IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joel Poskin, : Appellant : : v. : No. 2244 C.D. 2012 : Argued: September 9, 2013 State Board of Nursing of the : Commonwealth of Pennsylvania : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: October 30, 2013 Joel Poskin appeals from the order of the Court of Common Pleas of Dauphin County, which dismissed his complaint seeking an order (1) declaring that the State Board of Nursing s practices and procedures regarding disciplinary records are in violation of the Pennsylvania Constitution, (2) requiring expungement of a citation from his disciplinary record and (3) ordering the Board to implement administrative procedures to effectuate such an expungement. Poskin is a registered nurse licensed in the Commonwealth of Pennsylvania pursuant to the Professional Nursing Law, Act of May 22, 1951, P.L. 317, as amended, 63 P.S. 211-225.5. The Board is the administrative agency responsible for the licensure and discipline of members of the nursing profession in

Pennsylvania. At some time in 2008, Poskin moved his residence and allegedly notified the Board of the change in his mailing address. The Board mailed a license renewal application to Poskin s original residence. Poskin did not receive the application and, consequently, failed to renew his nursing license in a timely manner, resulting in the lapse of his license. In October 2010, Poskin became aware that his license had lapsed when his employer terminated his employment for failure to have a valid license. The Board issued a citation to Poskin for practicing nursing without a license for 12 months and imposed a $1000 fine. Poskin did not contest the citation and paid the fine, resulting in reinstatement of his license. In June 2011, Poskin filed an administrative petition with the Board seeking to have the citation expunged from his licensing disciplinary record. By order dated July 1, 2011, the Board denied the petition because there is no procedure in the Professional Nursing Law or the Board s regulations authorizing the Board to remove disciplinary actions, such as a citation, from past disciplinary history. Reproduced Record (R.R.) at 15. In March 2012, Poskin filed a complaint in the court of common pleas asserting a violation of his rights under the Pennsylvania Constitution. Poskin argued that the Board s failure to differentiate between citations issued for failure to renew a license (administrative citations) and citations resulting from the provision of substandard nursing care or willful misconduct, as well as the Board s failure to provide a procedure for expungement of citations violated his rights to the enjoyment of life and liberty, of acquiring, possessing and protecting property under Article I, Section 1 of the Pennsylvania Constitution, Pa. Const. art. I, 1. Poskin also asserted that the Board s denial of his petition was not 2

reasonably related to the Commonwealth s interest in regulating professional nurses to ensure quality health care. Poskin sought an order declaring the Board s practices and procedure unconstitutional, requiring the Board to implement administrative procedures to effectuate the expungement of disciplinary records and requiring the Board to expunge his disciplinary record. The Board filed preliminary objections asserting failure to state a cause of action upon which relief can be granted and a lack of jurisdiction. Following briefing and oral argument, common pleas sustained the Board s preliminary objections. In its opinion in support of its decision written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(a), common pleas concluded that Poskin had not stated a cause of action because he failed to attack the maintenance of nursing disciplinary histories on reputational and due process grounds. Common pleas also held that to the extent that Poskin s complaint is an appeal of disposition of his administrative petition, jurisdiction properly lies with the Commonwealth Court rather than the court of common pleas. Finally, in a footnote, common pleas rejected the Board s argument that Poskin s complaint was a de facto request for mandamus relief. This appeal followed. Poskin argues that common pleas erred in concluding that it lacked jurisdiction. Poskin also challenges common pleas determination that he failed to set forth a valid claim for deprivation of rights secured by the Pennsylvania Constitution. Poskin asserts that his complaint could not be considered an appeal from the Board s order because jurisdiction over constitutional claims is vested in the court of common pleas. The Board argues that Poskin s complaint is an 3

improper collateral attack upon its prior determination to issue a citation to Poskin for practicing nursing without a license and its denial of his petition for relief requesting expungement. The Board also argues that Poskin cannot circumvent the Board s denial of Poskin s petition for relief by filing a declaratory judgment action rather than filing an appeal from the Board s decision because an action pursuant to the Declaratory Judgments Act, 42 Pa. C.S. 7531-7541, does not lie where the matter is within the exclusive jurisdiction of a tribunal other than a court. 42 Pa. C.S. 7541(c)(2). According to the Board, neither the court of common pleas nor this Court sitting in its original jurisdiction would have jurisdiction to consider Poskin s claim that the Board erred in refusing to grant his request to expunge his nursing record. Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. 761(a)(1), grants the Commonwealth Court original jurisdiction over all civil proceedings brought against the Commonwealth government, with certain exceptions which are not pertinent to this case. 1 Section 102 of the Judicial Code, as amended, 42 Pa. C.S. 102, defines Commonwealth government as: The government of the Commonwealth, including the courts and other officers or agencies of the unified judicial system, the General Assembly and its officers and agencies, the Governor, and the departments, boards, commissions, authorities and officers and agencies of the Commonwealth, but the term does not include any political subdivision, municipal or other local authority, 1 Section 761(a)(1), as amended, 42 Pa. C.S. 761(a), reads in relevant part: (a) General Rule. - The Commonwealth Court shall have original jurisdiction of all civil actions or proceedings: (1) Against the Commonwealth government, including any officer thereof, acting in his official capacity... 4

or any officer or agency of any such political subdivision or local authority. The State Board of Nursing is a departmental administrative board in the Department of State. See Section 202 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. 62; Section 2.1 of the Professional Nursing Law, 63 P.S. 212.1, added by Section 2 of the Act of July 3, 1974, P.L. 432. 2 Therefore, common pleas lacked jurisdiction because, with certain exceptions not relevant here, suits brought against the Commonwealth must originate in this court s original jurisdiction. 42 Pa. C.S. 761(a)(1). The Court is authorized to order the Chief Clerk to transfer the matter to our original jurisdiction pursuant to 42 Pa. C.S. 5103(c). 3 See In re: Condemnation by the Commonwealth of Pa., Dep t of Transp., of Right of Way, for Legislative Route 58018, 375 A.2d 1364, 1368 (Pa. Cmwlth. 1977) (transferring matter from court s appellate jurisdiction to its original jurisdiction); see also DARLINGTON, ET AL., PENNSYLVANIA APPELLATE PRACTICE (2012-13) 10:10 (stating that Section 5103 of the Judicial Code authorizes transfer of cases within divisions of a court ). 2 Pursuant to the organizational chart of the Department of State, the State Board of Nursing is under the Bureau of Professional and Occupational Affairs. 4 Pa. Code 9. 3 Section 5103(c) provides: If an appeal or other matter is taken to, brought in, or transferred to a division of a court to which such matter is not allocated by law, the court shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper division of the court, where the appeal or other matter shall be treated as if originally filed in the transferee division on the date first filed in a court or magisterial district. 5

Having assumed original jurisdiction we will resolve the Board s preliminary objections. 4 The Board asserts that Poskin s complaint is an improper collateral attack on a decision by a state administrative agency denying his request to expunge his record for which only the Commonwealth Court has jurisdiction. Pursuant to the Declaratory Judgments Act, declaratory relief may be granted for the purpose of affording relief from uncertainty and insecurity regarding legal rights, status and other relations. Cornerstone Family Servs. v. Bureau of Prof'l & Occupational Affairs, 802 A.2d 37, 39 (Pa. Cmwlth. 2002). A proceeding for a declaratory judgment is barred, however, where the underlying matter is within the exclusive jurisdiction of a tribunal other than a court. 42 Pa. C.S. 7541(c)(2). Where there is an administrative remedy available, this court will not exercise its original jurisdiction and provide for declaratory relief. Costanza v. Dep t of Envtl. Res., 606 A.2d 645 (Pa. Cmwlth. 1992). Moreover, the doctrine of administrative finality precludes a collateral attack of an administrative action where the party aggrieved by that action foregoes his statutory appeal remedy. Dep t of Envtl. Prot. v. Peters Twp. Sanitary Authority, 767 A.2d 601 (Pa. Cmwlth. 2001). By filing his complaint seeking to have his disciplinary record expunged, Poskin sought to accomplish the same result as in the proceeding before the Board without appealing the Board s denial of the administrative petition to this Court. A declaratory judgment action is not the proper method to challenge the Board s denial of Poskin s administrative petition seeking expungement; 4 In considering preliminary objections, we must accept as true all well-pled allegations of material fact and all inferences reasonably deducible from those allegations. City of Phila. v. Rendell, 888 A.2d 922 (Pa. Cmwlth. 2005). We need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. Id. 6

Poskin should have filed a statutory appeal of the denial of the administrative petition with this court. Further, Poskin s assertion of constitutional grounds as the basis for filing the declaratory judgment action does relieve him of the requirement to follow adequate and mandatory administrative procedures. Larry Pitt & Assocs., P.C. v. Butler, 785 A.2d 1092, 1099 (Pa. Cmwlth. 2001) (stating that [a] party cannot avoid the requirement to exhaust administrative remedies merely by raising a constitutional challenge to the validity of a statute ). For the foregoing reasons, we vacate the order of Court of Common Pleas of Dauphin County, we order the Chief Clerk to transfer this matter to our original jurisdiction and upon consideration of the Board s preliminary objections, the preliminary objections are sustained and the complaint is dismissed. 5 BONNIE BRIGANCE LEADBETTER, Judge 5 Even if we considered Poskin s constitutional arguments, he could not prevail. As part of the license renewal application, nurses are required to verify that they have complied with the continuing education requirement mandated by Section 12 of the Professional Nursing Law, 63 P.S. 222, and to disclose any discipline imposed by a state licensing board in the previous biennial period and any criminal charges pending or criminal conviction, plea of guilty or nolo contendere, or admission into a probation without verdict or accelerated rehabilitative disposition during the previous biennial period. See 49 Pa. Code 21.29(c)(3) and (4). The collection of this information is rationally related to the Board s interest in regulating the nursing profession and ensuring quality healthcare. A failure to renew a nursing license frustrates the Board s purpose. The levying of a fine and the entry and maintenance of a citation on the disciplinary record of a non-compliant nurse acts as a deterrent against repeated failures to comply with the license renewal requirements. Poskin has cited no authority for his claim that the Constitution of Pennsylvania requires a procedure for expungement of valid convictions on disciplinary citations, whether of an administrative nature or otherwise. Where the maintenance of such records serves a legitimate governmental interest, we discern no protected right to expungement. 7

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joel Poskin, : Appellant : : v. : No. 2244 C.D. 2012 : State Board of Nursing of the : Commonwealth of Pennsylvania : O R D E R AND NOW, this 30 th day of October 2013, the order of the Court of Common Pleas of Dauphin County is hereby VACATED. The Chief Clerk is ordered to transfer this matter to our original jurisdiction. The preliminary objections of the State Board of Nursing of the Commonwealth of Pennsylvania to the complaint filed by Joel Poskin are hereby SUSTAINED and the complaint is dismissed. BONNIE BRIGANCE LEADBETTER, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joel Poskin, : Appellant : : v. : No. 2244 C.D. 2012 : Argued: September 9, 2013 State Board of Nursing of the : Commonwealth of Pennsylvania : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE BROBSON FILED: October 30, 2013 I commend the majority for crafting an efficient and economical solution to this matter. But as much as I would like to agree with the majority s tack, I cannot and, therefore, must respectfully dissent. As the majority correctly notes, Joel Poskin (Poskin) should have commenced his action against the State Board of Nursing (Board s) in this Court and not the court of common pleas. 42 Pa. C.S. 761(a)(1) (vesting original jurisdiction over actions against Commonwealth Court in this Court). The trial court dismissed Poskin s lawsuit with prejudice on preliminary objections. Poskin, thereafter, filed a timely notice of appeal, invoking this Court s appellate jurisdiction. The trial court in this case erred in dismissing the action. Instead, the trial court should have transferred the action to this Court s original

jurisdiction pursuant 42 Pa. C.S. 5103(a). This statutory provision and Pennsylvania Rule of Appellate Procedure 751(a), cited by the majority, deal with erroneously-filed matters. Rather than quash or dismiss matters filed in a tribunal that lacks jurisdiction, these provisions mandate that the tribunal must instead transfer the erroneously-filed matter to the proper tribunal. The majority, however, goes a step further and relies on these provisions to remedy the clear error of the trial court by transferring this appeal to our original jurisdiction and resolving the Board s preliminary objections. To invoke properly these provisions, however, this Court would have to conclude that this appeal has been erroneously filed in our Court. But the majority draws no such conclusion, and no party has challenged this Court s jurisdiction to hear this matter. See Pa. R.A.P. 741(a) (providing that failure of parties to object to appellate court jurisdiction perfects appellate court s jurisdiction unless otherwise ordered). As such, this appeal is not erroneously before us, such that a transfer is authorized by, or even appropriate under, the cited provisions of Judicial Code and Rules of Appellate Procedure. The majority s tack, however, is not without support in case law. In Burkett v. Frank, 841 A.2d 646 (Pa. Cmwlth. 2004), the plaintiff appealed a court of common pleas denial of his petition to the Pennsylvania Superior Court. The Superior Court transferred the appeal to this Court. Determining that the plaintiff s petition to the common pleas court, as originally captioned and pleaded was within our original jurisdiction, this Court transferred the appeal to our original jurisdiction and resolved the matter as if it had been originally commenced in our Court. Burkett, 841 A.2d at 648. The case cited by the majority, In re: Legislative Route 58018, 375 A.2d 1364 (Pa. Cmwlth. PKB-2

1977), took a similar tack, relying not on any rule or statute, but on the prolonged nature of the pending litigation and an implied desire to bring the matter to conclusion. By contrast, in Commonwealth v. Snyder, 829 A.2d 783 (Pa. Cmwlth. 2003), a plaintiff appealed to this Court a court of common pleas decision dismissing his petition for habeas corpus. After deciding to exercise appellate jurisdiction due to the lack of any objection to the Court s jurisdiction over the appeal and in the interest of judicial economy, the Court held that the trial court did not err when it ruled that it lacked subject matter jurisdiction over the petition. Rather than dismissing the petition, however, we held that the trial court should have transferred the petition to this Court s original jurisdiction as a civil action against the Commonwealth Government pursuant to 42 Pa. C.S. 5103(a). To remedy that error, the Court, in the interest of judicial economy, affirmed the trial court s decision to dismiss the petition without prejudice to the plaintiff to file a petition for review in this Court s original jurisdiction within 30 days of the Court s order. Snyder, 829 A.2d at 785-86. In a footnote, we noted: The alternative would be to remand to the court of common pleas and direct the transfer of the petition to this Court in our original jurisdiction. Id. at 785 n.3. To reiterate, I do not challenge the wisdom of the majority s approach, which is similar in kind to that taken by this Court previously. Instead, I question only the majority s reliance on a rule and a statute, neither of which appear on their face to apply in this situation. Under circumstances such as these, I prefer either of the alternative approaches outlined by this Court in Snyder: (1) vacate and remand with direction to the trial court that it transfer the PKB-3

erroneously-filed action to this Court s original jurisdiction pursuant to Rule 751(a) of the Pennsylvania Rules of Appellate Procedure and 42 Pa. C.S. 5103(a); or (2) affirm the trial court s order without prejudice to Poskin to file a petition for review in this Court s original jurisdiction. P. KEVIN BROBSON, Judge PKB-4