for
noncompliance.
35 Pa. C.S. § 8121(b)(1)-(6).
2. Legal Principles Governing Licensure Revocation
The Pennsylvania Supreme Court has long stated:
[E]very citizen has an inalienable right to engage in
lawful employment. While a state may regulate a
business which affects the public health, safety and
welfare, it may not, through regulation, deprive an
individual of his right to conduct a lawful business unless
it can be shown that such deprivation is reasonably related
to the state interest sought to be protected.
Secretary of Revenue v. John’s Vending Corporation, 309 A.2d 358, 361 (Pa. 1973)
(citations omitted) (emphasis added). See also King v. Bureau of Professional and
Occupational Affairs, State Board of Barber Examiners, 195 A.3d 315, 329 (Pa.
15
Cmwlth. 2018) (“our Supreme Court has consistently interpreted [a]rticle I,
[s]ection 1 of the Pennsylvania Constitution[, Pa. Const. art. I, § 1,] as
guaranteeing an individual’s right to engage in any of the common occupations
of life”) (emphasis added).
In John’s Vending, the Secretary of Revenue revoked a wholesale
cigarette dealer’s license because its 50-percent shareholder was convicted of (1)
selling, possessing, and transporting untaxed and unstamped liquor, and (2) selling
and possessing opium derivatives. The Secretary relied on a statute that prohibited
the licensing of an entity with a 50-percent shareholder that had been convicted of a
crime involving moral turpitude. 309 A.2d at 361. On appeal, the Pennsylvania
Supreme Court examined the applicable statute, which prohibited the sale of
unstamped cigarettes to protect against the loss of tax revenue. To that end, the
statute also required a licensee to demonstrate character, integrity, and honesty. The
Supreme Court found that the “past derelictions” of the 50-percent shareholder
did not adversely affect his present ability to do his job lawfully, particularly
given that the shareholder had held a position of responsibility for a number of
years after his conviction without wrongdoing. Id. The Supreme Court concluded
that the nature of the offending conduct and its remoteness in time must be
considered where an administrative agency seeks to revoke a professional license on
the basis of a criminal conviction. That Court further explained that, “where the
prior convictions do not in any[ ]way reflect upon the [licensee’s] present ability to
properly discharge the responsibilities required by the position, . . . the convictions
cannot provide a basis for the revocation of a . . . license.” Id.
Thus, in considering whether to revoke a license based on a licensee’s
criminal conviction, John’s Vending requires that a licensing agency consider the
16
nature of the offending conduct and its remoteness in time together with the
relationship of the conviction to the licensee’s present ability to perform his or her
job responsibilities. Ake, 974 A.2d at 520; Elder v. Bureau of Professional and
Occupational Affairs, State Board of Medicine, 206 A.3d 94, 105 (Pa. Cmwlth.
2019) (citation omitted).
In Ake, the State Board of Accountancy (Board) relied on Kevin Ake’s
(Ake) unreported felony hate crime conviction, which occurred seven years prior in
Illinois, to revoke his certified public accountant (CPA) license. The Board
concluded that the revocation of Ake’s license would (1) eliminate any risk of harm
to Ake’s potential future clients; (2) deter other CPAs from committing felonies
outside the state; and (3) assure the public that only individuals of good moral
character are permitted to practice as CPAs in Pennsylvania. The Board rejected
Ake’s plea for leniency, which was based, in part, on his need for CPA credentials
to practice his profession and to maintain gainful employment. The Board further
was not persuaded by Ake’s mitigation evidence. 974 A.2d at 518-19.
Ake appealed, asserting that the Board abused its discretion by
imposing the maximum penalty allowed by law. This Court agreed. We noted that,
although a licensing board “exercises considerable discretion in policing its
licenses,” under John’s Vending, this Court has a duty “to correct abuses of
discretion in manner or degree of penalties imposed.” Id. at 519 (emphasis added).
We vacated the Board’s decision and remanded for the imposition of a lesser
sanction, explaining as follows:
John’s Vending teaches that the nature of the offending
conduct and its remoteness in time must be considered
where an agency seeks to revoke a professional license on
the basis of a conviction. In this case, nearly seven years
elapsed between Ake’s offending conduct and his
17
application to reactivate his Pennsylvania CPA
credentials. . . . [S]even years is a substantial interval of
time. Moreover, Ake’s conduct was isolated to calls made
over a two-week period; he has not engaged in similar
conduct since his arrest. . . .
[I]t is apparent that the General Assembly drafted the
disciplinary provisions of [Section 1 of] the CPA Law [17]
with an eye toward ferreting out the types of misconduct
that are anathema to the accounting profession. For
example, among the other grounds for discipline are fraud
or deceit in obtaining a CPA certificate; dishonesty, fraud
or gross negligence in the practice of accounting;
conviction of any crime involving dishonesty or fraud; and
violation of any federal or state revenue law. . . . Ake’s
harassing conduct in Illinois was certainly deplorable.
However, it does not relate to any of the character qualities
the legislature has identified as central to holding a CPA
certificate, i.e., honesty, integrity and being able to
practice accounting in a non-negligent manner.
Ake, 974 A.2d at 520. See also Elder, 206 A.3d at 105-06 (State Board of Medicine
erred and abused its discretion in relying on 14-year-old crimes and misconstruing
applicant’s mitigating evidence to conclude that applicant for license to practice
medicine and surgery did not have necessary moral character for license; board did
not “take into account its own findings that Elder’s conduct since 2004 has been not
only free of criminal conduct but dedicated to significant volunteer and public
service activities”).
3. Knelly’s Nolo Contendere Plea
With regard to his strangulation conviction, Knelly argues that the
Department imposed the most severe sanction without adequate consideration of
mitigating evidence and the fact that his conviction was based on a nolo contendere
17
Act of May 26, 1947, P.L. 318, as amended, added by Section 7 of the Act of September
2, 1961, P.L. 1165, 63 P.S. § 9.9a.
18
plea, which itself does not sufficiently connect the conviction to his present ability
to perform his duties as an EMT. We agree for at least three reasons.
First, there appears to have been throughout the proceedings in the
Department an erroneous understanding of the nature and effect of a nolo contendere
plea and, as the Department now appears to recognize, an inordinate reliance on the
facts alleged in the affidavit of probable cause. Nolo contendere pleas admit neither
to facts alleged in the affidavit or to the elements of the crime charged. Rather, as
noted above, defendants entering nolo contendere pleas admit that the facts as
alleged, if proven, could support a conviction. Although a nolo contendere plea
clearly qualifies as a “conviction” under Section 8121(a)(14) of the EMS Act, the
plea itself does not establish the alleged facts so heavily relied upon by Department
officials in initially recommending revocation. Further, although the Hearing
Officer ultimately ruled that the information in the affidavit of probable cause should
not have been considered by the Department,18 it is clear from Ms. Hoffman’s, Dr.
Rhone’s, and Mr. Ferguson’s testimony that they relied heavily on those facts to
justify the filing of an OSC seeking revocation. See, e.g., C.R. at 070-71; 082-83.
Second, in its Final Determination, the Department affirmed the
revocation of Knelly’s certification based exclusively on the definition of the crime
of strangulation itself and the fact that the victim was Knelly’s 11-year-old son, of
whom Knelly had primary physical and legal custody at the time. Although the
conviction was not remote in time, the Department did not, as required by John’s
Vending and its progeny in this Court, establish a reasonable tie between Knelly’s
plea and his ability to continue to competently perform his duties as an EMT. The
18
This evidentiary ruling is not at issue in this appeal. We therefore, like the Department,
consider only whether the fact of Knelly’s nolo contendere plea to strangulation justifies
revocation of his EMT certification.
19
Department’s identification of purported risks with Knelly’s “character trait” is
entirely speculative and does not at all acknowledge that Knelly’s work environment
with vulnerable strangers is markedly different than a bitter custody dispute where
manufactured accusations are often the norm. And, more importantly, there is no
evidence that those purported risks have materialized even once on the job in the
past 26 years of Knelly’s career.
Third, the Department completely ignored several mitigating factors
that are undisputed in the record. The Department disregarded and mischaracterized,
as a “collateral attack” on his conviction, Knelly’s explanation that he and his son’s
mother were engaged in a bitter custody battle and that the allegations that gave rise
to the criminal charges were untrue and fabricated by his son at his mother’s
prompting. Knelly at no point challenged his conviction before the Department.
Rather, he argued before the Department, and argues again here, that he pleaded no
contest because he believed such a plea was in his and, more importantly, his son’s
best interest. He explained his understanding that he received a lenient sentence
chiefly because the district attorney was aware that the allegations had been
fabricated. Most tellingly, Knelly also confirmed that he currently has at least partial
custody of his son pursuant to an informal agreement with his son’s mother. There
is no meaningful discussion or weighing of these facts anywhere in the Department’s
Final Determination, which absence we find to be manifestly unreasonable.
We therefore conclude that the Department’s revocation of Knelly’s
EMT certification based on his nolo contendere plea was a manifest abuse of
discretion and unreasonable in these circumstances.
20
4. Knelly’s Failure to Report
With regard to Knelly’s failure to report his conviction as required by
Section 8113(i) of the EMS Act, the Department weighed both Ms. Hoffman’s and
Knelly’s testimony regarding the facility of using the Department’s website and
whether there was any indication in Knelly’s online account that he had, or had
attempted to, report his conviction. The Department concluded that Knelly “failed
in his attempt to register on the website” and failed to “follow through or to provide
the documents of his plea to the Department.” (Final Determination at 13; R.R. at
102a) (emphasis added). Although we will not re-weigh the testimony or make new
or different credibility determinations, we nevertheless note that, at most, Knelly
simply failed in his attempts to register his conviction and did not follow up with the
Department to provide documentation of it. There is no evidence that he attempted
to hide his conviction or subvert the Department’s reporting requirements. Knelly
testified openly that he knew about the reporting requirement (with the mistaken
belief that he had only 72 hours to report), see R.R. at 041a-42a, and intended to
report immediately. The Department heard and presented no evidence to the
contrary, and its conclusion that Knelly failed to report is based exclusively on a
missing tab in Knelly’s online account. Moreover, the Department’s Final
Determination expressly suggests that it credited Knelly’s testimony at least to the
extent that he stated he attempted to report. Under those circumstances, we conclude
that Knelly’s violation of Section 8113(i) cannot itself justify the complete
deprivation of Knelly’s ability to pursue this lawful occupation. The Department
committed a manifestly unreasonable exercise of its judgment in concluding to the
contrary.
21
III. CONCLUSION
We acknowledge that our review here is limited to determining whether
the Department’s decision was made in accordance with the law and not whether it
was reasonable. Slawek, 586 A.2d at 365. We further acknowledge that, although
we are duty-bound to correct abuses of discretion, “we will not, absent a manifestly
unreasonable exercise of judgment, substitute our discretion for that of [the
Department], an administrative body endowed with expertise in matters subject to
its jurisdiction.” Burnworth, 589 A.2d at 296. Nevertheless, we are constrained here
to conclude that the Department manifestly abused its discretion by imposing the
most extreme sanction of revocation, which should be reserved for the worst
offenders. Ake, 974 A.2d at 522.
In doing so, we in no wise downplay the seriousness of the crime to
which Knelly pleaded nolo contendere, the criminal sanction for which already has
been imposed by the court of common pleas.19 Rather, because the Department is
19
Nor do we, as the Dissent suggests, reweigh the evidence, make our own credibility
determinations, or fail to afford the Department the deference commensurate with our standard of
review. The Dissent notes, without citation to the record, that the Department rejected Knelly’s
testimony that he did not commit the acts underlying his plea and only entered the plea to protect
his son from a trial. However, and to be precise, the Department specifically avoided relying on
any facts underlying Knelly’s plea and did not base its determination on any specific rejection of
Knelly’s testimony in that regard. Rather, the Department based its determination strictly on the
fact of Knelly’s nolo contendere plea, the involvement of Knelly’s son, and Knelly’s failed
attempts to report the conviction. Our disposition is not based in any sense on our own finding
that Knelly did not commit the acts underlying his criminal charges. We have assumed throughout
our analysis that (1) Knelly pleaded nolo contendere to those charges, that the charges involve his
minor son, and that such a plea supports a sanction under the EMS Act; and (2) although Knelly
testified that he unsuccessfully attempted to report his conviction through the Department’s online
system, the Department nevertheless had no record of the conviction as required by the EMS Act.
Our disposition is that such facts do not support the most severe sanction of revocation in these
circumstances because the Department ignored mitigating evidence and committed legal error in
determining the degree of Knelly’s sanction.
22
charged with both (1) imposing sanctions that further its legitimate interest in
ensuring that EMTs provide safe, competent, and efficient care to Pennsylvania’s
public, and (2) considering all mitigating circumstances presented, including the
nature of Knelly’s nolo contendere plea, a lesser and proportionate professional
sanction is warranted here. We accordingly vacate the Department’s Final
Determination and remand for further consideration consistent with this opinion.20
__________________________________
PATRICIA A. McCULLOUGH, Judge
The Department, of course, is free to weigh the evidence and make credibility
determinations, but it may not arbitrarily ignore and fail to consider mitigating evidence. Here,
the Department did not consider that Knelly (1) received a very lenient probationary sentence; (2)
currently has at least partial custody of his son; (3) is required as part of his sentence to maintain
gainful employment; (4) had no incidents involving violence or aggression to patients prior to or
since this conviction; and (5) testified at length regarding how he unsuccessfully attempted to
report his conviction (which testimony the Department appears to have accepted). As we have
shown, our case law mandates that the Department meaningfully consider mitigating evidence and
make a clear and reasonable connection between the licensee’s offending conduct and the
professional sanction imposed, which here must serve to further the Commonwealth’s interest in
licensing effective and safe EMTs. The Department made no such connection here and, in our
judgment, ignored and disregarded substantial mitigating evidence to protect against what are, at
best, very speculative concerns. In short, the Department, which has the burden of proof, did not
make its case to justify this particular, and very severe, sanction. It is on that basis, and that basis
alone, that we vacate and remand to the Board for further consideration.
20
Although a single judge of this Court denied Knelly’s Application For Stay on the ground
that Knelly did not, at that state of the proceedings, make a strong enough showing of his likelihood
of success on the merits, that judge also acknowledged that a panel of this Court might, and here
does, conclude to the contrary. See Knelly v. Pennsylvania Department of Health (Pa. Cmwlth.,
No. 1088 C.D. 2022, filed December 1, 2022) (McCullough, J.) (single-judge op.), slip op. at 6.
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eugene Knelly, :
Petitioner :
: No. 1088 C.D. 2022
v. :
:
Pennsylvania Department of Health, :
Respondent :
ORDER
AND NOW, this 13th day of December, 2023, the September 9, 2022
Final Agency Determination and Order of the Department of Health, Bureau of
Emergency Medical Services (Department) is hereby VACATED, and this matter is
REMANDED to the Department for further consideration consistent with the
foregoing opinion.
Jurisdiction relinquished.
__________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eugene Knelly, :
Petitioner :
:
v. : No. 1088 C.D. 2022
:
Pennsylvania Department of Health, :
Respondent : Submitted: May 5, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
DISSENTING OPINION
BY JUDGE CEISLER FILED: December 13, 2023
I respectfully dissent. I believe that in vacating the Final Agency
Determination and Order (Final Determination) of the Department of Health, Bureau
of Emergency Medical Services (Department) and remanding for further
consideration, the Majority has improperly reweighed the evidence and made its own
credibility determinations, which this Court is not permitted to do.
Notably, the hearing officer specifically rejected Eugene Knelly’s testimony
that the accusations against him were false, as well as his reasons for entering a plea
of nolo contendere to second-degree felony strangulation. It seems just as likely that
the District Attorney in the criminal case accepted a nolo contendere plea because
Knelly committed the offense charged, but a conviction might be difficult to obtain.
Section 8121(a)(14) of the Emergency Medical Services System Act (EMS Act), 35
Pa. C.S. § 8121(a)(14), specifically defines a felony “conviction” as including nolo
contendere pleas. Therefore, the EMS Act required that Knelly report his conviction
to the Department, not that he merely attempt to report it.
Since we will never know if Knelly actually committed the underlying felony
charge to which he pled, I believe it is prudent to err on the side of caution due to
the severity of the allegations. We must also give deference to the hearing officer,
who actually observed the witnesses’ testimony and made credibility determinations
based on those observations. It would not be in the public’s best interest to allow an
emergency medical technician (EMT) to remain certified and continue to dispense
lifesaving care in extremely stressful situations after he has been convicted of
physically harming his own minor child.
In this situation, I am uncomfortable reweighing the evidence and substituting
our credibility determinations for those of the hearing officer. Because I do not
believe the Department abused its discretion in revoking Knelly’s EMT certification
under the circumstances, I would affirm the Department’s Final Determination.
__________________________________
ELLEN CEISLER, Judge
EC - 2