N.L. Custer v. BPOA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicole L. Custer, :
Petitioner :
:
v. : No. 564 M.D. 2018
: Submitted: February 7, 2020
Commonwealth, Department of :
State, Bureau of Professional and :
Occupational Affairs, Kathy :
Boockvar, Kalonji Johnson, Ian :
Harlow, State Board of Occupational :
Therapy Education and Licensure, :
Kerri Hample, Joanne M. Baird, :
Carolyn M. Gatty, Christine L. :
Hischmann, Edward J. Mihelcic, :
Commonwealth, Department :
of Human Services, and Teresa :
D. Miller, :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: October 29, 2020
Before the Court are the preliminary objections filed by the Department
of State, Bureau of Professional and Occupational Affairs; Secretary of State, Kathy
Boockvar; Kalonji Johnson; Ian Harlow; the State Board of Occupational Therapy
Education and Licensure; Kerri Hample; Joanne M. Baird; Carolyn M. Gatty;
Christine L. Hischmann; Edward J. Mihelcic; the Department of Human Services;
and Secretary of Human Services, Teresa D. Miller (collectively, Respondents) to
Nicole L. Custer’s amended petition for review filed in this Court’s original
jurisdiction. Under various legal theories, Custer’s amended petition seeks, inter
alia, to compel the State Board of Occupational Therapy Education and Licensure
(State Board) to renew her license as an occupational therapist as of July 5, 2017,
the date on which she completed all requirements for license renewal. The State
Board marked Custer’s license as “expired” because its agent did not notify it that
Custer had completed the online continuing education requirement for a license
renewal. Respondents assert that the amended petition for review does not state a
cognizable claim for relief and should be dismissed.
I. Procedural Background
On August 20, 2018, Custer filed a petition for review addressed to this
Court’s appellate and original jurisdiction. Respondents moved to quash the
appellate claim and to dismiss the original jurisdiction claim. In a single-judge
opinion, the Court granted the motion to quash the appellate jurisdiction claim;
sustained the preliminary objections to the original jurisdiction claim; and dismissed
the petition for review with prejudice. See Custer v. Department of State, Bureau of
Professional and Occupational Affairs (Pa. Cmwlth., No. 564 M.D. 2018, filed June
18, 2019) (Brobson, J.).
The Court reasoned that Custer could not appeal letters sent to her by
the State Board and the Department of State, Bureau of Professional and
Occupational Affairs (Department of State), because they were not adjudications.
The Court also concluded that Custer was required to complete her licensing
requirements by June 30, 2017, and did not do so until July 5, 2017. Accordingly,
she had no legal right to renewal of her license as of June 30, 2017.
Custer then filed an application for reconsideration of the Court’s ruling
on her original jurisdiction claim and sought leave to file an amended petition for
2
review. This Court granted reconsideration; vacated its order of June 18, 2019; and
granted leave for the filing of an amended petition for review within 30 days.
Custer’s amended petition for review then followed, seeking a
declaration that her license was renewed as of July 5, 2017, rather than February 27,
2018. It presents the following factual bases and legal theories in support of her
request for relief.
II. Factual Background
Custer is an occupational therapist who treats children with disabilities.
She began her career with United Cerebral Palsy, working with cerebral palsy
patients to develop the skills they needed to perform daily activities. Amended
Petition for Review (Amended Petition) ¶6. Since 2008, Custer has worked
primarily in early intervention to promote the development of infants, toddlers and
preschoolers in everyday routines. Id. ¶7. Her patients are newborns to three-year-
olds with conditions such as Down’s Syndrome, cerebral palsy, autism, premature
birth, drug addiction or behavioral issues. Id. ¶8. Custer was first licensed as an
occupational therapist in 2003, pursuant to the Occupational Therapy Practice Act,
Act of June 15, 1982, P.L. 502, No. 140, as amended, 63 P.S. §§1501-1519. Id. ¶4.
On June 30, 2017, Custer submitted a renewal application for her
occupational therapist license to the Department of State’s website and paid the
renewal fee. Id. ¶22. On July 5, 2017, Custer received a “License Renewal
Discrepancy Letter” by email from the Department. Id. ¶23, Ex. 1. The email
acknowledged receipt of her renewal application and advised that she had to
complete a course on child abuse recognition before her license could be renewed.
Id. ¶24, Ex. 1. The email stated as follows:
3
Since the implementation of Act 31 of 2014,[1] you are now
required to complete two hours of [State] Board approved
Child Abuse Recognition and Reporting Continuing
Education (Child Abuse CE) before your license can be
renewed.
If you have met the Child Abuse CE requirement, but are
receiving this notice, you must contact the [State] Board
approved provider that offered the course to ensure that they
have submitted an electronic certification of completion to the
[State] Board.
***
• DO NOT reply to this email and/or submit a paper copy
of your certification of completion. We cannot accept
paper certificates.
• Proof of completing the course MUST BE submitted
electronically from the course provider to the [State]
Board.
***
Please be advised that your license WILL NOT be renewed
until the Child Abuse CE requirement has been met.
Id. at Ex. 1 at 1-2 (emphasis in original).
That same day, Custer completed the required Child Abuse CE course
online through the University of Pittsburgh School of Social Work, Pennsylvania
Child Welfare Resource Center (University). Amended Petition ¶32. As directed
by the above-quoted email, Custer did not submit documentation to the Department
of State that she had completed the course.
On February 12, 2018, Custer submitted claims for reimbursement to
the Department of Human Services for occupational therapy services she rendered
1
Act of April 15, 2014, P.L. 411, No. 31.
4
to Medical Assistance enrollees. Id. ¶39. The Department of Human Services
informed her that her license was expired. Id. ¶40. Custer contacted the State Board
and learned that it marked her license as “expired” because the Board had not
received certification from the University that she had completed the Child Abuse
CE course. Id. ¶41. Custer immediately re-took the course, and the State Board
reactivated her license on February 27, 2018. Id. ¶¶42-43.
Custer then contacted the University to determine why she had not been
credited for the continuing education course she completed on July 5, 2017. Id. ¶45.
She learned that the University had mistakenly credited her husband, who is also a
professional licensee subject to the Child Abuse CE requirement. Id. ¶53. The
University corrected the mistake and reported the credits to the State Board as having
been completed by Custer on July 5, 2017. Id. ¶56.
When Custer contacted the State Board to request a renewal of her
license as of June 30, 2017, the Board Administrator responded, “[u]nfortunately the
[State] Board cannot make the change retroactive. All the renewal requirements
must be met, received, and processed on or before the 30 days after expiration.” Id.
¶60. Custer requested information on how to appeal that decision, but she did not
receive a response. Id. ¶¶61-62.
In April 2018, the Department of Human Services notified Custer that
because her license had been expired for the period between June 30, 2017, and
February 26, 2018, she owed the Department of Human Services $50,307.84, which
was the amount it had paid to her for services she rendered during that period to
patients enrolled in Medical Assistance. Id. ¶75. Custer, now represented by legal
counsel, again requested the State Board to correct the mistake of its agent, the
5
University, by reactivating her license as of June 30, 2017. Id. ¶77, Ex. 12. The
Department of State and the State Board refused her request. Id. ¶80.
III. Amended Petition for Review and Preliminary Objections
The amended petition for review contains several counts: Count I
requests this Court to issue a writ of mandamus to the Department of State and State
Board to deem Custer’s occupational therapist license renewed as of July 5, 2017,
or, alternatively, conduct a fair and adequate hearing on the matter. Count II seeks
a declaratory judgment that Custer’s license was renewed as of July 5, 2017, and
none of Respondents may take any administrative, disciplinary, civil or criminal
action against her for allegedly unlicensed activity. Count III asserts that the
individual Respondents violated Custer’s due process rights under the United States
Constitution by refusing to acknowledge the renewal of her license on July 5, 2017.
Count IV asserts that all Respondents have violated her due process rights under the
Pennsylvania Constitution. Count V asserts a substantive due process claim under
the United States Constitution against the individual Respondents for refusing to
acknowledge her July 5, 2017, license renewal. Count VI asserts a substantive due
process claim under the Pennsylvania Constitution against all Respondents for
failing to acknowledge renewal of her license as of July 5, 2017. Count VII asserts
a claim that the individual Respondents have violated Custer’s right to equal
protection under the United States Constitution by refusing to acknowledge the
renewal of her license on July 5, 2017. Count VIII asserts an equal protection claim
under the Pennsylvania Constitution against all Respondents for refusing to
acknowledge her July 5, 2017, license renewal. Count IX seeks an injunction against
all Respondents to restrain their unconstitutional conduct.
6
Custer seeks relief in the form of a declaratory judgment that her
constitutional rights were violated; a declaratory judgment that her license renewed
as of July 5, 2017; an order that Respondents may not initiate or aid in administrative,
disciplinary, civil or criminal actions against her for the stated ground that the license
had expired; and an order that the Secretary of Human Services, Teresa Miller, may
not seek recovery of the fees paid to Custer for services she rendered for the stated
reason that her license had expired. Custer seeks an award of costs and attorneys’
fees pursuant to 42 U.S.C. §§1983 and 1988 (actions for deprivations of civil rights
and in vindication of civil rights).
In response, Respondents filed preliminary objections in the nature of
a demurrer to all nine counts. Respondents assert that Count I of the amended
petition for review does not present a clear right to relief, which is necessary for a
writ of mandamus; Count II does not present a case in controversy, which is
necessary for a declaratory judgment; Counts III and IV do not state a procedural
due process claim and none of the individual Respondents are alleged to have been
personally involved in any action adverse to Custer; Counts V and VI do not state a
substantive due process claim and none of the individual Respondents are alleged to
have been personally involved in any action adverse to Custer; Counts VII and VIII
do not state an equal protection claim and none of the individual Respondents are
alleged to have been involved in any action adverse to Custer; and Count IX does
not state a cognizable claim for equitable relief.
When considering preliminary objections, we must accept as true all
well-pleaded facts and inferences, but not conclusions of law. Cowell v. Department
of Transportation, 883 A.2d 705, 707 n.2 (Pa. Cmwlth. 2005). “Preliminary
objections in the nature of a demurrer should be sustained only where the pleadings
7
are clearly insufficient to establish a right to relief; any doubt must be resolved in
favor of overruling the demurrer.” Id.
IV. Analysis
A. Mandamus
Respondents argue that Custer is not entitled to a writ of mandamus to
compel the State Board or the Department of State to renew her license as of July 5,
2017, or to direct them to conduct a hearing on the effective date of her license
renewal. Respondents acknowledge that the State Board has a ministerial duty to
renew the licenses of occupational therapists who qualify for them and that Custer
was qualified. However, Respondents argue that it was Custer’s responsibility to
ensure that the University submitted the Child Abuse CE documentation to the State
Board. Further, Custer has not pointed to any statute that would authorize the Board
to backdate her occupational therapist license.
Custer responds that she had a clear legal right to have her license
renewed as of July 5, 2017. Neither the statute nor the regulations impose a duty on
her to notify the Department of State that she completed the required course. To the
contrary, the Department of State directed her not to contact it once she completed
the Child Abuse CE course. Custer asserts that a writ of mandamus is necessary to
compel Respondents to renew her license as of the date she qualified, i.e., July 5,
2017.
A writ of mandamus compels a public official’s performance of a
ministerial act or mandatory duty. Chesapeake Appalachia, LLC v. Golden, 35 A.3d
1277, 1280 n.7 (Pa. Cmwlth. 2012). Mandamus requires a clear legal right to relief
in the petitioner, a corresponding duty in the respondent and the lack of any other
adequate and appropriate remedy. Wilson v. Pennsylvania Board of Probation and
8
Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). Mandamus is not available to
establish legal rights but only to enforce rights that have been established. Id. As a
high prerogative writ, mandamus is rarely issued and never to interfere with a public
official’s exercise of discretion. Chadwick v. Dauphin County Office of Coroner,
905 A.2d 600, 603 (Pa. Cmwlth. 2006).
The amended petition alleges that Custer met the requirements for
renewal of her license as of July 5, 2017, and the University so informed the
Department of State. It further alleges that the Secretary of State will neither correct
the effective date of her renewal license nor give her a hearing on its refusal to act.
Respondents ignore these well-pled facts and simply assert, in conclusory fashion,
that a license renewal date cannot be corrected.
Respondents concede that a license renewal is a ministerial duty and
that Custer has no other adequate and appropriate remedy. Because the amended
petition for review asserts facts supporting Custer’s right to a license as of July 5,
2017, Respondents’ preliminary objection to Count I of the amended petition for
review will be overruled.
B. Declaratory Judgment
Respondents next contend that Custer is not entitled to a declaratory
judgment because she has not established that there is a genuine controversy ripe for
review. They assert that the amended petition itself shows that Custer did not
successfully renew her license and, thus, it expired by operation of law. After she
submitted the required documents in February 2018, the Department of State
reactivated her license.
Custer responds that the amended petition presents a controversy, i.e.,
the Department of Human Services and the Secretary of Human Services have
9
demanded the return of fees she earned for treating Medical Assistance patients.
There is no question that she provided the services, and there is no question that she
qualified for a license renewal as of July 5, 2017, before she rendered the services.2
The Department of State forbade Custer to send her Child Abuse CE record to the
State Board, for the stated reason that it would only accept electronic certification
directly from the course provider. Custer had no reason to believe the University,
the course provider chosen by the State Board, would not timely submit her
certificate of completion. Neither the State Board nor the Department of State
notified Custer that it considered her license to be expired. She learned that fact
months later in February 2018 and from a third party, the Department of Human
Services.
The amended petition alleges that the University mistakenly credited
her completion of the Child Abuse CE course to her husband. The University
corrected the mistake and thereafter informed the State Board that Custer did indeed
complete the course on July 5, 2017. Nevertheless, the State Board refuses to correct
its records in response to the University’s correction.
The Declaratory Judgments Act provides “relief from uncertainty and
insecurity with respect to rights, status, and other legal relations, and is to be liberally
construed and administered.” 42 Pa. C.S. §7541(a). In a declaratory judgment
action, the plaintiff “must allege an interest by the party seeking relief which is
direct, substantial and present, ... and must demonstrate the existence of an actual
controversy related to the invasion or threatened invasion of one’s legal rights.”
Bowen v. Mount Joy Township, 644 A.2d 818, 821 (Pa. Cmwlth. 1994) (quoting
Pennsylvania Institutional Health Services, Inc. v. Department of Corrections, 631
2
The State Board gave her a 30-day grace period for completing the Child Abuse CE course.
Technically, she qualified as of June 30, 2017.
10
A.2d 767, 771 (Pa. Cmwlth. 1993)). The Pennsylvania Supreme Court has further
explained that
[a] declaratory judgment must not be employed to determine
rights in anticipation of events which may never occur or for
consideration of moot cases or as a medium for the rendition of
an advisory opinion which may prove to be purely academic.
Gulnac by Gulnac v. South Butler County School District, 587 A.2d 699, 701 (Pa.
1991) (emphasis added).
The amended petition presents, as fact, that the Department of State did
not timely renew Custer’s license because of an error by the University and that the
Department would only accept information from the course provider. The
Department of State did not notify her that it did not receive the course certificate
from the University, let alone that her license had expired. The Department of
Human Services’ demand for restitution is premised entirely on its belief that
Custer’s license had expired when she rendered services to the Medical Assistance
enrollees. The controversy is not hypothetical; it is real and ongoing.
The facts as pled establish an actual controversy that is direct,
substantial and present. Respondents’ preliminary objection to Count II of the
amended petition for review will be overruled.
C. Procedural Due Process
Respondents next contend that the amended petition does not state a
violation of procedural due process, and none of the individual Respondents were
involved in any of the matters complained of in the amended petition. Custer cannot
claim a procedural due process violation because the Department of State has not
issued an adjudication (or final order).
11
Custer responds that she has a protected property interest in her
occupational therapist license, which she needs to practice her profession. Khan v.
State Board of Auctioneer Examiners, 842 A.2d 936, 946 (Pa. 2004). She argues
that procedural due process guarantees a licensee notice and the opportunity to be
heard before her license authority can be extinguished for any reason. Here, the
Department of State recorded her license as expired because of the mistake of its
agent, the University, which did not inform the Department of State that Custer had
completed the Child Abuse CE course on July 5, 2017. Had it done so, Custer’s
license would have been renewed as of June 30, 2017.3 Although the Department
of State took her renewal fee, it did not tell her that it did not renew her license.
The Fourteenth Amendment to the United States Constitution provides
that no state shall “deprive any person of life, liberty, or property, without due
process of law.” U.S. CONST. amend. XIV, §1. Our Supreme Court has held that
due process of law is also guaranteed by Article I, Sections 1, 9, and 11 of the
Pennsylvania Constitution. Lyness v. State Board of Medicine, 605 A.2d 1204, 1207
(Pa. 1992). “[T]he due process standards of [the] United States and Pennsylvania
Constitutions are essentially the same.” Muscarella v. Commonwealth, 87 A.3d 966,
973 (Pa. Cmwlth. 2014).
The basic elements of procedural due process are “adequate notice, the
opportunity to be heard, and the chance to defend oneself before a fair and impartial
tribunal having jurisdiction over the case.” Commonwealth v. Turner, 80 A.3d 754,
764 (Pa. 2013). Courts examine procedural due process claims in two steps: “the
first asks whether there is a life, liberty, or property interest that the state has
3
The State Board gives licensees an additional 30 days after the expiration of their licenses to
submit documentation showing that their renewal requirements were met. Amended Petition ¶31.
See also Amended Petition, Ex. 2.
12
interfered with; and the second examines whether the procedures attendant to that
deprivation were constitutionally sufficient.” Id.
Section 15(a) of the Occupational Therapy Practice Act states, in
relevant part, as follows:
A license issued under this act shall be renewed biennially upon
payment of the renewal fee prescribed[.] It shall expire unless
renewed in the manner prescribed by the regulations of the [State
Board]. The [State Board] may provide for the late renewal of a
license upon the payment of a late fee. A late renewal of a license
shall not be granted more than four years after its expiration. A
license shall be renewed after the four-year period only by
[written examination]. The [State Board] may establish
additional requirements for license renewal designed to assure
continued competency of the applying occupational therapist or
occupational therapy assistant.
63 P.S. §1515(a) (emphasis added). The amended petition states that Custer paid
the renewal fee and completed a Child Abuse CE course. These facts demonstrate
her compliance. We reject Respondents’ contention otherwise.
Additionally, Custer is not required to establish the personal
involvement of each Respondent since she seeks injunctive and declaratory relief.
Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir. 2016). Rather, she is only required
to name an official or officials “who can appropriately respond to injunctive relief.”
Id. (quoting Hartmann v. California Department of Corrections & Rehabilitation,
707 F.3d 1114, 1127 (9th Cir. 2013)). Here, she has done so.
The amended petition states a procedural due process claim: it alleges
that Custer’s license expired without her being so informed, even though she
completed her licensing requirements and paid the fee. Her request for a hearing was
13
denied. Respondents’ preliminary objections to Counts III and IV of the amended
petition for review will be overruled.
D. Substantive Due Process
Respondents next contend that the amended petition does not state a
substantive due process claim because it was Custer’s obligation to maintain her
license. Further, they contend that none of the individual Respondents were
personally involved in the alleged constitutional violation. Nevertheless,
Respondents acknowledge that the right to pursue one’s profession is a substantive
due process right, and any restriction on that right must be rational. They argue that
Custer simply failed to comply with Section 15(a) of the Occupational Therapy
Practice Act, 63 P.S. §1515(a).
Custer responds that she was deprived of her license in an unreasonable,
arbitrary, and irrational manner. This states a substantive due process claim.
“The substantive protections of due process are meant to protect
citizens from arbitrary and irrational actions of the government.” Gresock v. City of
Pittsburgh Civil Service Commission, 698 A.2d 163, 169 (Pa. Cmwlth. 1997)
(citation omitted). Substantive due process protections afforded under the
Pennsylvania Constitution and the United States Constitution are analyzed the same
and are thus coextensive. Griffin v. Southeastern Pennsylvania Transportation
Authority, 757 A.2d 448, 452 (Pa. Cmwlth. 2000).
Article I, Section 1 of the Pennsylvania Constitution provides: “All men
are born equally free and independent, and have certain inherent and indefeasible
rights, among which are those of enjoying and defending life and liberty, of
acquiring, possessing and protecting property and reputation, and of pursuing their
own happiness.” PA. CONST. art. I, §1. This section, like the Fourteenth Amendment
14
to the United States Constitution, U.S. CONST. amend XIV, guarantees persons in
this Commonwealth certain inalienable rights.
“The constitutional analysis applied to the laws that impede upon these
inalienable rights is a means-end review, legally referred to as a substantive due
process analysis.” Nixon v. Commonwealth, 839 A.2d 277, 286 (Pa. 2003). Where
a law restricts an important, but not fundamental right, courts apply a rational basis
test. Id. at 287. Under that standard, the law being examined “must not be
unreasonable, unduly oppressive or patently beyond the necessities of the case, and
the means which it employs must have a real and substantial relation to the objects
sought to be attained.” Id. (citation omitted) (footnote omitted). Generally, the right
to pursue a particular profession is not a fundamental right. Id. at 288. Thus, the
rational basis test applies.
The amended petition states that although Custer followed the State
Board’s directions for a license renewal, it did not renew her license. Moreover, her
request for a hearing was denied and led to the Department of Human Services’
demand for a return of fees she earned while allegedly working with an “expired”
license. These allegations of arbitrary conduct state a substantive due process claim.
Additionally, Custer is not required to establish the personal involvement of each
Respondent since she seeks injunctive and declaratory relief. Parkell, 833 F.3d at
332. Therefore, Respondents’ preliminary objections to Counts V and VI of the
amended petition will be overruled.
E. Equal Protection
Respondents next contend that the amended petition does not state an
equal protection claim. They claim that the facts alleged therein do not show that
Custer was treated differently than others similarly situated to her.
15
The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution provides, in relevant part: “No State shall ... deny to any
person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend.
XIV, §1. The corresponding portions of the Pennsylvania Constitution provide as
follows:
All men are born equally free and independent, and have certain
inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing
and protecting property and reputation, and of pursuing their own
happiness.
PA. CONST. art. I, §1.
Neither the Commonwealth nor any political subdivision thereof
shall deny to any person the enjoyment of any civil right, nor
discriminate against any person in the exercise of any civil right.
PA. CONST. art. I, §26. In short, the guarantee of equal protection under the law does
not require the government to treat all persons identically, but assures that similarly
situated persons will be treated alike. Garrison v. Department of Corrections, 16
A.3d 560, 564 (Pa. Cmwlth. 2011).
The amended petition states that the Department of State has a policy
of permitting licensees to correct discrepancies in their license renewal applications
within 30 days of the expiration of the license. Amended Petition ¶29. It also states
the Department of State has a policy of renewing a license as of the date that the
licensee corrects the discrepancy in the licensee’s application. Id. ¶145. The
amended petition alleges that individual Respondents “have renewed licenses as of
the date that the licensee corrects the discrepancy in the licensee’s application” and
that Custer is “similarly situated to such licensees.” Id. ¶¶135-36. Custer claims that
16
she was denied equal protection because she was not able to have her license
corrected eight months after she discovered the error. ¶¶ 39-41, 136. Id.
The amended petition alleges that the Department of State has a policy
of renewing a license as of the date the licensee corrects a discrepancy and that the
Department has learned of the University’s error in not reporting Custer’s
completion of the Child Abuse CE course. Nevertheless, the Department refuses to
correct its record. However, the amended petition does not allege that other licensees
were able to have their license records corrected eight months after the mistake
occurred. The amended petition makes only a conclusory allegation that there were
other licensees “similarly situated” to Custer. This is insufficient to state an equal
protection claim.
Respondents’ preliminary objections to Counts VII and VIII of the
amended petition for review will be sustained.
F. Injunctive Relief
Respondents’ sixth contention is that Custer is not entitled to injunctive
relief4 because she had the obligation to comply with the regulations to retain her
right to practice her profession. Custer responds that she did comply with the
regulations.
4
An injunction is a court order that can prohibit or command virtually any type of action. It is an
extraordinary remedy that should be issued with caution and “only where the rights and equity of
the plaintiff are clear and free from doubt, and where the harm to be remedied is great and
irreparable.” 15 STANDARD PENNSYLVANIA PRACTICE 2d §83:2 (2005). The required elements of
injunctive relief are: a clear right to relief; an urgent necessity to avoid an injury that cannot be
compensated in damages; and a finding that greater injury will result from refusing, rather than
granting, the relief requested. Id. §83:19. Even where the essential prerequisites of an injunction
are satisfied, the court must narrowly tailor its remedy to abate the injury. John G. Bryant Co.,
Inc. v. Sling Testing & Repair, Inc., 369 A.2d 1164, 1167 (Pa. 1977). The power to grant or to
refuse an injunction “rests in the sound discretion of the court under the circumstances and the
facts of the particular case....” Rick v. Cramp, 53 A.2d 84, 88 (Pa. 1947).
17
Custer seeks a declaration that her license be renewed as of July 5,
2017; an injunction prohibiting Respondents from initiating or aiding any
administrative, disciplinary, civil, or criminal action against her related to the
expired status of her license; and an injunction preventing the Department of Human
Services from seeking the return of payments she received for services she rendered
during a period of time she should have been licensed. Respondents do not address
those facts. Instead, they assert, in conclusory fashion, that Custer did not comply
with unspecified regulations. The amended petition asserts facts supporting Custer’s
claim that she did everything required for a license renewal as of July 5, 2017, and
we must accept those facts as true. Respondents’ preliminary objection to Count IX
of the amended petition for review will be overruled.
V. Conclusion
For all the above reasons, Respondents’ preliminary objections to
Counts VII and VIII of the amended petition for review are sustained, and the
remaining preliminary objections are overruled.
_____________________________________
MARY HANNAH LEAVITT, President Judge
Judge Covey did not participate in the decision in this case.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicole L. Custer, :
Petitioner :
:
v. : No. 564 M.D. 2018
:
Commonwealth, Department of :
State, Bureau of Professional and :
Occupational Affairs, Kathy :
Boockvar, Kalonji Johnson, Ian :
Harlow, State Board of Occupational :
Therapy Education and Licensure, :
Kerri Hample, Joanne M. Baird, :
Carolyn M. Gatty, Christine L. :
Hischmann, Edward J. Mihelcic, :
Commonwealth, Department :
of Human Services, and Teresa :
D. Miller, :
Respondents :
ORDER
AND NOW, this 29th day of October, 2020, the preliminary objections
filed by the Department of State, Bureau of Professional and Occupational Affairs;
Secretary of State, Kathy Boockvar; Kalonji Johnson; Ian Harlow; the State Board
of Occupational Therapy Education and Licensure; Kerri Hample; Joanne M. Baird;
Carolyn M. Gatty; Christine L. Hischmann; Edward J. Mihelcic; the Department of
Human Services; and Secretary of Human Services, Teresa D. Miller (collectively,
Respondents) are SUSTAINED as to Counts VII and VIII of the Amended Petition
for Review and are OVERRULED as to Counts I, II, III, IV, V, VI, and IX of the
Amended Petition for Review.
Respondents are directed to file an answer to the remaining claims in
the Amended Petition for Review (Counts I, II, III, IV, V, VI, and IX) within 30
days of the date of this Order.
_____________________________________
MARY HANNAH LEAVITT, President Judge