Knelly v. Pa. Dep't of Health

307 A.3d 808

Eugene KNELLY, Petitioner

v.PENNSYLVANIA DEPARTMENT OF HEALTH, Respondent

No. 1088 C.D. 2022

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 5, 2023

Decided December 13, 2023

Reargument Denied January 30, 2024

Appealed from No. EMS-21-004, Department of Health.

Peter M. Good, Harrisburg, for Petitioner.

Colleen T. Reilly, Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ELLEN GEISLER, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY JUDGE McCULLOUGH

Eugene Knelly (Knelly) petitions for review of the September 9, 2022 Final Agency Determination and Order (Final Determination) of the Department of Health, Bureau of Emergency Medical Services (Department), which affirmed the decision of a hearing officer to revoke Knelly’s Emergency Medical Technician (EMT) certification. The Department revoked Knelly’s certification based on his (1) nolo contendere plea to second-degree felony strangulation, and (2) failure to timely report the conviction to the Department. Knelly contends on appeal that the Department abused its discretion by imposing the most severe sanction available, the revocation of his certification, which was manifestly unreasonable due to the nature of his nolo contendere plea and the mitigating evidence. After careful review, we agree. We accordingly vacate the Department’s Final Determination and remand for further consideration consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

The material facts are not disputed. In the Commonwealth of Pennsylvania, EMTs and paramedics are governed by the Emergency Medical Services System Act (EMS Act).¹ Knelly is an EMT who held an EMT certification with an expiration date of September 30, 2022. (Final Determination at 1; Reproduced Record (R.R.) at 090a.) Knelly was involved in a domestic incident with his minor son and, based on the police’s interview with the son, was charged on October 15, 2019, with felony strangulation,² misdemeanor simple assault,³ and misdemeanor reckless endangerment.⁴ (Final Determination at 2 & n.1; R.R. at 091a.) Upon recommendation of his attorney, and as part of a plea agreement with the Commonwealth, on October 19, 2020, Knelly entered a plea of nolo contendere⁵ to second-degree felony strangula- tion.⁶ (Final Determination at 2; R.R. at 091a.) Knelly was sentenced to 36 months’ probation, with the first 12 months to be served on house arrest with electronic monitoring. (Certified Record (C.R.) at 178.) The sentencing order further provided that Knelly could have contact with his son and must maintain full-time employment. Id.

On April 7, 2021, the Department issued to Knelly a four-count Order to Show Cause (OSC). (R.R. at 057a-61a.) Pertinent to this appeal,⁷ Count I of the OSC alleged that, pursuant to Section 8121(a)(14) of the EMS Act,⁸ Knelly’s EMT certification should be revoked because of his nolo contendere plea to felony strangulation. (R.R. at 059a.) In Count IV, the Department alleged that Knelly’s certification should be revoked pursuant to Section 8121(a)(12) of the EMS Act, 35 Pa. C.S. § 8121(a)(12),⁹ because Knelly failed to report his conviction to the Department within 30 days as required by Section 8113(i)(4) of the EMS Act, 35 Pa. C.S. § 8113(i)(4). (R.R. 060a-61a.)

Hearing Officer Michael T. Foerster (Hearing Officer) conducted an online hearing on November 2, 2021.¹⁰ At the hearing, the Department presented three witnesses: (1) Jenni Hoffman, an EMS Program Specialist for the Department, (2) Dr. Aaron Rhone, Emergency Medical Program Manager, and (3) Dylan Ferguson, Director of the Bureau of EMS. The Department also introduced into evidence the docket from Knelly’s criminal ease, the police criminal complaint with the affidavit of probable cause,¹¹ Knelly’s nolo contendere plea and sentence, and several screenshots of Knelly’s online EMS account with the Department.¹² Knelly testified on his own behalf and presented the testimony of Kenneth Soult, the ambulance chief in Mahanoy City and Knelly’s supervisor.

Ms. Hoffman testified that she was advised by Eastern PA EMS Council¹³ that Knelly had a criminal record, (C.R. at 062.) She thereafter conducted an audit, which included obtaining a background check and criminal history report. (C.R. at 063.) During her audit, Ms. Hoffman discovered Knelly’s conviction of felony strangulation resulting from his nolo contender plea on October 19, 2020. (C.R. at 064-65, 067.) Ms. Hoffman reiterated the allegations from the affidavit of probable cause supporting the criminal complaint filed against Knelly, which detailed the alleged incident between Knelly and his son. (C.R. at 067-68.) Ms. Hoffman also testified that the Department had no record of Knelly reporting his conviction to the Department within 30 days. (C.R. at 069.) After discussing Knelly’s conviction internally, Ms. Hoffman testified that the Department "felt his certification should be revoked because of the felony conviction, the circumstances surrounding the conviction, and his failure to report the conviction as required." (C.R. at 070.)¹⁴ Ms. Hoffman acknowledged that, in conducting her audit, she did not speak with anyone involved with Knelly’s case, including the investigating police officer, Knelly himself, Knelly’s son, Knelly’s son’s mother, or any treating physicians, and accordingly had no firsthand knowledge of the circumstances underlying, the charge. (C.R. at 071-72.) Ms. Hoffman did not believe that an in-person investigation was necessary because she had read the facts alleged in the affidavit of probable cause. (C.R. at 072.)

Regarding reporting requirements, Ms. Hoffman testified that the Departinent’s EMS website permits EMS providers to self-report convictions by updating their criminal history on the website. (C.R. at 073-74.) When they do so, a criminal history tab appears in their account, which cannot be deleted. (C.R. at 074, 079-80.) Because that tab did not appear in Knelly’s online account, the Department concluded that he did not report his conviction. Id. Ms. Hoffman also testified that the Department received no records from Knelly regarding his conviction. (C.R. at 069.)

The Department next called Dr. Rhone, who further explained the Department’s decision to seek revocation of Knelly’s license:

The guilty plea of no contest to strangulation raises grave concern for the [Department], again, even greater when it was the provider’s child. This is a concern. As we looked through the affidavit of probable cause which he pled guilty to the contents of, there was excessive force used. … In this case, he took extreme actions against his own child forreporting that he took the medication when he simply forgot.

(C.R. at 082-83.) Dr. Rhone, like Ms. Hoffman, acknowledged that he had no first-hand knowledge of any facts underlying the strangulation charge and that he did not need to speak directly with anyone involved. Rather, he reviewed the affidavit of probable cause and considered it the "officer’s sworn testimony." (C.R. at 084.)

Mr. Ferguson, who was ultimately responsible for the recommendation to revoke Knelly’s certification, considered the same documents reviewed by Ms. Hoffman and Dr. Rhone. (C.R. at 088.) Mr. Ferguson testified, in pertinent part, as follows regarding the Department’s decision:

[T]here were several factors that were concerning. One of those factors included the fact that the victim was a minor, and that minor was in [Knelly’s] charge, meaning that [he] had direct control and a responsibility for [his] wellbeing, just as [ ] EMS provider[s] would have a patient within their charge in their professional capacity.

Additionally, because the matter actually involved, as alleged in the charging documents which the plea of [nolo contendere] was made to, was that it had to do with medication compliance, certainly an issue that [EMS] providers in the Commonwealth … deal with patients, oftentimes having to respond to patients that … maybe are non-compliant with their own medication, and ultimately, the severity of the actions, to the point of creating visual impairment and also examining the grading of the charge that was pled to, the fact that it was a felony in the second degree.

….

So when I evaluated the circumstances and I evaluated the statutory provisions, duties and responsibilities of the Department …, I ultimately felt that I had no other good faith choice other than to sustain the recommendation of my regulatory and compliance panel and ultimately issue the order to show cause to revoke the certification.

(C.R. at 088-89.) Regarding his understanding of Knelly’s nolo contendere plea, Mr. Ferguson testified that he understood that such a plea means that Knelly does not "contest the fact that there is ample evidence that could potentially, sustain a conviction during trial." (C.R. at 091.)¹⁵

Knelly first presented the testimony of Mr. Soult, who testified that he is the chief of the Mahanoy City ambulance service and has been Knelly’s supervisor since 2007. (C.R. at 101-02.) He further testified that he has never had any performance issues with Knelly and has never received any patient complaints regarding Knelly’s care. He also stated that losing Knelly as an EMT would pose significant hardship on Mahanoy City’s ambulance service, possibly putting them "out of service" for a period of time. (C.R. at 101-04, 110.) Mr. Soult had no concerns with Knelly continuing as an EMT and stated that he would trust Knelly with his own family. (C.R. at 104.)

Knelly then testified on his own behalf. He testified that he has been employed as an EMT in Mahanoy City for approximately 13 to 14 years and has been an EMT for approximately 26 years. (C.R. at 115-16.) Knelly described the custody dispute that was ongoing at the time of the incident that gave rise to his strangulation charge. Knelly stated that his son’s mother had been coaching his son, then 11 years old, to make...