Opinion
No. 566 C.D. 2012
06-04-2013
Arun Kumar Sharma, Petitioner v. Bureau of Professional and Occupational Affairs, State Registration Board for Professional Engineers, Land Surveyors and Geologists, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
This case was reassigned to this author on November 16, 2012.
Arun Kumar Sharma, pro se, petitions for review of an order of the State Registration Board for Professional Engineers, Land Surveyors and Geologists (Board) denying his application to sit for the "engineering principles and practice examination" (Exam), which is a prerequisite for becoming licensed as a professional engineer in Pennsylvania. The Board held that Sharma lacked the requisite experience to sit for the Exam. We vacate and remand.
In 2000, Sharma graduated from Drexel University with a Bachelor of Science degree from the University's accredited electrical engineering program. On December 17, 2001, the Board certified Sharma as an engineer-in-training, after he passed a fundamentals of engineering examination.
From 2002 through 2010, the Defense Contract Management Agency (DCMA) placed Sharma in positions at Northrup Grumman and Boeing assigned to work in the fields of electronics engineering, computer engineering and general engineering. From 2002 to 2004, Sharma worked as an electronics engineer at Northrup Grumman in Baltimore under the supervision of Robert G. Meussner. Sharma was a member of the material review board and was responsible for reviewing drawings and projects. In doing so, Sharma used engineering principles to ensure that product developments conformed to safety standards, customer needs, and DCMA rules and regulations. Reproduced Record (R.R.) Item No. 6; Finding of Fact No. 6.
The Reproduced Record is divided into sequentially numbered items instead of individually numbered pages.
From 2004 to 2008, Sharma worked as a computer engineer at Boeing in Philadelphia under the supervision of Douglas Gordon and Anne Quinn. As part of an engineering team, Sharma developed and tested products, and evaluated and tested software for integration into product manufacturing. From 2008 to 2010, Sharma worked as a general engineer at Boeing's Space and Missile Division in King of Prussia under the supervision of Anthony McCullough, P.E. While there he analyzed contract proposals for engineering work hours and costs, and monitored and tested those proposals for compliance with safety standards and engineering principles.
On May 31, 2010, Sharma applied to sit for the Exam. The Board provisionally denied his application by letter dated September 2, 2011. Citing the requirements of Section 4.2(c)(1) of the Engineer, Land Surveyor and Geologist Registration Law (Law), 63 P.S. §151.2(c)(1), the Board explained that the work experience Sharma listed on his application did not show
Act of May 23, 1945, P.L. 913, added by Section 7 of the Act of December 19, 1990, P.L. 782, as amended, 63 P.S. §151.2(c)(1).
four or more years of progressive experience in engineering work performed after the issuance of the engineer-in-training certificate and under the supervision of a professional engineer or a similarly qualified engineer of a grade and character to fit him to assume responsible charge of the work involved in the practice of engineering.R.R. Item No. 2. The Board further stated the description of the work experience in Sharma's application did not demonstrate that engineering principles and judgment were actually applied, as required by the Board's regulation at 49 Pa. Code §37.31(2)(i). Sharma appealed and requested a hearing.
At the hearing, Sharma appeared pro se and was the only party to present evidence. Sharma testified about his work experience, his duties at each position, and his use of engineering principles in performing those duties. Sharma testified that he applied principles of electrical engineering, computer engineering and general engineering, as well as safety principles. R.R. Item No. 5; Notes of Testimony at 56 (N.T. ___). Summarizing his experience, Sharma stated:
Sharma was restricted in what details of his work experience he was permitted to testify about because many of them involved propriety information of his employers that he was not given permission to disclose. N.T. 7.
And in reference to all [that] work that I did for the last eight years, you know, for the DOD, you know, what I would like to say here is basically my job was to monitor, to overview, to verify and also to orchestrate in other testing procedures that I did according to the, you know, conditions set by the customers
and also with admission to the principles being used for electrical engineering, electronics engineering, computer engineering and other industrial safety practices.N.T. 10-11. He described how he tested the designs using ohm, amperage, moles and all other elements necessary to assess electrical capabilities. N.T. 66. Sharma further testified that through the performance of his jobs, he was able to save the government and his other employers a significant amount of money.
[I]t involves like a challenging, deep, you know, this knowledge and also a verifying from time to time independently without any help from anybody else that what about the contractor is doing is according to the contract, [and several federal regulations].
The Board denied Sharma's appeal, finding that his work experience did not meet the requirements of Section 4.2(c)(1) of the Law and 49 Pa. Code §37.31(2)(i). The Board found that Sharma's experience was progressive, was performed under the supervision of engineers and required him to employ principles of engineering. R.R. Item No. 6, at 8-9. However, the Board denied Sharma's application because it found that his experience was not in design and did not require him to apply engineering principles on a regular enough basis to qualify him to perform the work involved in the practice of engineering. R.R. Item No. 6, at 9. Sharma now petitions for this Court's review.
On appeal, Sharma argues that the Board erred in determining that he did not have the necessary experience to sit for the Exam because his evidence, which was not rebutted, did, in fact, demonstrate four or more years of progressive experience in an engineering field.
Our scope of review of the Board's decision is limited to determining whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 869 n.5 (Pa. Cmwlth. 2008).
Sharma also argues that the experience requirement violates the Privileges and Immunities Clause of the United States Constitution because it is not consistent in all states. U.S. CONST. art. IV, §2, cl. 1. We need not address this issue since we find in Sharma's favor on his first issue. We note, however, that under the Privileges and Immunities Clause, state laws need not be identical. A state is free to adopt policies different from another state, so long as the policies impact the state's own citizens in the same way they impact citizens of different states. Wert v. Department of Transportation, Bureau of Driver Licensing, 821 A.2d 182, 188 (Pa. Cmwlth. 2003). Sharma's constitutional argument is without merit.
The procedure for licensure as a professional engineer is a multi-step process. Applicants for licensure must first complete the engineering fundamentals examination, become certified as an engineer-in-training, and demonstrate satisfactory work experience. Section 4.2(a) of the Law, 63 P.S. §151.2(a). The next step is the "principles and practice examination" at issue in this case. Section 4.2(c) of the Law sets forth the prerequisites for taking the Exam:
(c) ... To qualify for the principles and practice examination, an applicant shall, in addition to holding the engineer-in-training certificate, show satisfactory proof of:
63 P.S. §151.2(c)(1) (emphasis added).(1) four or more years of progressive experience in engineering work performed after the issuance of the engineer-in-training certificate and under the supervision of a professional engineer or a similarly qualified engineer of a grade and character to fit him to assume responsible charge of the work involved in the practice of engineering.
The Board's regulations provide some clarification on what constitutes "progressive experience in engineering work" of "a grade and character to fit him to assume responsible charge of the work." 63 P.S. §151.2(c)(1). The work must be in "the major branch of engineering in which the applicant indicates proficiency." 49 Pa. Code §37.31(2)(i). Further, the work must be under the supervision of a professional or qualified engineer. Id. If the applicant's work experience is in sales, construction, or other nondesign fields, he must demonstrate that engineering principles and engineering knowledge were actually employed. Id. The work experience will not be satisfactory if it involves the "mere selection of data or equipment" from a company catalog; "execution as a contractor of work" designed by an engineer; the "supervision" of "construction" work; or the "operation or maintenance of machinery." Id.
The regulation states:
(2) Professional engineer. An applicant for licensure as a professional engineer shall be certified as an engineer-in-training and show satisfactory evidence to the Board of having met one of the following experience requirements:
(i) Work experience. Four or more years of progressive experience in engineering work performed after the issuance of the engineer-in-training certificate. The experience shall be obtained by working under the supervision of a professional engineer or a similarly qualified engineer, and shall be of a grade and character to qualify the applicant to assume responsible charge of the work involved in the practice of engineering. Experience of short periods of duration; that is, 6 months or less, which is used to comprise the minimum requirements shall be supported by adequate references. The experience shall be in the major branch of engineering in which the applicant indicates proficiency. For sales, construction and similar nondesign experience to be acceptable, an applicant shall demonstrate conclusively to the Board that engineering principles and engineering knowledge were actually employed. The mere selection of data or equipment from a company catalog or a similar publication is not acceptable work experience. The mere execution as a contractor of work designed by a professional engineer, or the supervision of the construction of the work as a superintendent, or the operation or maintenance of machinery or equipment is not acceptable work experience.
We conclude that the Board erred. It found that Sharma's engineering work experience was not in design. However, under Section 4.2(c)(1) of the Law and 49 Pa. Code §37.31(2)(i), "nondesign experience" is acceptable so long as the work required the applicant to employ engineering principles. Here, Sharma testified that he employed engineering principles in his work for Northrup Grumman and Boeing, such as ohm, amperage, moles and all other elements necessary to assess a design's capabilities. R.R. Item No. 5; N.T. 66. In focusing on Sharma's nondesign work, the Board failed to consider the unrebutted evidence that Sharma's work required him to employ engineering principles on a regular basis and that he did so. Further, there was no evidence presented that Sharma's work experience was the "mere execution as a contractor of work designed by a professional engineer, or the supervision of the construction of the work as a superintendent, or the operation or maintenance of machinery or equipment...." 49 Pa. Code §37.31(2)(i).
"[R]eview for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court." Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 203, 812 A.2d 478, 487 (2002). Although Sharma, who is pro se, does not use the magic words "capricious disregard," that is what he means when he argues that the Board failed to consider his extensive evidence that he was qualified to sit for the Exam. Accordingly, we hold that review for capricious disregard of material, competent evidence is properly before the Court in this case. --------
Section 4.2(c)(1) is an open-ended statute that gives few specifics about the type of engineering experience that will qualify an applicant for the Exam. In its provisional denial, the Board did not give Sharma any guidance on what he would need to show in his appeal. R.R. Item No. 2. As this Court noted in Whymeyer v. Department of State, Bureau of Professional and Occupational Affairs, State Registration Board for Professional Engineers, Land Surveyors and Geologists, 997 A.2d 1254, 1259 (Pa. Cmwlth. 2010), ambiguity in the criteria used to evaluate qualifications may lead to arbitrary and disparate treatment of applicants. Accordingly, the Board must provide objective criteria to applicants lest it create unreasonable barriers to entry into the engineering profession. The examination should be the primary means for entry to the profession.
Sharma's unrebutted evidence was that he regularly used engineering principles in his work from 2002 to 2010 in major fields of engineering and under the supervision of a professional engineer. The Board rejected this evidence for the stated reason that "his progressive engineering experience has not been in design or regularly employed application of the principles of engineering and has not been of a grade and character to qualify him ...." R.R. Item No. 6, at 9. In a seminal case, Nationwide Mutual Insurance Co. v. Insurance Department, 324 A.2d 878 (Pa. Cmwlth. 1974), this Court vacated an adjudication because it did not specify the ways in which the insurer's application did not satisfy the statutory standards. This is the problem here. The Board needs to specify which of Sharma's engineering positions was inadequate or what additional information he needs to give the Board to show that his experience qualifies him to sit for the examination.
Accordingly, we vacate the Board's order and remand for further proceedings.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 4th day of June, 2013, the order of the State Registration Board for Professional Engineers, Land Surveyors and Geologists dated February 24, 2012, in the above-captioned matter is hereby VACATED and this matter is REMANDED for further proceedings consistent with the attached Opinion.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge
49 Pa. Code §37.31(2)(i) (emphasis added).