Green v. Pa. State Bd. of Veterinary Med.

116 A.3d 1164

Patti L. GREEN, Petitioner

v.PENNSYLVANIA STATE BOARD OF VETERINARY MEDICINE, Respondent.

No. 569 M.D. 2014

Commonwealth Court of Pennsylvania.

Argued Feb. 17, 2015.

Decided March 16, 2015.

Publication Ordered June 10, 2015.

Edward G. Lanza, Harrisburg, for petitioner.

Jonathan D. Koltash, Harrisburg, for respondent.

Opinion

OPINION BY Senior Judge COLINS.

This case is an action in this Court's original jurisdiction brought by Patti L. Green, an individual who practices animal acupuncture, against the Pennsylvania State Board of Veterinary Medicine (Board) seeking a declaratory judgment that the practice of animal acupuncture in Pennsylvania does not require a license. Before the Court are the Board's preliminary objections to the petition for review. For the reasons set forth below, the Court sustains the Board's preliminary objection in the nature of a demurrer.

The petition for review (denominated by Green as the Complaint) alleges that Green is a trained acupuncturist holding a Master's Degree in acupuncture and a post-Master's Certificate in animal acupuncture, and that she has been licensed by the State of Maryland to practice acupuncture on human beings. (Petition for Review ¶ 2.) Green does not allege that she holds any Pennsylvania license to practice acupuncture and admitted at oral argument that she is not licensed in Pennsylvania. In 1999, Green inquired with both the Board and the State Board of Medicine as to licensure requirements and was told that human acupuncture required a license, but that Pennsylvania did not regulate animal acupuncture. (Id. both ¶¶ 8.)¹ Green has practiced animal acupuncture in Pennsylvania on animals diagnosed by licensed veterinarians and at the request of and through referral by licensed veterinarians from 1999 through the present. (Id. ¶ 2, second ¶ 8, ¶ 22.).

In November 2011, the Board filed a Notice and Order to Show Cause charging Green with violating the Veterinary Medicine Practice Act² in her treatment of a dog in June 2011. (Petition for Review ¶¶ 10–11.) The Board's prosecuting attorney submitted a proposed Consent Agreement to Green, who was unrepresented by counsel, and communicated to her that the violation was based her making a diagnosis of the animal's condition. (Id. ¶¶ 12–14.) Based on these representations and on statements by the Board's attorney that additional charges could be brought and far greater costs could be imposed on her if she did not sign the Consent Agreement, Green signed the Consent Agreement, paid a civil penalty and costs of $882, and made changes to the forms that she used in her practice to remove diagnostic terminology and add a disclosure form concerning the nature of her services. (Id. ¶¶ 14, 16–17 & Ex. A.)

In 2013, licensed veterinarians who wished to hire Green to perform acupuncture on the animals they treat sought guidance from the Board as to whether they were permitted to do so. (Petition for Review ¶¶ 23–24.) The Board responded by sending the licensed veterinarians a copy of the Consent Agreement and the Order entered pursuant to that Consent Agreement, and implied that they could not hire Green to perform acupuncture services unless she was licensed in Pennsylvania. (Id. ¶¶ 24–25.) The veterinarians and Green filed a petition with the Board seeking a declaratory order as to whether Green could be hired to perform acupuncture services as a veterinary assistant, but the Board on July 30, 2014 declined to rule on the ground that it lacked jurisdiction to issue a declaratory order. (Id. ¶¶ 28–29.)³

On October 24, 2014, Green filed the instant petition for review asserting that the Board's position that a professional license is required for practice of animal acupuncture infringes her constitutional right to practice her chosen profession and seeking declaratory relief, expungement of the Consent Agreement and Order, and injunctive relief against future prosecution for practicing veterinary medicine without a license. The Board has filed three preliminary objections to the petition for review: (1) a motion to dismiss for failure to exhaust administrative remedies, (2) a demurrer, asserting that Green fails to state a cause of action on which relief may be granted because Pennsylvania law requires a professional license to practice acupuncture, and (3) a motion to dismiss under Pa. R.C.P. No. 1028(a)(2) for failure to conform to Pa. R.C.P. No. 1022 (requiring that pleadings be divided into paragraphs containing only one material allegation) and for inclusion of scandalous and impertinent matter.

It is well settled that in ruling on preliminary objections seeking dismissal of an action, this Court must accept as true all well-pleaded allegations of material facts, as well as all of the inferences reasonably deducible from those facts. Seeton v. Pennsylvania Game Commission, 594 Pa. 563, 937 A.2d 1028, 1032 n. 4 (2007) ; Saxberg v. Pennsylvania Department of Corrections, 42 A.3d 1210, 1211 (Pa.Cmwlth.2012) ; McCord v. Pennsylvania Gaming Control Board, 9 A.3d 1216, 1218 n. 3 (Pa.Cmwlth.2010) (en banc ). The Court, however, is not required to accept as true conclusions of law, unwarranted inferences from facts, expressions of opinion, argumentative allegations or allegations contradicted by documents on which the claim is based. Allen v. Pennsylvania Department of Corrections, 103 A.3d 365, 369 (Pa.Cmwlth.2014) ; McCord, 9 A.3d at 1218 n. 3 ; Firetree, Ltd. v. Department of General Services, 920 A.2d 906, 911–12 (Pa.Cmwlth.2007). Preliminary objections that would result in dismissal of the action should be sustained only where it appears with certainty that the law will not permit any recovery, and any doubt must be resolved in favor of the non-moving party. Saxberg, 42 A.3d at 1211–12 ; McCord, 9 A.3d at 1218 n. 3.

The Court addresses in turn the Board's preliminary objection seeking dismissal for failure to exhaust administrative remedies and its demurrer. Because of the Court's ruling on the Board's demurrer, it is unnecessary to address the Board's motion to dismiss for pleading defects.

The doctrine of exhaustion of administrative remedies requires a party to exhaust all adequate and available administrative remedies before seeking relief against a government agency from the courts. Empire Sanitary Landfill, Inc. v. Department of Environmental Resources, 546 Pa. 315, 684 A.2d 1047, 1053 (1996) ; Funk v. Department of Environmental Protection, 71 A.3d 1097, 1101 (Pa.Cmwlth.2013) ; Heffner Funeral Chapel & Crematory, Inc. v. Department of State, Bureau of Professional and Occupational Affairs, 824 A.2d 397, 400 (Pa.Cmwlth.2003), aff'd without op., 578 Pa. 41, 849 A.2d 1135 (2004). An administrative remedy that does not allow for adjudication of the issue raised by the petitioner, however, is not an adequate remedy and does not preclude resort to the courts. Bucks County Services, Inc. v. Philadelphia Parking Authority, 71 A.3d 379, 388–89 (Pa.Cmwlth.2013) ; Clairton Slag, Inc. v. Department of General Services, 2 A.3d 765, 781 (Pa.Cmwlth.2010).

The Board has not shown that Green has any adequate alternative remedy. Green has sought a ruling from the Board on whether she can practice animal acupuncture as a veterinary assistant to licensed veterinarians and the Board concluded that it lacked jurisdiction to issue a declaratory order. (Petition for Review ¶¶ 28–29.) Indeed, the Board has not argued that Green has any alternative remedy to obtain a determination whether the practice of animal acupuncture requires a license. Rather, the Board asserts that Green's remedy is to seek and obtain a license, contending that she could practice animal acupuncture under the supervision of a veterinarian if she obtained an acupuncture license from other agencies, the State Board of Medicine or the State Board of Osteopathic Medicine, or that she could practice animal acupuncture if she obtained a license from the Board to practice veterinary medicine or to practice veterinary technology as a Certified Veterinary Technician. That argument confuses the merits of Green's claim with whether she has a remedy to determine her rights. Ability to obtain a license and challenge any denial is not an administrative remedy for determining whether a license is necessary. Because the Board has not shown that Green has an adequate administrative remedy, this preliminary objection must be overruled.

The Board also contends that Green cannot state a legally valid cause of action against it because Pennsylvania law requires a professional license to practice animal acupuncture. The Court agrees and sustains this demurrer.

The right to practice a profession is subordinate to the Commonwealth's police power to regulate and license professions to protect the public health and welfare. Commonwealth v. Heller, 277 Pa. 539, 121 A. 558, 560 (1923) ; Barran v. State Board of Medicine, 670 A.2d 765, 767 (Pa.Cmwlth.1996) ; Quintana v. State Board of Osteopathic Medical Examiners, 77 Pa.Cmwlth. 438, 466 A.2d 250, 253 (1983) ; Reisinger v. State Board of Medical Education and Licensure, 41 Pa.Cmwlth. 553, 399 A.2d 1160, 1164 (1979). “It is well established that a state may set reasonable standards for determining the qualifications of those who hold themselves out as practitioners of the healing arts and may also grant to an administrative body the authority to enforce standards.” Reisinger, 399 A.2d at 1164.⁴

The Acupuncture Licensure Act (Acupuncture Act)⁵ requires a license from the State Board of Medicine or the State Board of Osteopathic Medicine before an individual “may practice acupuncture in this Commonwealth” and requires that the acupuncturist renew the license every two years. Sections 2 and 3(a) of the Acupuncture Act, 63 P.S. §§ 1802, 1803(a). The Acupuncture Act requires that both of those boards promulgate regulations requiring the proper training of individuals in acupuncture before they may be licensed to practice acupuncture. 63 P.S. § 1803(b...