Opinion
No. 841 C.D. 2014
03-30-2015
Norman M. Werther, M.D., Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Medicine, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Norman M. Werther, M.D. (Werther), petitions for review of an order of the Bureau of Professional and Occupational Affairs, State Board of Medicine (Board). The Board issued a Final Order of Automatic Suspension with regard to Werther's license to practice medicine and surgery in the Commonwealth. We affirm the Board's order.
On June 12, 2013, a jury in the United States District Court for the Eastern District of Pennsylvania found Werther guilty of violating 21 U.S.C. § 841(a)(1), which makes it unlawful for a person to knowingly or intentionally manufacture, distribute, dispense, or possess with the intent to manufacture, distribute, dispense, or possess a controlled substance. The jury found that Werther engaged in the distribution of a controlled substance without a legitimate medical purpose, which is required by federal regulation, namely 21 C.F.R. § 1306.4(a). Our General Assembly has made the act of dispensing, delivering, and/or prescribing controlled substances by a medical practitioner a felony unless the medical practitioner conducts such activities in the course of professional practice and in accordance with treatment principles accepted by a responsible segment of the population. Sections 4 and 13 of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended and repealed in part, 35 P.S. §§ 780-104, -113(f)(2).
On or about December 3, 2013, in reliance upon Section 40(b) of the Medical Practice Act of 1985 (Act), a prosecuting attorney filed a petition for automatic suspension of Werther's license. Section 40(b) of the Act authorizes the automatic suspension of a medical license upon conviction of an offense under the laws of another jurisdiction, if that offense constitutes a felony under The Controlled Substance, Drug, Device and Cosmetic Act. Section 40(b) of the Act also pertinently provides that the term "conviction" means a judgment and that appeals of convictions cannot stay an automatic suspension arising under Section 40(b) of the Act.
Act of December 20, 1985, P.L. 547, as amended, 63 P.S. § 422.40(b).
Act of April 14, 1972, P.L. 233, as amended and repealed in part, 35 P.S. §§ 780-101 to -144.
On December 11, 2013, the Board, after considering the petition for automatic suspension and reviewing the nature of Werther's federal district court judgment of conviction and sentencing, issued a notice and order of automatic suspension. The notice advised Werther that if he did not respond to the prosecuting attorney's petition for automatic suspension and/or request a hearing on the petition within the thirty-day time period set forth in the notice of automatic suspension, the Board would suspend Werther's license pursuant to the automatic suspension provisions in the Act.
As indicated in the Board's final order of automatic suspension, although Werther was served with the notice and order of automatic suspension at the federal facility at which he is imprisoned, Werther never filed a response to the allegations in the notice concerning his federal conviction. Based upon Werther's failure to respond, the Board determined that Werther did not challenge the fact of his conviction or whether the conviction constituted a felony under The Controlled Substance, Drug, Device and Cosmetic Act. Based upon the Board's authority under Sections 40(b) and 43(b) of the Act, 63 P.S. §§ 422.40(b) and 422.43(b), the Board entered the final order confirming that Werther's license had been automatically suspended.
Werther petitioned this Court for review, challenging the Board's order based solely on the claim that the federal conviction was not final because of pending appeals. In the brief Werther filed in support of his petition for review, he raises additional issues related to the nature of the evidence produced during the federal jury trial.
The Board, citing Pennsylvania Rule of Appellate Procedure 1551(a), argues that Werther has waived all of the issues he raised in the petition for review and his brief, because he failed to respond to the prosecuting attorney's petition for automatic suspension.
Pa. R.A.P. 1551(a) provides, in pertinent part, that this Court may not consider any question that "was not raised before the government unit" whose order is the subject of a petition for review in this Court. --------
With regard to the Board's claim of waiver, Werther seeks the Court's indulgence, based upon his claim that he was becoming acclimated to his new prison surroundings in the Federal Correctional Institution in Otisville, New York, and based upon the fact that he is a pro se litigant. We cannot agree with Werther that his status as a pro se litigant provides him with any benefit we would not afford a litigant who has representation. See Green v. Harmony House North 15th St. Hous. Ass'n, 684 A.2d 1112, 1114-15 (Pa. Cmwlth. 1996) (holding litigant's decision to act pro se not an excuse for failure to follow procedural rules). Werther does not contend that he had not received the Board's notice that was served upon him on January 13, 2014. Although he claims in his reply brief that he "did not have all of his records until later in March 2014" and that he lacked access to the pertinent statutes to enable him to respond, he does not indicate or claim that he never received the notice. (Werther Reply Br. at 8.) As the Board points out, Werther never responded in any manner to the notice, despite the warning contained therein regarding the consequence of failing to do so, and never communicated with the Board through a letter or other means of communication. Consequently, we agree with the Board's assertion that Werther waived any issues he could have raised if he had responded to the notice and order of automatic suspension.
Even if we were to consider the merits of the issues Werther has raised, we would affirm the Board's final order of automatic suspension. Werther first claims that his conviction is not final. Section 40(b) of the Act, however, as noted above, does not provide for stays of automatic suspension pending appeals. Thus, even if we were to conclude that Werther had not waived every issue in this matter, we would still reject this argument.
Werther also seeks to challenge the Board's action based upon his largely nonspecific and inarticulate claims regarding alleged improprieties arising during the course of the underlying criminal proceedings. We view Werther's arguments with regard to matters concerning the criminal trial to constitute improper collateral attacks on that proceeding. The focus of Werther's claim concerns the testimony of one of the prosecutor's witnesses, Dr. Stephen Thomas (see Werther's Br. at 11), who Werther claims provided unreliable testimony concerning standards of practice. Werther takes issue with Dr. Thomas' testimony, asserting that the testimony is flawed and that the jury was erroneously misled into crediting Dr. Thomas' testimony because he also testified that he has acted as a consultant to the Board regarding appropriate standards of practice. This is clearly an attack on the criminal conviction that served as the basis for the Board's final order of automatic suspension.
In Kozieniak v. Department of Transportation, Bureau of Driver Licensing, 100 A.3d 326 (Pa. Cmwlth. 2014), we noted the following:
A collateral attack occurs where the recipient of a civil sanction that is collateral to a criminal conviction attempts to contest the criminal conviction in an appeal of the civil sanction. This Court may not consider whether a licensee should have been convicted; we may consider only whether he was convicted.Kozieniak, 100 A.3d at 329 (citations omitted; emphasis in original). That is exactly what Werther is attempting here. We may not entertain Werther's attempt to challenge the underlying conviction in an effort to contest the Board's action in this matter.
Accordingly, because Werther failed to preserve issues that this Court may review, and, additionally, because we conclude the issues he seeks to raise lack any merit, we will affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 30th day of March, 2015, the order of the Bureau of Professional and Occupational Affairs, State Board of Medicine, is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge