D. Mabin, R.N. v. BPOA, State Board of Nursing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darlene Mabin, R.N., :
Petitioner :
:
v. : No. 1763 C.D. 2017
: SUBMITTED: June 4, 2018
Bureau of Professional and :
Occupational Affairs, State Board :
of Nursing, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: June 29, 2018
Darlene Mabin, R.N. (Licensee) petitions for review of an order of the
State Board of Nursing (Board) that imposed disciplinary action of one year of
probation, with alcohol monitoring, pursuant to Section 14(a)(2) of the Professional
Nursing Law (Law).1 We affirm.
In March 2009, Licensee obtained a license to practice as a registered
nurse. In July 2014, the Board’s probable cause committee issued an order
compelling her to undergo an examination with George E. Woody, M.D. When she
failed to comply, the Commonwealth filed a motion to deem facts admitted. Once
she filed an answer, it withdrew the motion and rescheduled an examination for
1
Act of May 22, 1951, P.L. 317, as amended, 63 P.S. § 224(a)(2).
December 2014. Based on Dr. Woody’s diagnosis, it filed a March 2015 order to
show cause alleging that Licensee was unable to practice nursing unless monitored
for three years. After several requests for an extension of time to file an answer,
Licensee filed one in July 2015. In November 2015, she retained an attorney.
Following numerous continuances, a hearing examiner held an administrative
hearing in March 2016.
At the hearing, Dr. Woody recommended that Licensee take part in a
monitoring program with random urine testing and reports from her psychiatrist for
one year to verify independently that she can practice safely. In his closing
statement, counsel for Licensee stated: “The monitoring recommendation of a year
with continued therapy and random testing is something with which [Licensee] has
no problem, and [she would readily accept] that type of condition in order . . . to
continue to work . . . .” (March 31, 2016, Notes of Testimony (N.T.) at 47;
Reproduced Record (R.R.) at 59a.) Thereafter, the hearing examiner issued a
February 2017 proposed adjudication and order (proposed report) with detailed
conditions of probation. In March 2017, the Board issued a notice of intent to review
the proposed report and sanction and neither party filed a brief on exceptions. In
November 2017, the Board issued a final order essentially adopting the hearing
examiner’s report.2 Licensee did not file a request for reconsideration. Her appeal
to this Court followed.
We first address the determinative issue of whether Licensee waived
the right to raise any issues on appeal for failure to file a brief on exceptions to the
proposed report or a request for reconsideration of the Board’s final order adopting
2
According to the Board: “The only difference in the monitoring terms is the inclusions of a
supervision requirement in Paragraphs 29-33 of the Final Order and removal of specific references
to Dr. Bell [Licensee’s treating psychiatrist] in the Evaluation section.” (Board’s Brief at 8.)
2
that report. In her brief, Licensee stated that she raised and preserved her issues in
the petition for review filed with this Court thereby tacitly acknowledging that she
failed to raise any issues below. Nonetheless, she argues in her reply brief that her
failure to file exceptions did not result in waiver because the Board gave notice of
its intention to review “regardless” of whether either party filed exceptions. In
support of her position, Licensee recites the Board’s proffered authority for review,
a regulation entitled “Final orders.” In pertinent part, it provides:
(a) Adjudications of an agency head shall be final
orders, subject only to application for rehearing, if any,
provided for by the statute under which the proceeding is
initiated and conducted . . . . Final orders shall include:
....
(2) Adjudications by the agency head upon appeal
of proposed reports by participants, by filing exceptions in
the manner and time provided by § 35.211 (relating to
procedure to except to proposed report), or upon review
initiated by the agency head within 10 days next following
the expiration of the time for filing exceptions under the
section, or another time as the agency head may fix in
specific cases.
1 Pa. Code § 35.226(a)(2).
Contrary to Licensee’s contention, the above regulation does not
provide that an agency’s decision to conduct a review relieves a party of the burden
to raise and preserve issues by filing exceptions in the form of a brief on exceptions
in accordance with the General Rules of Administrative Practice and Procedure at 1
Pa. Code §§ 35.211-.214. Instead, it pertains to when an adjudication becomes a
final order. See Earth Share v. Office of Admin., 660 A.2d 138, 141 (Pa. Cmwlth.
1995) (after agency circulated a proposed report, advised counsel that exceptions
could be filed within thirty days, and none were filed, such inaction constituted a
3
waiver of objections to the proposed report and it was deemed a final order by
operation of law pursuant to 1 Pa. Code §§ 35.213 and 35.226).
Moreover, the hearing examiner in her February 28th proposed report
advised the parties that the Board had announced its intention to conduct a review.
In the attached notice, she also explained that any participant that wished to appeal
had to file exceptions and that the failure to do so would result in a waiver of all
objections. Subsequently, the Board in its March 9th Notice of Intent to Review
advised the parties as follows:
If either party wishes to submit further argument
regarding the proposed sanction, [it] must do so in a Brief
on Exceptions to the [proposed report], which must be
filed, in accordance with the General Rules of
Administrative Practice and Procedure at 1 Pa. Code §§
35.211-[.]213, within thirty (30) days after the service of a
copy of the proposed report. If either party wishes to file
a Brief Opposing Exceptions, [it] must do so, in
accordance with the General Rules, within 20 days after
the time for filing of Briefs on Exceptions.
(March 9, 2017, Notice of Intent to Review; R.R. at 94a.) Accordingly, this is not a
case where the Board by virtue of its decision to conduct a review misled either party
regarding the necessity of filing exceptions.
Furthermore, following the Board’s issuance of a final order, Licensee
did not request reconsideration. Instead, she filed only a petition for review therein
raising objections for the first time. Accordingly, she waived her opportunity to
raise issues on appeal. 1 Pa. Code § 35.213 (failure to file a brief on exceptions
constitutes a waiver of all objections to the proposed report); Pennsylvania Rule of
Appellate Procedure 1551 (an appellate court is precluded from reviewing an issue
which was not raised and preserved before an agency unless it finds that appellant
4
could not have done so by the exercise of due diligence or he or she otherwise shows
good cause for permitting the court to depart from this rule).
For the above reasons, therefore, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darlene Mabin, R.N., :
Petitioner :
:
v. : No. 1763 C.D. 2017
:
Bureau of Professional and :
Occupational Affairs, State Board :
of Nursing, :
Respondent :
ORDER
AND NOW, this 29th day of June, 2018, the order of the State Board of
Nursing is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge