A. Turay, F.D. v. BPOA, State Board of Funeral Directors ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antoine Turay, F.D., :
: No. 924 C.D. 2016
Petitioner : Submitted: October 28, 2016
:
v. :
:
Bureau of Professional and :
Occupational Affairs, State :
Board of Funeral Directors, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: March 28, 2017
Antoine Turay, F.D. (Petitioner) petitions for review from an order of
the Bureau of Professional and Occupational Affairs, State Board of Funeral
Directors (Board), dated May 12, 2016, revoking his funeral director license under
the Funeral Director Law (Law)1 and fining him $10,000.00 under Section 5(b)(4)
of the statute commonly referred to as the Licensing Boards and Commissions Law
(Act 48),2 63 P.S. §2205(b)(4). We affirm.
1
Act of January 14, 1952, P.L. 1898 (1951), as amended; 63 P.S. §§479.1-479.22.
2
Act of July 2, 1993, P.L. 345, as amended, 63 P.S. §§2201-2207.
At all times pertinent in this case, Petitioner held a license to practice
as a funeral director in the Commonwealth of Pennsylvania and was the sole
proprietor of Turay Memorial Chapel. Board Findings of Fact (F.F.) Nos. 1, 3, 10.
In 2014, Petitioner was charged with various crimes based on
allegations that, during the years 2009 through 2013 he, without authority:
accessed the bank accounts of an 89-year-old woman with cognitive impairment;
added himself to her accounts; prepared checks in her name for his personal use;
transferred money into his own personal accounts; transferred her money into an
account for Turay Memorial Chapel; and transferred title to the victim’s home to
himself. In total, Petitioner was charged with stealing more than $300,000.00 from
the victim. F.F. Nos. 7-9, 11, 12.
On or about June 11, 2015, Petitioner pled guilty in the Court of
Common Pleas of Philadelphia County, at CP-51-CR-0009115-2014, to the
following first degree misdemeanors: (1) theft by unlawful taking–movable
property;3 (2) theft by deception–failure to correct;4 (3) theft by failure to make
required disposition of funds;5 and (4) tampering with records or identification–
writing.6 F.F. No. 5.
On October 6, 2015, the Commonwealth of Pennsylvania
(Commonwealth) filed a one-count Order to Show Cause, alleging that the Board
was authorized to discipline Petitioner. On November 12, 2015, Jack McMahon,
3
18 Pa. C.S. §3921(a).
4
18 Pa. C.S. §3922(a)(3).
5
18 Pa. C.S. §3927(a).
6
18 Pa. C.S. §4104(a).
2
Esquire, entered his appearance on behalf of Petitioner, which triggered all
subsequent notices and pleadings regarding Petitioner’s case to be sent to counsel
instead of Petitioner. Petitioner, by his counsel, filed an Answer and New Matter
and the Board scheduled a formal hearing to be held on January 14, 2016;
Petitioner requested a continuance and the hearing was rescheduled for February
18, 2016. On January 19, 2016, the Board issued an order correcting the time of
the February 18 hearing from 11:00 p.m. to 11:00 a.m. All hearing notices were
served on Petitioner’s attorney. F.F. Nos. 15-20.
The hearing was held, as scheduled, on February 18, 2016; however
neither Petitioner nor his counsel appeared. The hearing was officially called to
order at 11:23 a.m. at which time the Commonwealth presented its case. Neither
Petitioner nor his attorney attempted to contact the Board either by mail, email or
phone to alert the Board that they would not be present for the hearing or to request
another continuance. F.F. Nos. 21-24.
The Board concluded that Petitioner was subject to disciplinary action
under Section 11(a)(3) of the Law based on his convictions for crimes involving
moral turpitude.7 Consequently, the Board revoked Petitioner’s funeral director
7
Section 11(a)(3) of the Law provides:
(a) The board, by majority vote thereof, may refuse to grant, refuse
to renew, suspend or revoke a license of any applicant or licensee,
whether originally granted under this act or under any prior act, for
the following reasons:
***
(3) The conviction of a crime involving moral turpitude, in this or
any other State or Federal court or pleading guilty or nolo
contendere to any such offense.
(Footnote continued on next page…)
3
license, effective June 13, 2016, and ordered Petitioner to cease and desist from
practice as a funeral director. The Board also levied a civil penalty of $10,000
under Act 48.8
On appeal to this Court,9 Petitioner argues that his due process rights
were violated because the Board denied him a continuance of his hearing and,
therefore, he was not granted a full and fair hearing on the revocation of his funeral
director license. Petitioner further asserts that he was denied the opportunity to
testify on his own behalf and present witnesses in support of his defense. We
disagree.
“There are two essential elements of due process in administrative
proceedings: notice and opportunity to be heard.” Kiehl v. Unemployment
Compensation Board of Review, 747 A.2d 954, 957 (Pa. Cmwlth. 1999) (citing
(continued…)
63 P.S. §479.11(a)(3).
8
As an alternative to the civil penalties authorized by Section 17(b) of the Law, 63 P.S.
§479.17(b), Section 5(b)(4) of Act 48 permits the Board to “levy a civil penalty of not more than
$10,000 per violation on any licensee . . . who violates any provision of the applicable licensing
act or board regulation.” 63 P.S. §2205(b)(4). The Board must choose between levying civil
penalties under the Law or Act 48; it may not impose penalties under both for the same violation.
Section 5(c) of Act 48, 63 P.S. §2205(c).
9
This Court's scope of review is limited to determining whether the Board committed
violations of an appellant’s constitutional rights, whether errors of law, or whether any necessary
findings of fact are supported by substantial evidence. Section 704 of the Administrative
Agency Law, 2 Pa. C.S. §704. As the ultimate finder of fact, the Board makes all credibility
determinations and this Court is bound by those determinations as well as the facts derived
therefrom. Department of Transportation, Bureau of Driver Licensing v. Boucher, 691 A.2d
450, 453 (Pa. 1997); Toms v. Bureau of Professional and Occupational Affairs, 800 A.2d 342,
347 (Pa. Cmwlth. 2002).
4
Jennings v. Unemployment Compensation Board of Review, 675 A.2d 810 (Pa.
Cmwlth. 1996)). Beyond the bare assertion that his due process rights were
violated, however, Petitioner fails to develop his argument as to how the Board
denied him either notice or an opportunity to be heard. “At the appellate level, a
party’s failure to include analysis and relevant authority results in waiver.”
Browne v. Department of Transportation, 843 A.2d 429, 435 (Pa. Cmwlth. 2004);
Pa. R.A.P. 2119. Consequently, Petitioner’s argument in this regard fails.
Substantively, we conclude that Petitioner’s appellate claims are also
without merit. Regarding the first element of due process, notice must reasonably
inform interested parties of the pending action as well as the information necessary
to allow either party to present objections. Wills v. State Board of Vehicle
Manufacturers, Dealers and Salespersons, 588 A.2d 572, 573 (Pa. Cmwlth. 1991).
Petitioner filed an Answer and New Matter in response to the Order to Show Cause
and requested a continuance of the original hearing, demonstrating his receipt of
both notices by counsel. The rescheduled hearing notice and time correction were
sent to the same address as those previously received notices. Petitioner does not
allege that he did not receive notice of the new hearing date.
Regarding the second element, a party who elects by his own actions
to fail to appear at his revocation hearing after receiving notice thereof cannot later
claim to have been denied due process. Gutman v. State Dental Council and
Examining Board, Bureau of Professional Affairs, 463 A.2d 114, 115 (Pa. Cmwlth.
1983). A hearing was held as scheduled on February 18, 2016, at which time
Petitioner could have testified on his own behalf or presented witnesses in support
of his defense. Neither Petitioner nor his attorney attended the hearing. He and his
counsel also failed to, at a minimum, alert the Board as to their inability to attend.
5
Petitioner offers no explanation for these failures. After careful review, it is clear
from the record that Petitioner had both notice and an opportunity to be heard.
Petitioner also argues that the Board abused its discretion in levying
an unduly harsh punishment by revoking his funeral director license. He
emphasizes the fact that he had no prior incidents of misconduct and otherwise
conducted himself in a reputable manner. Petitioner requests a remand for a full
hearing. Because Petitioner did not raise this argument in the Statement of
Questions Involved portion of his appellate brief he has waived this argument as
well. 10
Moreover, this argument is devoid of merit. Our Supreme Court long
ago established that:
[C]ourts will not review the actions of governmental
bodies or administrative tribunals involving acts of
discretion, in the absence of bad faith, fraud, capricious
action or abuse of power; they will not inquire into the
wisdom of such actions or into the details of the manner
adopted to carry them into execution.
***
That the court might have a different opinion or judgment
in regard to the action of the agency is not a sufficient
ground for interference; judicial discretion may not be
substituted for administrative discretion.
Blumenschein v. Housing Authority of Pittsburgh, 109 A.2d 331, 335 (Pa. 1954)
(emphasis in original). The Board determined that Petitioner’s convictions
10
“No question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.” Pa. R.A.P. 2116(a).
6
constituted a violation of Section 11(a)(3) of the Law. A careful review of the
record demonstrates that the Board’s findings are supported by substantial
evidence. As long as it is in accordance with the law, the Board’s penalty is
reasonable. Slawek v. State Board of Medical Education and Licensure, 586 A.2d
362, 365 (Pa. 1991). As a result, we conclude that the Board did not abuse its
discretion when it revoked Petitioner’s license for violations of the Law.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antoine Turay, F.D., :
: No. 924 C.D. 2016
Petitioner :
:
v. :
:
Bureau of Professional and :
Occupational Affairs, State :
Board of Funeral Directors, :
:
Respondent :
ORDER
AND NOW, this 28th day of March, 2017, order of the Bureau of
Professional and Occupational Affairs, State Board of Funeral Directors, dated
May 12, 2016, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge