S. McGrath v. BPOA, State Board of Nursing ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shannon McGrath, :
Appellant :
:
v. : No. 884 C.D. 2020
: Submitted: April 9, 2021
Bureau of Professional :
and Occupational Affairs, :
State Board of Nursing :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: August 10, 2021
Shannon McGrath (McGrath), pro se, appeals from an order of the Court of
Common Pleas of Dauphin County (trial court), which sustained the Bureau of
Professional and Occupational Affairs, State Board of Nursing’s (Nursing Board)
preliminary objection in the nature of a demurrer for improper service of a complaint
in civil action (Complaint) on the Nursing Board and the Attorney General1 and
dismissed her complaint with prejudice. McGrath contends that the trial court erred
because she effected proper service and the Nursing Board had withdrawn its
objection for improper service. For the following reasons, we reverse the trial
1
Pursuant to Section 8523(b) of the Judicial Code, 42 Pa. C.S. § 8523(b), McGrath was
required to serve the Complaint on the Office of Attorney General in addition to the Nursing Board.
court’s order and remand the matter for further proceedings, including consideration
of the remaining preliminary objections.
On November 21, 2019, McGrath filed the Complaint against the Nursing
Board, alleging that the Board erroneously interpreted The Professional Nursing
Law (Nursing Law)2 to require that a mandatory 10-year suspension of her
professional nursing license be automatically imposed due to her 2013 felony drug
conviction under The Controlled Substance, Drug, Device and Cosmetic Act.3
McGrath averred that, as a result of this error, she underwent protracted litigation
before both this Court and the Pennsylvania Supreme Court. Ultimately, an en banc
panel of this Court ruled partially in her favor,4 and the Supreme Court affirmed,
agreeing that the Nursing Board erred in interpreting the Nursing Law to require that
McGrath’s nursing license could be automatically suspended for a mandatory period
of 10 years before she could request reissuance of her license.
In her Complaint, McGrath claimed that the Nursing Board’s error “deprived
[her] of her property, resulting in the deprivation of her livelihood and happiness.”
(Original Record (O.R.), Item No. 1 ¶ 12.) She brought claims for negligence, gross
negligence, negligent infliction of emotional distress, and intentional infliction of
emotional distress, and sought compensatory and punitive damages.
2
Act of May 22, 1951, P.L. 317, as amended, 63 P.S. §§ 211-225.5.
3
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 to -144.
4
In 2015, McGrath filed a petition for review of a Nursing Board’s order that automatically
suspended her registered nurse license for a mandatory period of 10 years based on her 2013 felony
drug conviction. McGrath v. Bureau of Pro. & Occupational Affs., State Bd. of Nursing, 146 A.3d
310 (Pa. Cmwlth. 2016) (en banc), aff’d, 173 A.3d 656 (Pa. 2017). We affirmed the Nursing
Board’s authority to automatically suspend McGrath’s nursing license for a felony drug conviction
but reversed its determination that the Nursing Law automatically required a 10-year license
suspension.
2
On December 10, 2019, the Nursing Board, represented by the Office of
Attorney General, filed preliminary objections to the Complaint. The Nursing Board
demurred on three bases: (1) McGrath failed to properly serve both the Nursing
Board and the Attorney General; (2) McGrath failed to state a claim upon which
relief can be granted; and (3) punitive damages are not recoverable against a
Commonwealth party. Specifically, as to service, the Nursing Board claimed that
McGrath improperly served the Nursing Board by mail and did not serve the
Attorney General at all. The Nursing Board thus requested that the trial court dismiss
the Complaint with prejudice based on McGrath’s failure to effectuate proper service
or, in the alternative, direct that she properly serve both the Nursing Board and the
Attorney General. McGrath filed an answer, generally denying the preliminary
objections and asking that they be overruled. As to service, McGrath responded that
the sheriff hand-delivered the Complaint to the Nursing Board on December 2, 2019,
and also hand-delivered the Complaint to the Attorney General on
December 16, 2019.5
On January 14, 2020, the Nursing Board filed a brief in support of its
preliminary objections. Therein, it withdrew its preliminary objection based on
improper service, conceding that McGrath had, in fact, properly served a copy of the
Complaint on both the Nursing Board and the Attorney General within 30 days of
filing her Complaint.6 Notwithstanding the withdrawal, by order dated
March 31, 2020, the trial court overruled the preliminary objection based on
improper service with the direction that McGrath properly serve a copy of the
5
The Affidavit of Service indicates that a constable served the Attorney General on
December 17, 2019. (O.R., Item No. 13; McGrath’s Response, Ex. B.)
6
McGrath filed a brief in opposition to the preliminary objections, in which she addressed
the Nursing Board’s two remaining preliminary objections. (O.R., Item No. 8.)
3
Complaint on the Nursing Board and the Attorney General in accordance with
Section 8523(b) of the Judicial Code and Pennsylvania Rule of Civil Procedure 422.
The trial court’s order also instructed that, in the event McGrath failed to properly
serve the Complaint, the Nursing Board shall renew its preliminary objection for
improper service.
On August 21, 2020, the Nursing Board filed a motion to renew its
preliminary objection based on improper service, asserting that McGrath had yet to
properly serve the Nursing Board or the Attorney General with the Complaint. As
a result, the trial court issued an order on August 26, 2020, sustaining the preliminary
objection based on improper service and dismissing McGrath’s Complaint with
prejudice.
On August 27, 2020, McGrath filed a response to the motion to renew the
preliminary objection for improper service, claiming that the sheriff served a copy
of the Complaint on the Nursing Board on December 2, 2019, and that a constable
served a copy of the Complaint on the Attorney General on December 17, 2019. In
support, she attached a Sheriff’s Return, signed by the Dauphin County Sheriff on
December 2, 2019, indicating that service was made on the Nursing Board on that
date, and an Affidavit of Service signed by a York Springs Borough constable,
indicating that service was made on the Attorney General on December 17, 2019.
On September 8, 2020, the Nursing Board filed an amended motion to renew
its preliminary objections, acknowledging that McGrath had in fact properly served
a copy of her Complaint on both the Nursing Board and the Attorney General. As
such, it withdrew its preliminary objection as to improper service and requested that
the trial court rule on the remaining preliminary objections. By order dated
4
September 11, 2020, the trial court ruled that the Nursing Board’s amended motion
was moot because the court previously dismissed the Complaint with prejudice.7
McGrath appealed to this Court.8 Thereafter, the trial court issued an opinion
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), acknowledging that
it inadvertently overlooked the Nursing Board’s withdrawal of its preliminary
objection based on improper service on January 14, 2020. (O.R., Item No. 18.) The
trial court explained that, as a result, it entered an order requiring McGrath to
properly serve the Nursing Board and the Attorney General; however, neither party
informed the trial court that the order was in error. It further explained that the
Nursing Board then complicated matters by filing a motion to renew its preliminary
objection for improper service, advising that approximately five months had passed
since the order was filed and that McGrath had yet to effect service. As a result of
McGrath’s perceived failure to comply with its order, the trial court dismissed the
case. Thereafter, McGrath submitted evidence that service was properly made, and
the Nursing Board filed an amended motion to renew its preliminary objections,
acknowledging that McGrath had properly served it and the Attorney General. The
trial court confessed that it erred in overlooking the Nursing Board’s
acknowledgment of proper service and instead dismissed the amended motion as
moot. As a result, the trial court requests that this Court reverse its August 26, 2020
order, reinstate the Complaint, and remand the matter for consideration of the
remaining preliminary objections.
7
On September 16, 2020, McGrath filed a motion for reconsideration, but the trial court
denied it because it did not conform with Dauphin County Local Rule 205.2(a)(3) (requiring
attachment of proposed order and distribution legend). (O.R., Item Nos. 16-17.)
8
“When reviewing a trial court’s order sustaining preliminary objections in the nature of a
demurrer, our standard of review is de novo and our scope of review is plenary.” Young v. Est. of
Young, 138 A.3d 78, 84 (Pa. Cmwlth. 2016).
5
Before this Court, McGrath raises essentially one issue. She argues that the
trial court abused its discretion and/or erred as a matter of law by overlooking the
Nursing Board’s withdrawal of its preliminary objection based on improper service
in its January 14, 2020 brief in support of its preliminary objections. Further, she
asserts that the record established that the Nursing Board and the Attorney General
were properly served months before the trial court dismissed the Complaint for lack
of service.
In its brief, the Nursing Board concedes that the trial court erred in dismissing
McGrath’s Complaint based on improper service. It acknowledges that McGrath
had the Dauphin County Sheriff personally serve the Complaint on the Nursing
Board on December 2, 2019, and a constable personally serve the Attorney General
on December 17, 2019. As a result, it withdrew its preliminary objection for
improper service on January 14, 2020, but, unfortunately, the trial court overlooked
the withdrawal and entered an order directing McGrath to properly effect service.
Mistakenly believing that McGrath had not complied with the trial court’s order, the
Nursing Board states that it sought dismissal of the Complaint. After the trial court
dismissed the Complaint, the Nursing Board learned that McGrath had filed her
response to the motion to renew the preliminary objections earlier that same day,
asserting that she had properly effected service. The Nursing Board then filed an
amended motion to address the issue, but the trial court dismissed the amended
motion as moot because the case had already been dismissed. As such, the Nursing
Board acknowledges that the trial court’s order dismissing the Complaint constitutes
error and asserts that we should reverse the trial court and remand the matter for
consideration of the remaining preliminary objections.
6
Section 8523(b) of the Judicial Code provides that “[s]ervice of process in the
case of an action against the Commonwealth shall be made at the principal or local
office of the Commonwealth agency that is being sued and at the office of the
Attorney General.” In addition, Pennsylvania Rule of Civil Procedure 422(a)
provides as follows:
(a) Service of original process upon the Commonwealth or an officer
of the Commonwealth, or a department, board, commission or
instrumentality of the Commonwealth, or a member thereof, shall be
made at the office of the defendant and the office of the attorney general
by handing a copy to the person in charge thereof.
In this case, the parties and the trial court agree that the trial court erred in
sustaining the preliminary objection for improper service and dismissing the
Complaint with prejudice. Indeed, the record contains the Sheriff’s Return
establishing that the Complaint was hand-delivered to the Nursing Board at its
business address on December 2, 2019, and the constable’s “Affidavit of Service by
Personal Service” establishing that the Complaint was also hand-delivered to the
Attorney General at its business address on December 17, 2019. (O.R., Item No. 13;
McGrath’s Response, Exs. A & B.) Accordingly, McGrath has shown that she
properly served both the Nursing Board and the Attorney General and that the trial
court’s order sustaining the Nursing Board’s preliminary objection based on
improper service and dismissing the Complaint with prejudice was thus in error.
For the above reasons, the order of the trial court is reversed, the Complaint
is reinstated, and this matter is remanded to the trial court for further proceedings,
including consideration of the remaining preliminary objections.
P. KEVIN BROBSON, President Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shannon McGrath, :
Appellant :
:
v. : No. 884 C.D. 2020
:
Bureau of Professional :
and Occupational Affairs, :
State Board of Nursing :
ORDER
AND NOW, this 10th day of August, 2021, the order of the Court of Common
Pleas of Dauphin County (trial court), dated August 26, 2020, is hereby
REVERSED, the Complaint in Civil Action filed by Shannon McGrath against the
Bureau of Professional and Occupational Affairs, State Board of Nursing is
REINSTATED, and the matter is REMANDED to the trial court for further
proceedings in accordance with the attached opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, President Judge