J.T. Acri, D.O. v. BPOA, State Board of Osteopathic Medicine
856 C.D. 2017
| Pa. Commw. Ct. | Jan 5, 2018Background
- Petitioner Joseph T. Acri, D.O., pled guilty to four felony counts under the Controlled Substance Act for unlawfully prescribing oxycodone to patients.
- The Commonwealth filed a petition for automatic suspension; the Board issued a notice and Petitioner admitted the convictions in his answer.
- The Board determined no factual dispute remained and, under section 14(b) of the Osteopathic Medical Practice Act, entered an order automatically suspending Petitioner’s license.
- The Board’s order referenced section 6(c) (ten-year restriction on licensure for applicants convicted under the CSA) and section 14.1 (five-year reinstatement after revocation), suggesting multi-year waiting periods for reapplication.
- Petitioner appealed, arguing violations of procedural and substantive due process and that statutory ambiguities precluded a mandatory five- or ten-year delay for reinstatement.
- The Court affirmed the automatic suspension but modified the Board’s order to remove mandatory five- and ten-year waiting references and directed that any reapplication be processed under the Board’s discretionary authority in section 15(c)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petitioner was entitled to a pre- or post-deprivation hearing before automatic suspension | Acri argued Board deprived him of due process by not providing a hearing | Board argued suspension is mandatory under §14(b) upon certified felony conviction and no factual dispute existed | Court: No due process violation; automatic statutory suspension permitted and no hearing required where conviction established and admitted |
| Whether suspension violated substantive due process as excessive or irrational | Acri argued penalty disproportionate and lacked rational relation to government interest | Board argued suspension furthers compelling public interest in preventing diversion and abuse of controlled substances by physicians | Court: Suspension rationally related to public protection; substantive due process claim fails |
| Whether Ake requires mitigation or shorter sanction because of remoteness or conduct nature | Acri relied on Ake to argue for less severe sanction or consideration of remoteness | Board distinguished Ake: here misconduct was recent and directly related to core physician duties | Court: Ake inapplicable; misconduct was job-related and recent; suspension appropriate |
| Proper statutory framework and waiting period for reapplication after suspension | Acri argued ambiguities meant he should not face mandatory 5- or 10-year waiting periods | Board initially applied §6(c) and §14.1 but conceded no explicit time bar exists; argued restoration governed by suspension/revocation provisions | Court: Statutory provisions are ambiguous like in McGrath; modified Board order to delete mandatory 5- and 10-year references and require reapplications be processed under §15(c)(6) discretionary reissuance authority |
Key Cases Cited
- Boulis v. State Board of Chiropractic, 729 A.2d 645 (Pa. Cmwlth. 1999) (professional license may be automatically suspended without prior hearing)
- Wolfe v. State Board of Osteopathic Medicine, 745 A.2d 121 (Pa. Cmwlth. 1999) (suspending physician’s license for CSA violations bears relation to public protection)
- Firman v. Department of State, State Board of Medicine, 697 A.2d 291 (Pa. Cmwlth. 1997) (no entitlement to mitigating hearing where statute mandates automatic suspension on conviction)
- Horvat v. Department of State Professional and Occupational Affairs, 563 A.2d 1308 (Pa. Cmwlth. 1989) (automatic suspension without post-deprivation hearing upheld)
- Galena v. Department of State, Bureau of Professional and Occupational Affairs, 551 A.2d 676 (Pa. Cmwlth. 1988) (same)
- Ake v. Bureau of Professional and Occupational Affairs, State Board of Accountancy, 974 A.2d 514 (Pa. Cmwlth. 2009) (remoteness and nature of offense may counsel for less severe sanction)
- McGrath v. Bureau of Professional and Occupational Affairs, 146 A.3d 310 (Pa. Cmwlth. 2016) (statutory ambiguities over reinstatement periods construed in favor of individual; licensing board’s discretion controls reissuance)