McGrath v. BPOA, Aplt.

[J-51-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
SHANNON MCGRATH, : No. 5 WAP 2017
:
Appellee : Appeal from the Order of the
: Commonwealth Court entered 8/24/16
v. : at No. 1001 CD 2015, affirming in part
: and reversing in part the order of the
: Bureau of Professional and
BUREAU OF PROFESSIONAL AND : Occupational Affairs entered 4/10/15 at
OCCUPATIONAL AFFAIRS, STATE : No. 1393-51-13
BOARD OF NURSING, :
:
Appellant : SUBMITTED: May 2, 2017
OPINION
CHIEF JUSTICE SAYLOR DECIDED: November 22, 2017
This appeal by allowance involves the automatic suspension of a nursing license
based on a felony drug conviction. The question raised is whether, under the governing
statute, reinstatement of the license is precluded for a fixed period of ten years, or is
instead permitted at an earlier date subject to the discretion of the state nursing board.
The nursing profession in Pennsylvania is overseen by the State Board of
Nursing (the “Board”), an arm of the Bureau of Professional and Occupational Affairs
(the “Bureau”), which in turn is part of Pennsylvania’s Department of State. Nursing
licenses are regulated pursuant to the Professional Nursing Law.1 Once issued, nursing
1
Act of May 22, 1951, P.L. 317, No. 69 (as amended 63 P.S. §§211-225.5) (the
“Nursing Law,” or simply the “Law”).
licenses may be suspended or revoked by the Board. As set forth in Section 14 of the
Law, the Board may suspend or revoke a license if it makes certain findings. See 63
P.S. §224(a), (b)(3). Additionally, the Board may refuse to issue an initial license for
these same reasons. For example, the Board may refuse, suspend, or revoke a license
if it finds that the licensee – or prospective licensee, as the case may be – is repeatedly
negligent or incompetent in practice; suffers from a mental or physical illness which
renders the person unable to practice with reasonable skill and safety; has willfully and
repeatedly violated the Nursing Law; has committed certain types of fraud or deceit; has
committed unprofessional conduct; has possessed or distributed a controlled substance
for other than medical purposes; has been convicted of a felony or a crime of moral
turpitude; or has received probation without verdict in the disposition of a felony charge.
See id. §224(a).
After the Board has suspended a license, it may restore or reissue the license in
its discretion subject to any disciplinary or corrective measure it could have originally
imposed. See id. §224(b)(6). The process for doing so is reflected in Section 15 of the
Nursing Law, which states, in pertinent part:
All suspensions and revocations shall be made only in accordance with
the regulations of the Board, and only by majority vote of the members of
the Board after a full and fair hearing before the Board. . . . The Board,
by majority action and in accordance with its regulations, may reissue any
license which has been suspended. If a license has been revoked, the
Board can reissue a license only in accordance with section 15.2.
63 P.S. §225. Thus, the Law sets forth distinct procedures for the restoration of
suspended and revoked licenses, and it imposes a more restrictive regimen in relation
to the latter.
In addition to the discretionary suspension of licenses under Sections 14 and 15,
the Nursing Law contains a provision, added in 1985, for automatic suspension due to a
[J-51-2017] - 2
felony conviction under the Controlled Substance, Drug, Device and Cosmetic Act.2 In
particular, Section 15.1(b) of the Law states:
A license issued under this act shall automatically be suspended upon . . .
conviction of a felony under the [Controlled Substance Act] . . .. As used
in this section the term “conviction” shall include a judgment, an admission
of guilt or a plea of nolo contendere. . . . Restoration of such license shall
be made as hereinafter provided in the case of revocation or suspension
of such license.
63 P.S. §225.1(b) (emphasis added). In terms of the “hereinafter provided” clause of
the above text, Section 15.2 indicates:
Unless ordered to do so by Commonwealth Court or an appeal therefrom,
the Board shall not reinstate the license of a person to practice nursing . . .
which has been revoked. Any person whose license has been revoked
may reapply for a license, after a period of at least five (5) years, but must
meet all of the licensing qualifications of this act for the license applied for,
to include the examination requirement, if he or she desires to practice at
any time after such revocation.
63 P.S. §225.2.
Finally, Section 6(c) of the Nursing Law, which relates to the qualifications for
licensure, specifies that if a nursing license applicant has been convicted of a felony
under the Controlled Substance Act, the Board may not issue a nursing license to that
person unless: ten years have passed since the date of the conviction; the applicant
demonstrates significant progress in rehabilitation so that licensure is not expected to
create a substantial risk to patients or the public; and the applicant otherwise satisfies
the licensure qualifications set forth in the Law. See 63 P.S. §216(c).3
2
Act of April 14, 1972, P.L. 233, No. 64 (as amended 35 P.S. §§780-101 to 780-144)
(the “Controlled Substance Act”).
3
Like Section 15.1(b), Section 6(c) clarifies that a conviction includes having admitted
guilt. See 63 P.S. §216(c)(3).
[J-51-2017] - 3
Given the interplay among the above provisions – and the fact that Section 15.2
only facially applies to revoked, as opposed to suspended, licenses – there is some
uncertainty as to when and how a license which has been automatically suspended per
Section 15.1(b) may be restored. At the heart of this appeal is the proper interpretation
of Section 15.1(b)’s prescription that restoration “shall be made as hereinafter provided
in the case of revocation or suspension of such license.” 63 P.S. §225.1(b).
Turning to the facts of this case, at the relevant time Appellee held a license to
practice professional nursing in Pennsylvania. In 2013, she pled guilty to one count of
felony drug possession in violation of the Controlled Substance Act and received a
sentence of probation without verdict. The Commonwealth then petitioned the Board to
impose an automatic suspension of Appellee’s nursing license pursuant to Section
15.1(b) of the Nursing Law. In response, the Board issued a notice and order informing
Appellee that her nursing license would be automatically suspended based on her
felony guilty plea. As for the length of the suspension, the Board referenced two
aspects of the Nursing Law reflecting different time periods. It first observed that
Section 15.2 of the law prescribes a five-year minimum period. See 63 P.S. §225.2.
Next, the Board referred to Section 6(c) of the Nursing Law, which provides for a ten-
year period with regard to the issuance of a new license. See 63 P.S. §216(c). After
quoting these provisions, the Board, without explanation, indicated that Appellee’s
license would be automatically suspended for ten years.
Appellee filed exceptions arguing that the ten-year suspension period was
improper.4 Thereafter, the Board entered a final adjudication affirming the notice and
order. Applying an interpretation of Sections 15.1(b) and 15.2 which it had recently
adopted, see infra note 5, the Board explained that, under the latter provision,
4
Appellee has acted pro se throughout this litigation.
[J-51-2017] - 4
Appellee’s license may only be restored “pursuant to the requirements for suspensions
and revocations.” In re Automatic Suspension of the License to Practice Prof’l Nursing
of Shannon McGrath, No. 1393-51-13, Final Adjudication & Order, slip op. at 5 (Bureau
of Prof’l & Occupational Affairs Apr. 10, 2015). The Board expressed that, because a
person whose license has been revoked must, under Section 15.2, meet all initial
licensure requirements at the time of restoration – including the requirements of Section
6(c) – Appellee could only be “relicensed” after a ten-year period. Id. Thus, the Board
viewed restoration of an automatically-suspended license as being subject to the same
prerequisites as those stated in Section 15.2 for revoked licenses.
In terms of precedent, the Board acknowledged it had traditionally proceeded
under Section 15 and exercised discretion in deciding when to restore an automatically-
suspended license. It noted, though, that its new understanding of the statutory scheme
as mandating a ten-year suspension period had recently been endorsed by the
Commonwealth Court in Packer v. Bureau of Professional & Occupational Affairs, State
Board of Nursing, 99 A.3d 965 (Pa. Cmwlth. 2014), appeal denied, 631 Pa. 715, 109
A.3d 680 (2015) (table), overruled by McGrath v. Bureau of Professional & Occupational
Affairs, State Board of Nursing, 146 A.3d 310 (Pa. Cmwlth. 2016) (en banc) – another
case involving an automatic nursing-license suspension based on a felony conviction
under the Controlled Substance Act.5 The Board thus rejected Appellee’s suggestion
that it should adhere to its pre-2013 practice by applying Section 15 in this case. See In
5
In its brief in the Packer matter, the Board explained that it began implementing this
new understanding in 2013 in response to a directive from the Bureau. See Packer, 99
A.3d at 970 & n.10. However, neither the Bureau nor the Board issued a formal or
informal interpretation – nor did they promulgate rules or regulations or generate policy
guidelines – reflecting this reading of the Law. See generally id. at 969-71.
[J-51-2017] - 5
re Automatic Suspension of the License to Practice Prof’l Nursing of Shannon McGrath,
No. 1393-51-13, Final Adjudication & Order, slip op. at 5-6.6
A divided en banc panel of the Commonwealth Court reversed the Board’s
holding that Appellee was precluded from seeking reinstatement of her license for ten
years. See McGrath, 146 A.3d at 312. The majority initially acknowledged that, after
finding the statute ambiguous, Packer ultimately agreed with the Board’s new
interpretation. More particularly, the majority noted that Packer had: (a) read Section
15.1(b)’s “hereinafter” qualifier to reflect that the Legislature did not intend for the
restoration of automatically-suspended licenses to be subject to the Board’s discretion
under Section 15; and (b) deemed “inconsequential” Section 15.2’s exclusive reference
to revoked licenses rather than suspended licenses. See id. at 317 (citing and quoting
Packer, 99 A.3d at 972-73). Nevertheless, the majority stated that the provisions are
penal in nature, see id. at 316 (citing Pa. State Real Estate Comm’n v. Keller, 401 Pa.
454, 456, 165 A.2d 79, 80 (1960) (indicating that a license-suspension provision of a
statute regulating real estate brokers’ licenses should be construed against the
government due to its punitive nature)) – a circumstance Packer had failed to consider.
The majority thus questioned whether application of the rule of lenity might lead to a
different result. In view of Packer’s omission in this respect, the majority – again
recognizing the ambiguous character of the Nursing Law – undertook a de novo
construction of the statutory provisions presently in issue.
In its analysis, the majority portrayed the Board’s pre-2013 interpretation – that it
retained discretion under Section 15 to reinstate nursing licenses which had been
6
It bears noting that, as Appellee’s license was automatically suspended under Section
15.1(b), it was not suspended pursuant to the Board’s discretion predicated on any of
the factors listed in Section 14, notwithstanding that, as recited above, one such factor
pertains to the improper possession of a controlled substance.
[J-51-2017] - 6
automatically suspended under Section 15.1(b) – as a natural and simple way to read
the statute. The majority observed that: Section 15 distinguishes between suspended
and revoked licenses and, by its terms, it governs the reissuance of all suspended
licenses; Section 15.1(b) expressly contemplates “restoration” of a suspended license,
suggesting that the licensing procedures for new applicants are inapplicable; and
Section 15.2, facially, only pertains to revoked licenses. See id. at 319-20. Still, the
majority acknowledged that uncertainty remained because:
Section 15.1(b) also states that “[r]estoration of such license shall be
made as hereinafter provided in the case of revocation or suspension of
such license.” The phrases “as hereinafter provided” and “revocation or
suspension” create an ambiguity because the section after 15.1 is 15.2,
which applies to revocations but does not even mention suspensions.
Id. at 320 (quoting 63 P.S. §225.1(b); citation and emphasis omitted).
The majority thus concluded that neither the Board’s, nor Appellee’s, reading fully
comports with interpretive precepts because the former would require the court to add
language to Section 15.2 to expand its application to encompass suspended licenses,
whereas the latter would require the court to ignore the word “hereinafter.” Facing this
quandary, the majority reiterated that the provisions in issue are punitive inasmuch as
they authorize the suspension of a professional license, and as such, they should be
strictly construed against the government. See 1 Pa.C.S. §1928(b)(1). The majority
additionally expressed that one aspect of the rule of lenity is that a punitive statute must
provide a clear and unequivocal warning concerning the penalties a person’s actions
will trigger. By not mentioning suspensions, the majority continued, Section 15.2 failed
to satisfy that requirement – meaning that it should be construed as not covering
suspended licenses. See McGrath, 146 A.3d at 321-22. Accordingly, the majority
overruled Packer and held that the proper framework for reinstating a license that has
been suspended pursuant to Section 15.1(b) is encompassed in Section 15 of the Law.
[J-51-2017] - 7
It therefore reversed the Board’s adjudication insofar as it precluded Appellee from
seeking reinstatement of her license for ten years. See id. at 324.
Judge Brobson filed a brief dissent, joined by Judge Simpson, expressing that,
although Packer was a close case, the panel’s decision “was not so clearly erroneous to
justify unsettling an area of law that this Court settled only two years ago.” Id. at 325
(Brobson, J., dissenting) (emphasis omitted).
We granted further review to consider whether the majority’s holding reflects the
proper interpretation of the Nursing Law. See McGrath v. Bureau of Prof’l &
Occupational Affairs, State Bd. of Nursing, ___ Pa. ___, 166 A.3d 1216 (2017) (per
curiam). As the issue implicates the interpretation of a statute, it raises a question of
law over which our review is plenary and de novo. See Fish v. Twp. of Lower Merion,
633 Pa. 705, 713, 128 A.3d 764, 769 (2015).7
The statutory language lacks substantial clarity for the reasons articulated by the
Commonwealth Court majority in the present matter. Unsurprisingly, the parties differ
over how to resolve any uncertainty. The Board largely argues that Packer’s resolution
reflects legislative intent, while Appellee approves of the en banc panel’s analysis. In
view of the absence of an explicit directive for restoration of an automatically-suspended
7
In its petition for allowance of appeal the Board also questioned whether the
intermediate court erred in overruling Packer rather than applying the doctrine of stare
decisis.
Although stare decisis applies as a general policy in Pennsylvania courts, the
Commonwealth Court’s procedures contemplate departure in some instances, see
Commonwealth Court Internal Operating Procedures §257 – and, moreover, an en banc
panel of an intermediate court is authorized to overrule a three-judge panel decision of
the same court. See generally Commonwealth v. Morris, 958 A.2d 569, 580 n.2 (Pa.
Super. 2008). Furthermore, where, as here, this Court undertakes de novo resolution of
a legal issue, any assessment concerning the propriety of the intermediate court’s
failure to follow its own precedent on that issue is immaterial.
[J-51-2017] - 8
license which has not been revoked, resort to the precepts of statutory-construction is
presently warranted. See generally 1 Pa.C.S. §1921.8
In applying such principles, we may discern the enactment’s meaning by looking
to several factors, including the former law on the topic and “other statutes upon the
same or similar subjects.” Id. §1921(c)(5). In this respect, Appellee draws our attention
to the pre-1985 version of the Nursing Law and the textual modifications made to the
Nursing Law by the 1985 legislation. See Brief for Appellee at 4. We agree that such
revisions, together with similar automatic-suspension provisions in other professional-
licensing statutes, shed light on the legislative intent underlying the statutory provisions
under review – the effectuation of which is our primary objective. See 1 Pa.C.S.
§1921(a); Tritt v. Cortes, 578 Pa. 317, 321, 851 A.2d 903, 905 (2004).
The Nursing Law has existed since 1951, see supra note 1, but until May 1985 it
lacked any requirement that a license be automatically suspended upon conviction of a
Controlled Substance Act felony. In May 1985, the Legislature revised the statute by
adding Section 16.1 (repealed and replaced later that year) which was nearly identical
to the present Section 15.1(b), quoted above. Section 16.1 stated:
A license issued under this act shall automatically be suspended upon . . .
conviction of a felony under the [Controlled Substance Act] . . .. As used
in this section the term “conviction” shall include a judgment, an admission
of guilt or a plea of nolo contendere. . . . Restoration of such license shall
be made as in the case of revocation or suspension of such license.
8
Usage of such precepts is proper when statutory language is “not explicit.” 1 Pa.C.S.
§1921(c). Although this Court has often described such a circumstance as suggesting
the existence of two reasonable interpretations, see, e.g., O’Rourke v. Dep’t of Corr.,
566 Pa. 161, 172-73, 778 A.2d 1194, 1201 (2001), the “not explicit” prerequisite
logically applies where, as here, any reading of the statute’s plain text raises non-trivial
interpretive difficulties.
[J-51-2017] - 9
Act of May 2, 1985, P.L. 22, No. 10, §2, set forth at 63 P.S. §226 (emphasis added)
(repealed and replaced by Act of Dec. 20, 1985, P.L. 409, No. 109, §§13, 14 (as
amended 63 P.S. §15.1(b))).
The emphasized part of the above text contains two noteworthy features. First, it
lacks the phrase “hereinafter provided,” after the word “as,” which is the only difference
between it and the last sentence of the present Section 15.1(b). The implications of this
aspect of the text are discussed below in connection with the wording changes made by
the General Assembly seven months later, in December 1985, in conjunction with its
decision to move Section 16.1 to the newly-created Section 15.1(b).
Second, Section 16.1 provides that “[r]estoration of such license,” is to be made
“as in the case of revocation or suspension of such license.” In other words, it states
that a license subject to automatic suspension should be restored as in the case of a
license subject to suspension or revocation.9 Because licenses subject to automatic
suspension under Section 16.1 would appear to be a subset of all licenses subject to
suspension, this phraseology at first appears tautological: it seems to imply that
restoration of an automatically-suspended license (which has not been revoked) is to be
made as in the case of an automatically-suspended license. We assume, though, that
this is not what the Legislature intended to convey. See generally 1 Pa.C.S. §1922(2)
(requiring a presumption that the General Assembly intends the entire statute to be
effective). The solution is to recognize that, per the Legislature’s usage, an “automatic
suspension” under then-Section 16.1 (now-Section 15.1(b)) is a separate category from
a “suspension” – as confirmed by the phrase, “as in the case of.”
9
The reference to revocation appears to have been included to account for the
possibility that an automatically-suspended license might later be revoked during the
time it is suspended.
[J-51-2017] - 10
It follows that the statutory text, “as in the case of . . . suspension of such license”
refers to an ordinary – or non-automatic – suspension of a license, i.e., a license
suspended pursuant to Sections 14 and 15. Consistent with this understanding, Section
15, by its terms, relates to “[a]ll suspensions,” as it states that “[a]ll suspensions . . .
shall be made only in accordance with the regulations of the Board, and only by majority
vote of the members of the Board.” 63 P.S. §225. This, again, confirms that the
Legislature viewed suspensions and automatic suspensions as comprising distinct, non-
overlapping categories, with suspended licenses to be restored per the Board’s
regulations as set forth in Section 15, the final sentence of which, at the time, indicated:
“The Board, by majority action and in accordance with its regulations, may reissue any
license which has been suspended or revoked.” 63 P.S. §225 (as of May 1985).10
In summary, then, with the enactment of the former Section 16.1 in May 1985,
the Legislature: (a) prescribed that a license should be automatically suspended based
10
A review of other professional-licensing enactments reveals that this represents
common legislative shorthand. To take but one example, the Optometric Practice and
Licensure Act, see 63 P.S. §§244.1-244.12, includes a provision nearly identical to
Section 16.1, the last sentence of which states: “Restoration of such license shall be
made as provided in this act for revocation or suspension of such license.” Id.
§244.7(g). As in the Nursing Law, although this language is contained in the automatic-
suspension context, it uses the term “suspension” to refer to the general provisions for
license suspension and their discretionary restoration. See id. §244.7(b)(6).
The same phraseology appears in the licensing statutes pertaining to numerous other
professions. See, e.g., id. §§42.16a(b) (podiatrists); 157.1(b) (engineers, land
surveyors, and geologists); 271.14(b) (osteopaths); 390-7(d.2) (pharmacists); 422.40(b)
(medical doctors); 485.25(c) (veterinarians); 625.506(e) (chiropractors); 667.1(b)
(practical nurses); 1108.1(b) (nursing home administrators); 1208(e) (psychologists);
1311.1 (physical therapists); 1911(e) (social workers). It also appears in the Controlled
Substance Act itself. See 35 P.S. §780-123(c) (specifying that where a professional
license has been subject to an automatic suspension based on a misdemeanor
conviction under the Controlled Substance Act, “[r]estoration of such license shall be
made as in the case of a suspension of license”).
[J-51-2017] - 11
on, inter alia, a felony conviction under the Controlled Substance Act; (b) stated that the
restoration of a license thus suspended should be accomplished “as in the case of” a
suspended license, pursuant to the non-automatic guidelines for suspension; and (c)
expressed its intention in this regard by using the phrase “suspension of such license”
to refer to the non-automatic suspension scenario.
With this background, we proceed to examine the revisions to the Nursing Law
accomplished by the legislation which led to the text of Section 15.1(b) as it appears
today. Passed in December 1985 – approximately seven months after Act 10 added
Section 16.1 – Act 109 of 1985, see Act of Dec. 20, 1985, P.L. 409, No. 109 (“Act 109”),
made a number of substantive additions to the Nursing Law. Several of these pertain to
the present controversy. Of particular relevance, Act 109 changed the last sentence of
Section 15 as follows:
The Board, by majority action and in accordance with its regulations, may
reissue any license which has been suspended [or revoked]. If a license
has been revoked, the Board can reissue a license only in
accordance with section 15.2.
Act 109, §12.11
At the same time, Act 109 added Section 15.2 which, as discussed, facially
relates only to revoked licenses. Further – and importantly for present purposes – in
moving Section 16.1 to the new Section 15.1(b), Act 109 changed the last sentence in a
manner reflected by the following italicization:
Restoration of such license shall be made as hereinafter provided in the
case of revocation or suspension of such license.
Act 109, §13; see 63 P.S. §225.1(b).
11
In keeping with legislative custom, changes are bolded, with bracketed text showing
deleted language and italicized text showing added words. Thus, the above reflects the
manner in which the text appears Act 109 itself, i.e., in the pamphlet law.
[J-51-2017] - 12
The above revision to Section 15 directs the reader to Section 15.2 for details on
the reissuance of a revoked license while leaving in place the mechanism for restoration
of a suspended license.12 Consistent with that revision, the change to the automatic-
suspension provision – the insertion of the words “hereinafter provided” as illustrated in
the above-quoted text – also refers the reader to some later section of the Law for
details on how restoration of a license is to be made “in the case of revocation[.]”
Critical for purposes of this appeal is the proper understanding of the two words
that follow – “or suspension.” If they are understood as being semantically connected to
the hereinafter clause, significant difficulties arise because, as discussed, Section 15.2
only relates to revoked licenses, not to licenses that have only been suspended. Such
difficulties are avoided by recognizing that the addition of the phrase, “hereinafter
provided,” could not have altered the existing meaning of the word “suspension” as it
appears later in the same sentence. As detailed above, that word does not refer to an
automatic suspension of a license under Section 15.1(b) itself, but rather, to a
discretionary suspension accomplished per Sections 14 and 15. Recognizing this also
makes the textual revision (insertion of the hereinafter clause) consistent with the
simultaneous revision to Section 15, which keeps in place the mechanism for
restoration of a suspended license, but specifies that restoration of a revoked license is
now governed by a provision appearing later in the statute, i.e., Section 15.2.13
12
As regards the legislative terminology relating to the recovery of licensure, Section 15
relates to the “reissuance” of suspended or revoked licenses, Section 15.1(b) speaks in
terms of “restoration” of such licenses, and Section 15.2 couches such action as
“reinstatement” of revoked licenses. It is apparent that, in these provisions, such terms
are used interchangeably. Accord Packer, 99 A.3d at 974 n.20.
13
It may also be noted that Section 15.1(a), which relates to temporary suspensions
due to a clear danger to public health and safety, specifies that Section 15’s procedure
for reinstatement of a suspended license does not apply to temporarily suspended
(continued…)
[J-51-2017] - 13
Accordingly, we conclude that the phrase “hereinafter provided” was only
intended by the General Assembly to apply to the revocation scenario.14
The Board takes exception to such an outcome primarily based on policy
concerns. See Brief for Appellant at 16-18. It suggests, for example, that an absurd
result may arise because discretionary restoration of a license suspended pursuant to
Section 15.1(b) could theoretically occur shortly after a felony conviction, whereas a
suspension based on a misdemeanor conviction could last as long as one year. See 35
P.S. §780-123(c) (providing that licensing boards “shall automatically suspend, for a
period not to exceed one year, the registration or license of any practitioner” when the
person has been convicted of a misdemeanor under the Controlled Substance Act).
Also, the Board asserts that it would be inequitable if individuals who are licensed as
professional nurses, but whose licenses are automatically suspended due to a felony
conviction under the Controlled Substances Act, could be restored to practice after less
than ten years, whereas a person who has never been licensed would have to wait ten
years after a felony conviction to become licensed.
These arguments are not well taken. First, under our interpretation the Board
retains discretion to reinstate an automatically-suspended license based on numerous
factors, and there is no suggestion that the Board would ever be required to impose an
unduly short suspension period in the wake of a felony conviction. The comparison to a
(…continued)
licenses. See 63 P.S. §225.1(a). No similar expression of non-applicability is found in
Section 15.1(b).
14
Certainly, a rule-of-lenity overlay as suggested by Justice Wecht yields the same
result as our analysis. Still, we think it important to consider other traditional tools of
statutory construction in an effort to ascertain legislative intent and rationally assign
meaning to legislative words which, initially, seem unclear. Moreover, we believe that
doing so is appropriate even where the exercise entails some complexity.
[J-51-2017] - 14
misdemeanant’s period of suspension is particularly inapt because in that case, too, the
law specifies that the length of suspension is “not to exceed one year,” 35 P.S. §780-
123(c) – meaning, again, that the length of the suspension ultimately falls within the
Board’s discretion.
Second, the Board fails to acknowledge that a professional nurse who has been
licensed but whose license has been suspended is not similarly situated to an individual
who has never been licensed – or, for that, matter, a person who was once licensed but
whose license has been revoked. See generally Brown v. State Bd. of Pharmacy, 129
Pa. Cmwlth. 642, 646, 566 A.2d 913, 915 (1989) (acknowledging that a person holding
a professional license still possesses a property right in that license even where it has
been suspended (but not revoked), as a suspended license is “susceptible to revival”);
Pittenger v. Bureau of Prof’l & Occupational Affairs, 142 Pa. Cmwlth. 57, 61-62, 596
A.2d 1227, 1229-30 (1991) (same, and expressing further that “when a license . . . is
revoked, it is extinguished and the former possessor is returned to the same position he
occupied had the license or privilege never been issued” (quoting Keeley v. State Real
Estate Comm’n, 93 Pa. Cmwlth. 291, 296, 501 A.2d 1155, 1158 (1985))).
Even putting aside this difference in constitutional footing, it is not illogical that
the General Assembly would provide for discretionary reinstatement of an automatically-
suspended license while also requiring a ten-year waiting period for a convicted felon
who has never held a license. In the former case the Board has a record of interaction
in which the licensee previously demonstrated the requisite skills, knowledge, and moral
character to become a licensed professional, and has additionally fulfilled any
continuing requirements for licensure over a period of time. See 63 P.S. §§215 (relating
to examinations and certificates); 216 (relating to fees and qualifications for licensure);
222 (relating to continuing nursing education). This history, being available to the
[J-51-2017] - 15
agency, can assist it in making an informed, discretionary determination as to whether
and when a suspended license should be reinstated. The same information is not
available in relation to a person who has never attained licensure.
We recognize that Section 15.1(b) reflects a clear legislative policy judgment that
a felony violation of the Controlled Substances Act is an especially serious infraction
warranting an automatic license suspension. It does not follow, however, that the
legislative body also intended to divest the Board of its discretion to restore such a
license in the manner applicable to other license suspensions after conducting an
appropriate administrative review.
Finally, nothing in our decision prevents the Board from seeking revocation of a
license, in accordance with the procedures outlined in the Nursing Law, following a
conviction under the Controlled Substances Act. See 63 P.S. §224(a)(8) (authorizing
the Board to impose discipline, up to and including revocation, based on the acquisition,
possession, distribution, or use of a controlled substance for other than acceptable
medical purposes); accord McGrath, 146 A.3d at 320 (“The Board could have sought
revocation of Ms. McGrath’s license [under Section 14] . . . but it did not.” (emphasis
omitted)). If an automatically-suspended license is ultimately revoked, reinstatement
would then be governed by Section 15.2.
The order of the Commonwealth Court is affirmed.
Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.
Justice Wecht files a concurring opinion.
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