Does Act 53 of 2020 retroactively apply to a medical professional licensee’s suspension and reinstatement?
Almusa v. State Bd. of Medicine, 298 A.3d 547 (Pa. Cmwlth. 2023), allocatur granted Apr. 3, 2024, appeal docket 25 MAP 2024
In this case, the Pennsylvania Supreme Court will consider whether Section 3113(f) of the Act of July 1, 2020, P.L. 575 (Act 53), 63 Pa. C.S. § 3113(f), which redefined how licensing boards consider criminal offenses, retroactively applies to a medical professional licensee’s suspension and reinstatement.
Section 3113(f) of Act 53, enacted in 2020, provides that:
(f) Drug trafficking.–Notwithstanding any provision of law to the contrary, the provisions of the respective practice acts relating to felony drug convictions under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or a conviction for an offense under the laws of another jurisdiction which, if committed in this Commonwealth, would be a felony under the Controlled Substance, Drug, Device and Cosmetic Act, shall only apply to an individual who has been convicted of a drug trafficking offense. The licensing board or licensing commission may show, by a preponderance of the evidence, that the amount or weight of the controlled substance involved in a conviction meets the requirements for a drug trafficking offense.
Commonwealth Court summarized the relevant factual background as follows:
Licensee was licensed to practice medicine as a radiologist since 2003. Reproduced Record (R.R.) at 34a. On June 27, 2018, Licensee pleaded guilty to one count of distribution of controlled substances, in violation of federal drug laws, as well as conspiracy and fraud, when he unlawfully distributed Vicodin to persons who were not patients and took the drugs himself. R.R. at 34a-36a. The parties agree, and the Board affirmed, that Licensee’s federal drug conviction qualifies as a felony drug conviction under Pennsylvania’s Drug Act. Id. at 36a. The parties also agreed, and the Board affirmed, that Licensee’s conviction does not constitute a drug trafficking offense as that term is defined in Section 3113(i) of Act 53 and referenced in Section 3113(f) of Act 53. Id. at 9a.
On July 25, 2019, the Board issued a Notice and Order of Automatic Suspension to Licensee, based on his conviction of a felony drug offense, and suspended his license effective August 15, 2019, “for a period of at least 10 years from the date of conviction under authority of sections 40(b)6 and 43(b) of the Act.” R.R. at 37a. The Board advised Licensee that his response and any hearing “shall be limited to” whether Licensee was convicted of the offense and whether the offense qualifies as a felony drug conviction under the Drug Act. Id. at 38a.
After receiving no response or request for a hearing from Licensee, on November 26, 2019, the Board issued a Final Order of Automatic Suspension. R.R. at 29a-32a. In this order, the Board confirmed that Licensee had proper notice of the July 25, 2019 Notice, Licensee failed to respond or request a hearing on his automatic suspension, and any such hearing would be limited to the two issues regarding Licensee’s conviction. Id. Licensee does not dispute his conviction or that it qualifies as a felony drug conviction under the Drug Act. Licensee does not dispute, and the Board confirmed, that Licensee did not respond to the Board’s July 25, 2019 Notice, and that he did not appeal the Board’s November 26, 2019 Final Order. Id. at 8a. In addition, Licensee does not dispute that his automatic suspension was lawful when entered on November 26, 2019. Id.
On April 8, 2021, after Section 3113(f) of Act 53 became effective on December 28, 2020, Licensee filed a petition for reinstatement with the Board. R.R. at 8a. After considering arguments from the parties and without taking any additional evidence, the Board issued a Final Memorandum Order dated March 17, 2022. Id. at 8a-12a. The Board granted Licensee’s motion to determine that his conviction does not meet the definition of drug trafficking in Act 53, but it denied Licensee’s reinstatement based on its conclusion that Section 3113(f) of Act 53 does not apply retroactively to permit Licensee’s reinstatement, when his license was suspended a year before the effective date of Section 3113(f).
Although Licensee agreed that his suspension was lawful when imposed, the Board viewed Licensee’s request as seeking “termination of the automatic suspension” imposed on November 26, 2019, as well as seeking reinstatement of his license. R.R. at 8a. The Board summarized the relevant facts and recognized that the narrow issue presented focused on the effect of Section 3113(f) of Act 53 on Licensee’s suspension and reinstatement. Id. at 9a. The Board concluded that it “is precluded by Pennsylvania statute to construe [S]ection 3113[(f)] of Act 53 as retroactive unless such retroactive effect is clearly and manifestly intended by the General Assembly.” Id. The Board concluded that Section 3113(f) of Act 53 contains no such manifestation of retroactivity. Id. The Board concluded that “prospectivity is the default rule” unless the General Assembly has clearly expressed its intent to disrupt settled expectations, citing in support Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). R.R. at 9a. The Board rejected Licensee’s argument that Section 3113(f) of Act 53 should apply to his reinstatement, as a distinct and separate matter from his suspension, reasoning that this argument would require the Board to assume the General Assembly chose a “ ‘surprisingly indirect route to convey an important and easily expressed message,’ ” again citing Landgraf. R.R. at 9a. The Board concluded that
[f]urthermore, retroactive application would have the practical effect of reversing or terminating all automatic suspensions that resulted from a conviction other than drug trafficking defined by Act 53. It is nearly beyond comprehension that the legislature would not clearly provide for the reversal or termination of decades of lawfully entered automatic suspensions entered prior to Act 53. Therefore, the Board, without clear legislative direction authorizing it to vacate [Licensee’s] automatic suspension, declines to take such action.
Id. at 10a.
The Board addressed an order of the State Board of Osteopathic Medicine for a different physician, that Licensee attached to his petition for reinstatement, and rejected the implicit suggestion that it should be relied upon for precedential or persuasive value in Licensee’s case. R.R. at 10a. The Board rejected this implication because the laws governing the Board and the State Board of Osteopathic Medicine are dissimilar in several ways, including the automatic suspension provisions. Id.
Slip op. at 3-6. In reaching its decision, the Board addressed two unreported Commonwealth Court decisions that the Board found “firmly address the automatic suspension provisions of the respective practice acts,” which Commonwealth summarized as follows:
In Khan v. Bureau of Professional and Occupational Affairs, State Board of Medicine, 2017 WL 5580062 (Pa. Cmwlth., No. 1047 C.D. 2016, filed November 21, 2017), the Court considered a licensee’s suspension for a felony drug conviction under Section 40(b) of the Act, the same section that governs Licensee’s suspension here. Khan, slip op. at 2. The licensee in Khan argued that the Board erred in denying him a hearing before suspending his license, and erred when it concluded it lacked discretion to impose a suspension of less than 10 years. Id., slip op. at 2-3. The Court affirmed the Board and denied the licensee’s request for a hearing, because a hearing is not required when no evidentiary facts are at issue, citing Denier v. State Board of Medicine, Bureau of Professional and Occupational Affairs, 683 A.2d 949 (Pa. Cmwlth. 1996). Khan, slip op. at 2. The Court also denied the licensee’s request that the Board hold a hearing to exercise its discretion over the length of his suspension, relying on the plain language of Section 43(b) of the Act that prohibits a licensee from seeking reinstatement until 10 years have elapsed from his conviction. Khan, slip op. at 2-3. The Court concluded that, under the facts presented and the plain language of Section 43(b) of the Act, “[t]he Board lacks discretion to impose a suspension for a period of less than [10] years.” Khan, slip op. at 3.
The Board then contrasted the result in Acri v. Bureau of Professional and Occupational Affairs, State Board of Osteopathic Medicine, 2018 WL 297087 (Pa. Cmwlth., No. 856 C.D. 2017, filed January 5, 2018). In Acri, the State Board of Osteopathic Medicine suspended the license of the licensee who was convicted of felony drug charges under Section 14(b) the Osteopathic Medical Practice Act (Osteopathic Act), 63 P.S. § 271.14(b). Acri, slip op. at 1. Although 1 section of the Osteopathic Act required a licensee to wait 10 years for reinstatement, another section of the Osteopathic Act suggested that a licensee must wait only 5 years for reinstatement, and another section gave no time limit for reissuing a suspended license. Id. The Court rejected the licensee’s argument that he was entitled to a hearing before his suspension was imposed because no facts about his conviction were at issue. Id. The Court concluded, however, that the relevant sections of the Osteopathic Act governing the length of licensee’s suspension were “circular and confusing,” and modified the board’s order “insofar as it imposed a mandatory [5-] or [10-]year suspension” on the licensee. Acri, slip op. at 4. The Court directed that “any reissuance request from a suspension” for felony drug convictions “shall be processed and reviewed” under the section of the Osteopathic Act giving the board discretion over the duration of a licensee’s suspension. Id. Here, the Board concluded that, unlike the provision in the Osteopathic Act giving the board discretion over the duration of a licensee’s suspension in Acri, the Act provided no such discretion to the Board, and that a 10-year waiting period was required by the mandatory language in Section 43(b) of the Act.
Slip op. at 6-8.
Dr. Almusa argued that the automatic suspension the Board imposed under Section 40(b) of the Act should be viewed as distinct from the 10-year waiting period for reinstatement under Section 43(b) of the Act because Section 40(b) imposes no minimum or maximum length on an automatic suspension, the length of an automatic suspension is determined by when a licensee seeks reinstatement under Section 43(b) of the Act, which is a separate, official Board action. Dr. Almusa further argued that the Board should have applied Section 3113(f) of Act 53 to his suspension, because he is seeking prospective, not retroactive, application of that section to his reinstatement, contending that:
…Section 3113 of Act 53, by its stated terms, applies to “official acts and matters, including disciplinary matters, related to the issuance of licenses” by the Board, “beginning on or after December 28, 2020.” Licensee argues that the Board’s denial of his reinstatement was an official act, relating to the issuance of his license, that occurred after Section 3113(f) of Act 53 became effective, and should be interpreted to eliminate the 10-year waiting period for a felony drug conviction that is not a drug trafficking conviction. Licensee argues that the intent of the Legislature when it enacted Section 3113(f) of Act 53 was to treat felony drug convictions that are not drug trafficking convictions less harshly than in the past. Licensee argues that the Board erred by failing to grant him a hearing on his reinstatement so that Section 3113(f) of Act 53 could be properly applied.
Slip op. at 10. The Board countered that Section 3113(f) of Act 53 should not be applied retroactively to Dr. Almusa’s conviction or suspension because each occurred before the effective date of Act 53 and Act 53 “lacks clear manifestation to be applied retroactively, and absent such direction it may not be used to challenge the duration of Licensee’s suspension.” Slip op. at 11. The Board further argued that “retroactive application of automatic suspension provisions was addressed by this Court in the 1980s when the Act and the Pharmacy Act were amended to impose suspensions based on drug convictions, a converse scenario to the enactment of Act 53.” Id.
Commonwealth Court concluded that Sections 40(b) and 43(b) of the Medical Practice Act of 1985, 63 P.S. §§ 422.40(b) and 422.43(b), impose a minimum 10-year automatic suspension for a felony drug conviction and do not require distinct and separate actions by the Board. The court reasoned that:
… Although Section 40(b) of the Act does not contain a minimum or maximum suspension for a licensee convicted of a felony drug crime, Section 43(b) of the Act clearly does. The plain language of these related sections of the Act provide that Licensee was subject to a 10-year suspension for his felony drug conviction, when the Board imposed the suspension in 2019, before the enactment of Act 53. Licensee does not dispute that his suspension was valid when imposed in 2019. The Board twice informed Licensee that his license was suspended for at least 10 years under Sections 40(b) and 43(b) of the Act. See R.R. at 30a-31a, 37a-38a. We may not disregard the plain language of Sections 40(b) and 43(b) of the Act in an attempt to pursue the spirit of Section 3113(f) of Act 53. Crown Castle NG East LLC, 234 A.3d at 674.
Further, our Court has determined that the Board lacks discretion to impose a suspension other than a 10-year suspension under the Act, when a licensee is convicted of a felony drug crime. In Galena, our Court considered the suspension of a licensee convicted of a felony drug offense under the Act, and specifically reviewed Sections 40(b) and 43(b) of the Act, as both sections related to his suspension. Galena, 551 A.2d at 677 n.1. The Court first recited that Section 40(b) of the Act provided for the automatic suspension of a licensee’s license for a felony drug conviction, and then explained as follows.
It should be noted here that Section 43(b) of the [ ] Act, [ ] governing reinstatement, sets out the minimum term for suspension and provides in applicable part:
Any person whose license, certificate or registration has been suspended or revoked because of a felony conviction under [the Drug Act], … may apply for reinstatement after a period of at least ten years has elapsed from the date of the conviction. (Footnote omitted.)
Id.
Our Court has reviewed Sections 40(b) and 43(b) of the Act regarding suspensions, and determined that Section 43(b) “sets out the minimum term for suspension.” Galena, 551 A.2d at 677 n.1. The enactment of Act 53 does not change our interpretation of the relationship between Sections 40(b) and 43(b) of the Act. We have repeatedly held that the Board “does not have the discretion under the [ ] Act to suspend [a licensee’s] license for any period less than [10] years.” Id. at 678. See also Denier, 683 A.2d at 953 (“The Board has no discretion to impose less than a [10]-year suspension for a felony conviction [under the Act]. …”); and Khan, slip op. at 3 (“The statutory language of Section 43(b) of the [Act] is clear and free from ambiguity. The Board lacks discretion to impose a suspension for a period of less than [10] years.”). We agree with the Board that Acri (Pa. Cmwlth., No. 856 C.D. 2017, filed January 5, 2018), is distinguishable from this case, because the length of the suspension imposed under the Osteopathic Act was ambiguous in Acri, but the length of the suspension imposed under the Act here is not.
Slip op. at 12-14.
Commonwealth Court further held that Section 3113(f) of Act 53 did not apply retroactively to the suspension of Dr. Almusa’s medical license, opining that:
Here, the Legislature expressed that Section 3113 of Act 53 was to apply prospectively, not retroactively, when it provided that the addition of Section 3113 “shall apply to official acts and matters, including disciplinary matters, related to the issuance of licenses, certificates, registrations or permits by licensing boards or licensing commissions beginning on or after December 28, 2020.”
Slip op. at 14. Thus, the court concluded:
Based on the Legislature’s clear directive, we decline to apply Section 3113(f) of Act 53 to the imposition of Licensee’s suspension, when his suspension, including the length of suspension, was imposed before Act 53 became effective. “ ‘[A] statute does not operate retrospectively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.’ ” Morris, 537 A.2d at 95 (quoting Gehris v. Department of Transportation, 471 Pa. 210, 369 A.2d 1271, 1273 (1977)). Because the Board’s official act imposing Licensee’s suspension under Sections 40(b) and 43(b) of the Act occurred in 2019, before Section 3113 of Act 53 became effective, the amendments in Section 3113(f) of Act 53 limiting professional discipline to felony drug trafficking convictions do not apply to Licensee.
Slip op. at 14-15.
Dissenting, President Judge Cohn Jubelirer, joined by Judge McCullough and Judge Wallace, would hold that the Board must consider Dr. Almusa’s Reinstatement Application. Emphasizing that Dr. Almusa “does not challenge the validity of this suspension or seek to vacate or expunge it from his record” but rather “seeks to have his petition to terminate the automatic suspension and reinstate his license (Reinstatement Application) considered in accordance with the law in effect at the time he filed his Reinstatement Application,” Slip op. at RCJ-1 (emphasis in original), the dissent reasoned:
Various sections in the Act work together to establish the processes for the suspension of a license and the subsequent reinstatement of that license if the Board concludes reinstatement is appropriate. At issue here are the Act’s penalty provisions, the automatic suspension provision, and the reinstatement provision for automatically suspended licenses. Importantly, whether an automatic license suspension occurs in the first instance, and whether the 10-year waiting period to seek reinstatement of that license applies, are predicated on a felony drug conviction. This has not changed. What has changed is the General Assembly’s definition of which felony drug convictions are subject to the penalty provisions. The provision now reads, “[n]otwithstanding any provision of law to the contrary, the provisions of the respective practice acts relating to felony drug convictions under the [Drug Act] shall only apply to an individual who has been convicted of a drug trafficking offense.” 63 Pa.C.S. § 3113(f). This change, set forth in Section 3113(f), is applicable to official actions taken by the Commonwealth’s licensing boards after December 28, 2020.
Slip op. at RCJ-3 – RCJ-4 (emphasis in original). Addressing the precedent relied on by the Majority, the dissent opined:
The Majority relies on two cases in which this Court has read these two provisions together to conclude that there is an automatic, minimum 10-year suspension for a felony drug conviction, to conclude that any consideration of reinstatement before 10 years is prohibited. Khan v. Bureau of Pro. & Occupational Affs., State Bd. of Med., 2017 WL 5580062 (Pa. Cmwlth., No. 1047 C.D. 2016, filed Nov. 21, 2017); Galena v. Dep’t of State Pro. & Occupational Affs., 122 Pa.Cmwlth. 315, 551 A.2d 676, 677 n.1, 678 (1988). I do not read these cases as supporting the conclusion that the Board’s actions under Sections 40(b) and 43(b) are not distinct, official actions, which would bring an official action under Section 43(b) under the ambit of Act 53 if filed after December 28, 2020. Moreover, both Khan, an unreported opinion that is not binding, and Galena, were rendered before Act 53 redefined what constitutes a felony drug conviction, which is the predicate to when a reinstatement petition can be filed under the plain language of Section 43(b). Thus, I do not find those decisions relevant or persuasive following the General Assembly’s enactment of Act 53.
Slip op. at RCJ-6 (emphasis in original). The dissent explained that the plain language of Act 53, case law and the rule of lenity support the conclusion that applying Act 53 to the Reinstatement Application is not an improper retroactive application of the statute, reasoning that:
First, the United States Supreme Court, in Landgraf v. USI Film Products, 511 U.S. 244, 273, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), held that “[w]hen the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive.” (Emphasis added.) The prospective relief for the suspension of Petitioner’s license suspension is the reinstatement of that license under Section 43(b). The concerns underlying the prohibition against the retroactive application of a law, that doing so “disrupt[s]” “settled expectations” as to what the law is and the ability to conform one’s conduct accordingly, id. at 265, 114 S.Ct. 1483, or will be used “as a means of retribution,” id. at 266, 114 S.Ct. 1483, are inapplicable under these circumstances because the change relates to the remedy – the prospective reinstatement of Petitioner’s license. Allowing Petitioner to seek the reinstatement of his license earlier, based on the General Assembly’s policy decision, expressed in Section 3113(f), that only drug trafficking convictions should be considered in license disciplinary matters, and the fact that Petitioner’s conviction does not qualify cannot be considered a “means of retribution.” Id. Nor does it affect the ability to know what the law is and to conform one’s conduct to the law because the conduct has already occurred. Therefore, I agree with Petitioner that Landgraf supports his interpretation. (See Petitioner’s Br. at 18.)
Second, in Rose Corporation v. Workers’ Compensation Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020) (en banc), this Court recently addressed the necessary considerations for determining whether a statute should apply prospectively or retroactively. This Court recognized the general rule that statutes must be construed prospectively, unless the General Assembly clearly intended otherwise. Id. at 559 (citing Section 1926 of the Statutory Construction Act of 1972 (SCA), 1 Pa.C.S. § 1926). Amendments to statutes must be construed prospectively from the date the amendment becomes effective. Id. (citing Section 1953 of the SCA, 1 Pa.C.S. § 1953). Nonetheless, this Court continued, “[a]n exception to this rule is where the statute is merely procedural and does not alter any substantive rights, in which case it may be retroactively applied, irrespective of whether the statutory amendment includes an express retroactivity clause.” Id. (citing Keystone Coal Mining Corp. v. Workmen’s Comp. Appeal Bd. (Wolfe), 673 A.2d 418, 421 (Pa. Cmwlth. 1996)) (emphasis added).
A substantive right is implicated when the retroactive application of a statute imposes new legal burdens on past transactions or occurrences. … On the other hand, procedural statutes establish the method for enforcing a right, but have no bearing on whether a claimant has a legal entitlement to relief under the facts as they exist in a particular case. …
Id. (quoting Keystone Coal Mining, 673 A.2d at 421) (emphasis added).
Applying Act 53 to the Reinstatement Application would not impose “new legal burdens on past transactions.” See id. (quoting Keystone Coal Mining, 673 A.2d at 421). The Commonwealth already met its burden of establishing that Petitioner was convicted of a crime that, at the time, required the automatic suspension of his license. However, “[i]t is well settled in the law that a medical professional license, once obtained in compliance with the law, becomes a privilege or right in the nature of property and is safeguarded by due process requirements.” Bhattacharjee v. Dep’t of State, State Bd. of Med., 808 A.2d 280, 283 (Pa. Cmwlth. 2002) (citation omitted). Even when a license is suspended, the holder still possesses a property right in that license. McGrath v. Bureau of Pro. & Occupational Affs., State Bd. of Nursing, 643 Pa. 281, 173 A.3d 656, 665 (2017) (citing Brown v. State Bd. of Pharmacy, 129 Pa.Cmwlth. 642, 566 A.2d 913, 915 (1989)). Petitioner’s license, in which he continues to have a property right, was subject to reinstatement “as provided in [S]ection 43(b).” (Reproduced Record (R.R.) at 31a.) Section 43(b) precludes a licensee who has a felony drug conviction from seeking reinstatement for 10 years, but, as of December 28, 2020, the types of felony drug convictions to which this 10-year period would apply was unanimously narrowed by the General Assembly and no longer includes Petitioner’s conviction. Allowing Petitioner to seek reinstatement earlier than originally anticipated would not change that his license was suspended or whether he is entitled to a medical license as of the time he filed the Reinstatement Application. Rather, it relates to “the method for enforcing” the right to a license that Petitioner already has. See Rose Corp., 238 A.3d at 559 (quoting Keystone Coal Mining, 673 A.2d at 421). Ultimately, applying Act 53 to the Reinstatement Application “does not alter [Petitioner’s] past status” but “gives effect to [Petitioner’s] status as it existed at the time [he] filed [his Reinstatement Application].” Whitfield v. Workers’ Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599, 617 (Pa. Cmwlth. 2018) (en banc) (holding that applying Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 639 Pa. 645, 161 A.3d 827 (2017), which found the impairment rating evaluation system unconstitutional, to a subsequently filed petition to reinstate benefits was not unlawfully retroactive) (emphasis in original).
Slip op. at RCJ-6 – RCJ-10 (emphasis in original). The dissent concluded:
Finally, the Board refused to apply Act 53 retroactively because accepting “Petitioner’s … argument would require the [Board] to assume that [the General Assembly] chose a surprisingly indirect route to convey an important and easily expressed message.” (Board Opinion (Op.) at 2 (quoting Landgraf, 511 U.S. at 262, 114 S.Ct. 1483) (alterations in original).) The Majority similarly concludes there was no clear, expressed intention for Act 53 to apply retroactively. Almusa v. State Bd. of Med., 298 A.3d 547, 555–56 (Pa. Cmwlth., No. 342 C.D. 2022, filed July 13, 2023). I disagree that Petitioner’s arguments require “such a broad and unsupported assumption,” (Board Op. at 2), or that the General Assembly’s intent as to the application of Act 53 was unclear. Through Section 3113(f), the General Assembly made the policy decision that “the provisions of the respective practice acts relating to felony drug convictions under the [Drug Act], shall only apply to an individual who has been convicted of a drug trafficking offense,” in licensing boards’ official actions after December 28, 2020. 63 Pa.C.S. § 3113(f) (emphasis added). The stated purpose of the legislation that became Act 53 was to create a “fair, modern set of rules for consideration of criminal records in occupational licensure, which will remove unnecessary barriers to employment.” Senate Co-Sponsorship Memorandum, Senate Bill 637 (Apr. 3, 2019) (emphasis added).
Section 43(b) of the Act, left untouched by the General Assembly, specifically ties the 10-year restriction on seeking reinstatement to those having a felony drug conviction under the Drug Act or similar law, which as of December 28, 2020, was redefined by the General Assembly to include only felony drug trafficking convictions. Section 43(b) of the Act and Section 3113(f) must be read in pari materia and construed together, as they both address the effect of felony drug convictions on professional licensing decisions. Section 1932 of the SCA, 1 Pa.C.S. § 1932. When construed this way, a reasonable interpretation of these provisions is that the General Assembly intended to allow those whose licenses had been automatically suspended for felony drug convictions that no longer warrant consideration for discipline under Act 53 (or suspension under Section 40(b) of the Act) to seek reinstatement before the 10-year period expires if sought after December 28, 2020. This interpretation gives effect to the General Assembly’s intent in Act 53, as well as the plain language of Section 43(b) of the Act and Section 3113(f). This is the object of statutory construction, Section 1921(a), (b) of the SCA, 1 Pa.C.S. § 1921(a), (b), and, therefore, I disagree with the rejection of Petitioner’s interpretation.
While I am not persuaded by the Majority’s differing interpretation, to the extent that there are multiple interpretations, and thus ambiguity, these provisions are punitive and, therefore, subject to the rule of lenity, which favors Petitioner. See Section 1928(b)(1) of the SCA, 1 Pa.C.S. § 1928(b)(1) (requiring penal statutes to be interpreted strictly); Pa. State Real Est. Comm’n v. Keller, 401 Pa. 454, 165 A.2d 79, 80 (1960) (holding that a statute involving the investigation and suspension of professional licenses is penal in nature); Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596, 600 (Pa. Cmwlth. 2011) (stating the rule of lenity provides that ambiguities in penal statutes are to be construed against the government), superseded by statute on other grounds as recognized in Penjuke v. Pa. Bd. of Prob. & Parole, 203 A.3d 401, 417 (Pa. Cmwlth. 2019).
Slip op. at RCJ-10 – RCJ-12 (emphasis in original).
The Pennsylvania Supreme Court granted allocatur to consider the following issues, as stated by Dr. Almusa:
(1) Did the Commonwealth Court err when it concluded that Sections 40(b) and 43(b) of the Medical Practice Act [of 1985], 63 P.S. §§ 422.40(b) and 422.43(b), impose a minimum [10]-year automatic suspension for a felony drug conviction and do not require distinct and separate [State Board of Medicine] actions?
(2) Did the Commonwealth Court err when it concluded that granting Dr. Almusa a reinstatement hearing would constitute a retroactive application of [Section 3113(f) of the Act of July 1, 2020, P.L. 575 (Act 53), 63 Pa. C.S. § 3113(f)]?
(3) Does the rule of lenity support granting Dr. Almusa a reinstatement hearing?
For more information, contact Kevin McKeon or Dennis Whitaker.