J.C. Collaso v. BPOA, State Board of Social Workers, Marriage and Family Therapists and Professional Counselors ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jane C. Collaso, :
Petitioner :
:
v. : No. 1118 C.D. 2015
: Submitted: February 19, 2016
Bureau of Professional and :
Occupational Affairs, State :
Board of Social Workers, :
Marriage and Family Therapists :
and Professional Counselors, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: July 1, 2016
Petitioner Jane C. Collaso (Collaso) petitions for review of an order of
the Bureau of Professional and Occupational Affairs, State Board of Social
Workers, Marriage and Family Therapists and Professional Counselors (Board),
revoking Collaso’s license to practice clinical social work. We affirm the Board’s
order.
By way of background, on July 13, 2010, Collaso pleaded guilty to
two counts of simple assault, which is a grade 2 misdemeanor. The criminal
charges against Collaso arose as a consequence of Collaso’s assault of a former
client (K) and the client’s husband (T). The criminal complaint alleged that
Collaso had engaged in an affair with the former client and that she went to the
former client’s home, where she attacked K and T. According to the Board’s
brief,1 on May 3, 2011, as a result of the convictions, the Board, in a separate
proceeding, issued an Immediate Temporary Suspension order (ITS). Ultimately,
Collaso and the Board agreed to a resolution of Collaso’s challenge to the ITS,
resulting in a 180-day temporary suspension of Collaso’s license.
During that period of temporary suspension, on July 12, 2011, the
Pennsylvania Department of State (Department) issued an Order Compelling the
Mental and Physical Examination of Collaso. Although Collaso attended two
examinations, the examiner concluded that he could not render an opinion
regarding Collaso’s mental or physical condition, because Collaso had not
provided all requested records and responses to direct questions. Based upon the
examiner’s conclusion, on September 13, 2011, the Department filed a motion to
deem facts admitted and for entry of default. The Department’s motion also
sought an order of the Board suspending Collaso’s license until such time that she
complied with the July 12, 2011 order to submit to the mental and physical
examination. On October 20, 2011, the Board issued a final memorandum order:
(1) granting the Department’s motion to the extent it sought to deem facts admitted
and entry of default; but (2) dismissing without prejudice the Department’s motion
to the extent it sought to compel Collaso to submit to a mental and physical
examination. (R.R. at 51a.)
The Board’s October 20, 2011 order deemed facts admitted indicating
that Collaso failed to comply with the July 2011 order directing her to submit to an
evaluation. Included in those facts deemed admitted were: (1) Collaso failed to
1
Respondent’s Brief at 10 n.14.
2
provide the examiner with her medical records; (2) Collaso failed to provide the
examiner with a copy of her curriculum vitae in advance of the examination;
(3) during the examiner’s interview of Collaso, she refused to discuss the incident
involving her former patient and the patient’s husband; and (4) upon the second
examination, Collaso again refused to provide the examiner with her medical
records and refused to discuss the triggering patient incident. The Board accepted
as a fact that, because Collaso did not cooperate with the examinations, the
examiner was unable to provide an opinion regarding Collaso’s emotional state or
psychiatric condition. (R.R. at 49a-50a.)
Despite those findings and the Board’s conclusion that Collaso was in
default for failing to submit to the examination, the Board elected not to exercise
its authority to suspend indefinitely Collaso’s license until she complied with the
provisions of the initial examination order. (R.R. at 50a-51a.) The Board reasoned
that the Department’s request for an order compelling Collaso to submit to another
exam did not specify whether the Respondent was seeking an examination
regarding potential drug addiction or for mental incompetence. On
November 1, 2011, the Board issued an order reinstating Collaso’s license.
Although Collaso’s participation in/or submissions to the mental and physical
examinations are pertinent to the petition for review, the proceedings involving the
ITS are not at issue in this matter.
On November 11, 2011, a prosecutor with the Department issued a
notice to Collaso advising her that the Department had initiated formal disciplinary
proceedings against her and informing her of her rights to respond to and defend
against the proceedings. The Department initiated the proceedings in an order
directed to Collaso to show cause (Order to Show Cause) why the Board should
3
not impose a disciplinary sanction against her based upon her actions leading up to
her two criminal convictions. The Order to Show Cause identified Collaso’s
alleged violations of the Social Workers, Marriage and Family Therapists and
Professional Counselors Act (Social Workers Act)2 and the Criminal History
Records Information Act (CHRIA)3 as grounds for the potential imposition of
sanctions.
The Order to Show Cause referred to the criminal complaint upon
which Collaso’s two criminal convictions were based, which, as indicated above,
described Collaso’s forcible entry in the home of K and T, her actions that night,
and her guilty pleas to two counts of simple assault. The Department claimed that
it was empowered to suspend, revoke, or restrict Collaso’s license under the
following:
 Section 11(a)(1) of the Social Workers Act,4 63 P.S. § 1911(a)(1), based
upon Collaso’s misdemeanor assault convictions. (Count One)
 Section 9124(c)(2) of the CHRIA,5 18 Pa. C.S. § 9124(c)(2), based upon
Collaso’s guilty plea to the two assault charges. (Count Two)
 Section 11(a)(2) of the Social Workers Act,6 63 P.S. § 1911(a)(2), for
alleged violations of:
2
Act of July 9, 1987, P.L. 220, as amended, 63 P.S. §§ 1901-1922.
3
Act of July 16, 1979, P.L. 116, as amended, 18 Pa. C.S. §§ 9101-9183.
4
Section 11(a)(1) of the Social Workers Act provides, in pertinent part, that “[t]he board
may . . . suspend, revoke, limit or restrict a license . . . for any of the following: (1) Being
convicted of a felony or a crime of moral turpitude in any state . . . court.”
5
Section 9124(c)(2) of the CHRIA provides, in pertinent part, that “[b]oards,
commissions or departments of the Commonwealth authorized to license, certify, register or
permit the practice of . . . professions may . . . suspend or revoke any license . . . ‘[w]here the
applicant has been convicted of a misdemeanor which relates to the . . . profession for which the
license . . . is sought.’”
4
(a) Section 1.01 of the National Association of Social
Workers (NASW) Code of Ethics (Code), which
provides that social workers have a primary
responsibility to promote the wellbeing of clients.
(Count Three)
(b) Section 1.06(c) of the NASW Code, which prohibits
social workers from engaging in dual relationships with
clients or former clients when such a relationship poses a
risk of exploitation or harm to a client. (Count Four)
(c) Section 1.10 of the NASW Code, which prohibits
social workers from engaging in physical contact with
clients when there is a possibility of psychological harm
to the client as a result of such contact. (Count Five)
(d) Section 4.05(a) of the NASW Code, which prohibits
social workers from allowing personal problems and
psychosocial distress, inter alia, to interfere with
professional judgments and performance or to jeopardize
the best interests of people to whom they have a duty of
professional responsibility. (Count Six)7
 Section 11(a)(7) of the Social Workers Act,8 63 P.S. § 1911(a)(7), for failure
to obey the Board’s order directing her to submit to a mental and physical
examination and to submit medical and mental health records to the
examining physician. (Count Seven).
(continued…)
6
Section 11(a)(2) of the Social Workers Act provides, in pertinent part, that “[t]he board
may refuse, suspend, revoke . . . or restrict a license . . . for . . . [b]eing found guilty of immoral
or unprofessional conduct.” Section 11(a)(2) defines the term “unprofessional conduct” to
“include any departure from or failure to conform to the standards of acceptable and prevailing
practice.” In proceeding under this provision, the Department need not establish that a licensee
caused actual injury to a client. Id.
7
Count Six of the Rule to Show Cause was mistakenly numbered as Count Five.
8
Section 11(a)(7) of the Social Workers Act provides that the Board may revoke or
suspend a license for “violat[ion of] an order of the board previously entered in a disciplinary
proceeding.”
5
The Department also asserted that it was empowered to impose a civil penalty for
any of these alleged violations pursuant to Section 17(b) of the Social Workers
Act, 63 P.S. § 1917(b), or Section 5(b)(4) of the law commonly referred to as the
Licensing Boards and Commissions Law (Act 48),9 63 P.S. § 2205(b)(4), and that
it had the power to impose costs of investigation upon Collaso under
Section 5(b)(5) of Act 48, 63 P.S. § 2205(b)(5).
On February 12, 2013, the Board conducted a formal hearing on the
Order to Show Cause. During the hearing, the Department presented the testimony
of one of the officers called to the house where Collaso assaulted K and T. The
Department also presented the testimony of Vincent J. Gioe, Ph.D., a licensed
clinical psychologist and licensed marriage and family therapist, who the Board
qualified as an expert regarding the ethical standards set forth in the NASW.
Collaso testified on her own behalf. She refuted the description of the
conduct that gave rise to the criminal charges. Collaso testified that K came to
counseling on her own, without her husband; that K called her the night of the
altercation; that she, Collaso, went to the home and entered without conflict; that
she did not strike T or K; that although K had been her client, a personal
relationship did not arise until after she referred K to other therapists; and that she
had not engaged in a sexual relationship, but rather that “feelings” existed between
K and herself. The Board concluded that Collaso’s attempt to re-characterize the
scenario that was described in the criminal complaint constituted an impermissible
collateral attack on her convictions.
9
Act of July 2, 1993, P.L. 345, as amended, 63 P.S. §§ 2201-2207.
6
On May 8, 2015, the Board issued a final adjudication and order. The
Board rendered the following pertinent factual findings:
8. [Collaso] pled guilty to two (2) counts of Simple
Assault, Grade two misdemeanor offenses, in violation of
18 Pa. C.S. § 2701(a)(1).
10. The incident that resulted in [Collaso]’s guilty plea
involved [Collaso] forcibly entering the home of a former
client/patient, K, and the client’s husband, T, and
physically assaulting K and T causing injury.
13. As a result of [an altercation between Collaso and K
and T at K and T’s home] K’s face was red and irritated
with small scratches on her lips. T also had a scratch by
his left eye.
14. T and K had gone to [Collaso] for marital counseling.
After one session together, [Collaso] asked to see K
alone.
15. [Collaso] and K began seeing each other outside of
counseling and began a personal/sexual relationship.
16. After two or three counseling sessions with K alone,
[Collaso] referred her to other therapists for therapy.
17. K ended the relationship with [Collaso] when she
deciding to work on her marriage.
20. The mental and physical examination was conducted
on August 7, 2011.
22. [Collaso] refused to answer questions from Dr.
Voskanian relative to the criminal complaint of
February 15, 2010.
23. Because [Collaso] refused to comply fully with the
Board’s order, Dr. Voskanian was unable to formulate an
opinion as to [Collaso]’s emotional state or psychiatric
condition.
24. After being informed of Dr. Voskanian’s inability to
render an opinion on her fitness to practice social work,
[Collaso] attended a re-examination with Dr. Voskanian
on September 2, 2011.
25. [Collaso] again failed to provide Dr. Voskanian with
her medical records as required by the Board’s Order.
7
26. During the September 2, 2011, examination, [Collaso]
again refused to discuss the incident which led to the
Criminal Complaint of February 15, 2010.
27. Because [Collaso] refused to comply fully with the
Board’s Order, Dr. Voskanian was unable to offer an
opinion as to [Collaso]’s emotional state or psychiatric
condition.
The Board concluded that Collaso’s guilty pleas established: (1) the commission
of crimes of moral turpitude for the purpose of Section 11(a)(1) of the Social
Workers Act; (2) the commission of crimes relating to Collaso’s profession for the
purpose of Section 9124(c)(2) of the CHRIA; (3) violations of Section 11(a)(2) of
the Social Workers Act based upon the provisions of the NASW Code cited in the
Order to Show Cause; and (4) Collaso’s violation of Section 11(a)(7) of the Social
Workers Act, based upon her failure to submit as ordered to a physical and mental
examination.
Collaso, pro se, petitions for review of the Board’s order,10 raising the
following issues in her brief:11 (1) Whether substantial evidence supports the
Board’s findings pertinent to the legal question of whether the Board erred with
regard to its conclusion that Collaso engaged in unprofessional or immoral conduct
where, she claims: (a) the evidence does not indicate that she failed to promote a
client’s well-being; (b) the Board erroneously referred to other initial charges that
10
Our review in this matter is limited to considering whether necessary factual findings
are supported by substantial evidence, and whether the Board erred as a matter of law, and, if
properly raised, whether any constitutional rights were violated. 2 Pa. C.S. § 704.
11
Collaso raises the following questions in her statement of questions involved:
(1) whether the Board issued a well-reasoned decision revoking Collaso’s license; and
(2) whether the Board erred in its assessment of the evidence, such that the sanction the Board
imposed was harsh. As described below, Collaso raises more specific questions in the discussion
section of her brief, and we glean the pertinent issues therefrom.
8
the prosecutor eventually dropped; and (c) the Board did not consider whether the
assaults were remote in time to her treatment of K; (2) whether the Board’s notice
failed to provide sufficient notice of the nature of the charges and, thereby, violated
Collaso’s due process rights; (3) whether the Board erred in concluding that the
grade two misdemeanor simple assault convictions constitute crimes of dishonesty
or moral turpitude; (4) whether the sanction the Board imposed is
unconstitutionally harsh; and (5) whether collateral estoppel applies to preclude the
Department’s prosecution as set forth in the Order to Show Cause based upon the
earlier temporary license suspension proceeding. Because Collaso sometimes
addresses these arguments in a somewhat random manner and because some of
these arguments are addressed only to certain of the Counts in the Order to Show
Cause, we will first address Collaso’s arguments regarding specific Counts and
address common arguments thereafter.
COUNT I
Crime of Moral Turpitude
With regard to Count I, which asserts that Collaso’s license is subject
to revocation based upon conviction for a crime of moral turpitude under
Section 11(a)(1) of the Social Workers Act, the Board considered whether the
misdemeanor simple assault convictions constituted crimes of moral turpitude.
Citing Foose v. State Board of Vehicle Manufacturers, Dealers and
Salespersons, 578 A.2d 1355 (Pa. Cmwlth. 1990), the Board opined that this Court
defined crimes of moral turpitude as “anything done knowingly contrary to justice
or good morals,” Foose, 578 A.2d at 1357, and that Collaso’s assault convictions
fell within that definition because assaults “are inconsistent with the definition of
good moral character [and they] involve a reprehensible state of mind.” (Board
9
Opinion at 15.) The Board wrote that “the reprehensible state of mind” at issue
with the misdemeanors of which Collaso was convicted “is the knowing or
reckless attempt to cause or causing bodily injury to another, or engaging in
conduct which constitutes a physical menace intended to put another in fear of
serious bodily injury.” Id. The Board distinguished third-degree misdemeanor
simple assault, which involves conduct that may be lacking in a “reprehensible
state of mind” that could arise in a situation such as “a fight or flight scuffle by
mutual consent.” Id. The Board was persuaded that Collaso’s intentional
appearance at the home of K and T and her assault constituted a crime of moral
turpitude.
We conclude that the Board did not err in concluding that Collaso’s
two assault convictions constitute crimes of moral turpitude for the purpose of
Section 11(a)(1) of the Social Workers Act. In Bowalick v. Department of
Education, 840 A.2d 519 (Pa. Cmwlth. 2004), this Court, in considering whether
the Pennsylvania Department of Education had sufficient grounds to revoke a
teaching certificate, addressed the question of whether the crime of simple assault
always constitutes a crime of moral turpitude. In Bowalick, a teacher was arrested,
convicted, and sentenced on a simple assault charge involving his wife. The
Department of Education sent him a notification that it was seeking to revoke his
certificate based upon its belief that simple assault is a crime of moral turpitude.
We noted in Bowalick that the governing regulations in that case provided that the
only relevant inquiry when questioning whether a crime is one of moral turpitude
relates to the particular elements of the crime committed, not to the facts
underlying the particular commission of the crime. The regulatory provision at
issue, 22 Pa. Code § 237.9(a), provided guidance, defining “moral turpitude” as
10
including “reckless conduct causing bodily injury to another.” Although the
definition in the regulation also included “conduct done knowingly contrary to
justice, honesty or good morals,” we opined that the term “moral turpitude” as
defined in the regulation, as well as the definitions arising in other statutory
contexts
requires a reprehensible state of mind or mens rea. Thus,
it may be an “act of baseness, vileness, or depravity,
contrary to the accepted customary rule of right and duty
between two human beings.” Such an act requires at
least knowledge of private impropriety or the potential
for social disruption. Also an act of moral turpitude may
consist of intentional, knowing or reckless conduct.
Bowalick, 840 A.2d at 523-24 (internal citations omitted).
The Court considered the elements of the crime “simple assault,” but
noted that the crime of simple assault “can lack a reprehensible state of mind when
arising in the context of a fight or scuffle by mutual consent.” Id. at 524. The
Court concluded that, because the possibility existed that the teacher and his wife
entered into the altercation under such “mutual consent,” the Professional
Standards and Practices Commission,12 was required to conduct a hearing to
determine whether the teacher had pleaded guilty to facts involving moral
turpitude, i.e., facts indicating that the “mutual consent” type of assault was not at
issue. That rationale is consistent with this Court’s decisions holding that the
question of whether a particular crime is one involving moral turpitude depends on
12
The Professional Standards and Practices Commission (Commission) was established
by the Educator Discipline Act, Act of December 12, 1973, P.L. 397, as amended, 24 P.S.
§§ 2070.1-.18c, which authorizes the Commission, in part, to direct the Department of Education
to discipline any educator in accordance with the act, including revoking an educator’s teaching
certificate.
11
the elements of the crime rather than an independent examination of the details of
the behavior underlying the crime. See Startzel v. Dep’t of Educ., 562 A.2d 1005,
1007 (Pa. Cmwlth. 1989), appeal denied, 574 A.2d 76 (Pa. 1990). In this matter,
the convictions were graded as misdemeanors of the second degree. Assaults that
arise from a fight involving mutual consent are graded lower than second degree
misdemeanors. 18 Pa. C.S. § 2701. It appears, therefore, that Collaso’s
convictions, which were graded more severely than those that might arise from
“mutual consent,” fall within this Court’s holdings regarding crimes of moral
turpitude. Consequently, we conclude that the Board did not err in concluding that
Collaso’s simple assault convictions are for crimes of moral turpitude.
Sufficiency of Notice
Collaso asserts that the Board’s notice was insufficient and violated
her due process rights. This argument appears to relate to the charges contained in
Count One. In her brief, Collaso asserts that the Department charged her vaguely
with “lacking good moral character.” (Petitioner’s Brief at 19.) Collaso, however,
does not reference the particular charge in which the Department used the phrase
“moral character.” Our review of the Order to Show Cause, however, indicates
that the Department alleged that Collaso’s convictions constituted crimes of moral
turpitude, which under Section 11(a) of the Social Workers Act provides grounds
for revocation of a license. Thus, the precise challenge Collaso is seeking to raise
is unclear, because the charges do not use the phrase “moral character.” Even if
Collaso had more clearly articulated the question, she did not raise before the
Board a due process challenge to the sufficiency of the notice. Thus, we believe
that this issue has been waived. McGrath v. State Bd. of Dentistry, 632 A.2d 1027,
12
1031 (Pa. Cmwlth. 1993) (constitutional challenge to agency proceedings generally
must be timely raised and preserved for purposes of appellate review).
COUNTS THREE AND FIVE
Violations of NASW Code Sections 1.01 and 1.10
Collaso contends there is a lack of evidence to support the Board’s
findings regarding the alleged violations of Sections 1.01 and 1.10 of the NASW
Code. Section 1.01 provides that a social worker’s primary responsibility is the
well-being of a client. Section 1.10 provides that social workers should not engage
in physical contact with a client if such contact has the potential to cause
psychological harm to a client. Collaso claims that there is insufficient evidence to
support a finding that she failed to promote the well-being of a client. Collaso also
asserts that the Board improperly referred to certain charges (presumably in the
criminal complaint) against her that were eventually dropped. Collaso does not
specify which particular factual findings are not supported by evidence. It would
appear that Collaso intended to argue that the findings do not support the Board’s
legal conclusions that Collaso violated the NASW Code-based charges against her.
Collaso has presented no legal arguments or provided any pertinent legal citations
in support of her claim that the factual findings do not support the Board’s legal
conclusions. Accordingly, we conclude that Collaso has waived this issue by
failing to brief the issue adequately.13 In re: Condemnation of Land for S.E. Cent.
13
Collaso follows this argument with a reference to Blake v. State Board of Funeral
Directors, 770 A.2d 380 (Pa. Cmwlth.), appeal denied, 786 A.2d 990 (Pa. 2001), but Collaso has
not explained how our holding in that decision bears upon this matter. Additionally, Collaso
asserts that a reasonable mind could view the evidence in this case as sufficient to support a
finding that she is capable of engaging in her profession. Without any sufficient argument in
(Footnote continued on next page…)
13
Bus. Dist. Redevelopment Area #1: (405 Madison St., City of Chester), 946 A.2d
1154, 1156 (Pa. Cmwlth.), appeal denied, 968 A.2d 233 (Pa. 2008), cert. denied,
556 U.S. 1208 (2009) (“[a]rguments not properly developed in a brief will be
deemed waived”).
COUNT SEVEN
Collaso also asserts that the Board erred in determining that she failed
to provide requested medical documentation to the examiner, arguing that the
Board failed to consider that she attended two examinations, that she sat in an
examination room for four hours, and that she orally provided information to the
examiner regarding her history and credentials. (Petitioner’s Brief at 8-10.)
Collaso further relies upon the fact that the Board, in its October 20, 2011 order
resolving the Department’s motion to the extent it sought to deem facts admitted
and for a default judgment, concluded that it did not “believe that the facts as
alleged in the [motion] rise to the level of establishing that a medical condition
may exist that would render [Collaso] unable to practice with reasonable skill and
safety.” (R.R. at 50a.) As we noted above, when the Board expressed that
opinion, it did so based upon its view that the portion of the motion seeking to
compel an indefinite suspension of Collaso’s license due to her failure to comply
was insufficient, because that motion did not specifically indicate whether the
examination would address potential drug addiction or mental incompetence.
Although the Board’s order appears inconsistent in some respects, the Board did
(continued…)
support of her imprecise challenge to factual findings and legal conclusions, we are bound by the
Board’s factual findings.
14
affirmatively find that Collaso failed to comply with the initial July 2011 order,
directing her to submit her medical records to the examiner.
Although Collaso does assert that the Board’s comment supports her
claim that she complied with the initial July 2011 order to submit to an
examination, the thrust of Collaso’s argument is that she complied with the
direction in part, by attending the examinations. Collaso, however, does not
contest that she failed to provide the examiner with her medical records as required
by the July 2011 order. The July 2011 order also directed Collaso to answer
questions the examiner posed to her. (R.R. at 34a.) Collaso makes no claim that
she did answer all of the examiner’s questions. Thus, the record appears to contain
substantial evidence that supports the Board’s findings that Collaso did not comply
with the July 2011 order to submit to a mental and physical examination.
Based upon the Board’s findings regarding Collaso’s noncompliance,
we conclude that the factual findings support the Board’s conclusion that Collaso
failed to comply with the Board’s order, because her refusal to provide the records
rendered the examiner’s task of producing an accurate evaluation impossible.
REMAINING ARGUMENTS
Abuse of Discretion in Revoking Collaso’s License
Collaso asserts generally throughout her brief that the Board abused
its discretion in imposing the sanction of license revocation. Collaso contends that
the penalty is too harsh for the conduct at issue. As the Department notes,
however, the Board may impose sanctions to the extent authorized by the
applicable law. Slawek v. State Bd. of Med. Educ. and Licensure, 586 A.2d 362,
365 (Pa. 1991). Collaso, relying upon our decision in Ake v. State Board of
Accountancy, 974 A.2d 514 (Pa. Cmwlth.), appeal denied, 987 A.2d 162 (Pa.
15
2009), argues that the Board’s revocation constitutes an abuse of discretion. In
Ake, we concluded that the Board of Accountancy abused its discretion in revoking
a certified public accountant’s license, based upon a conviction for harassment in a
different state. We reversed the Board’s sanction, concluding “that where 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.” Ake, 974 A.2d at 520.
Rather, licensing agencies must consider “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.” Id. We conclude that Ake is
distinguishable from this matter, because the Board correctly determined that
Collaso’s convictions reflected upon her ability to discharge the responsibilities of
a social worker and the timing of convictions, as compared to our holding in Ake,
is not remote to the Board’s revocation action.
Collateral Estoppel
Collaso also argues that the Board was collaterally estopped from
considering the charges in the Order to Show Cause based upon the earlier
proceeding involving the ITS. The Department contends that Collaso waived this
issue by failing to present it in her petition for review. Our Supreme Court
amended Pa. R.A.P. 1513(d) to provide that, when a party fails to raise an issue in
a petition for review, but presents sufficient argument in a brief to enable this
Court to address the issue, such an omission is not grounds to find waiver.
Winchilla v. Workers’ Comp. Appeal Bd. (Nexstar Broad.), 126 A.3d 364, 368 (Pa.
Cmwlth.), appeal denied, 130 A.3d 1293 (Pa. 2015). The Department is correct,
however, in relying upon waiver, because it appears that Collaso did not raise the
16
issue before the Board. Pa. R.A.P. 1551(a); Laundry Owners Mut. Liab. Ins.
Assn. v. Ins. Comm’r of Pennsylvania, 91 A.3d 747, 753 (Pa. Cmwlth. 2014) (issue
waived where party fails to raise it before governmental unit). Therefore, we agree
with the Department that Collaso waived this issue.
Accordingly, we conclude that Collaso has not established any
grounds for reversal of the Board’s decision, and, therefore, we will affirm the
Board’s order.14
P. KEVIN BROBSON, Judge
14
Collaso mentions CHRIA, which was the basis of Count Two of the Order to Show
Cause, only in passing. Although we note the Court’s recent holdings that suggest that CHRIA
may only be applicable in the context of a licensee’s criminal conviction and professional
disciplinary proceedings where a licensing board’s statutory provisions are silent as to the
authority of a board to impose a sanction for a criminal conviction, see Garner v. State Board of
Optometry, 97 A.3d 437 (Pa. Cmwlth. 2014), appeal denied, 112 A.3d 655 (Pa. 2015), Collaso
has not adequately challenged the Board’s conclusion that CHRIA provides sufficient legal
grounds independently to impose a sanction based upon her convictions. Consequently, we will
not proceed to consider whether the Board erred in concluding it could do so.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jane C. Collaso, :
Petitioner :
:
v. : No. 1118 C.D. 2015
:
Bureau of Professional and :
Occupational Affairs, State :
Board of Social Workers, :
Marriage and Family Therapists :
and Professional Counselors, :
Respondent :
ORDER
AND NOW, this 1st day of July, 2016, the order of the Bureau of
Professional and Occupational Affairs, State Board of Social Workers, Marriage
and Family Therapists and Professional Counselors is AFFIRMED.
P. KEVIN BROBSON, Judge