N.L. Custer v. BPOA

<p>IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nicole L. Custer, : Petitioner : : v. : No. 564 M.D. 2018 : Submitted: February 7, 2020 Commonwealth, Department of : State, Bureau of Professional and : Occupational Affairs, Kathy : Boockvar, Kalonji Johnson, Ian : Harlow, State Board of Occupational : Therapy Education and Licensure, : Kerri Hample, Joanne M. Baird, : Carolyn M. Gatty, Christine L. : Hischmann, Edward J. Mihelcic, : Commonwealth, Department : of Human Services, and Teresa : D. Miller, : Respondents : BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE J. ANDREW CROMPTON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: October 29, 2020 Before the Court are the preliminary objections filed by the Department of State, Bureau of Professional and Occupational Affairs; Secretary of State, Kathy Boockvar; Kalonji Johnson; Ian Harlow; the State Board of Occupational Therapy Education and Licensure; Kerri Hample; Joanne M. Baird; Carolyn M. Gatty; Christine L. Hischmann; Edward J. Mihelcic; the Department of Human Services; and Secretary of Human Services, Teresa D. Miller (collectively, Respondents) to Nicole L. Custer’s amended petition for review filed in this Court’s original jurisdiction. Under various legal theories, Custer’s amended petition seeks, inter alia, to compel the State Board of Occupational Therapy Education and Licensure (State Board) to renew her license as an occupational therapist as of July 5, 2017, the date on which she completed all requirements for license renewal. The State Board marked Custer’s license as “expired” because its agent did not notify it that Custer had completed the online continuing education requirement for a license renewal. Respondents assert that the amended petition for review does not state a cognizable claim for relief and should be dismissed. I. Procedural Background On August 20, 2018, Custer filed a petition for review addressed to this Court’s appellate and original jurisdiction. Respondents moved to quash the appellate claim and to dismiss the original jurisdiction claim. In a single-judge opinion, the Court granted the motion to quash the appellate jurisdiction claim; sustained the preliminary objections to the original jurisdiction claim; and dismissed the petition for review with prejudice. See Custer v. Department of State, Bureau of Professional and Occupational Affairs (Pa. Cmwlth., No. 564 M.D. 2018, filed June 18, 2019) (Brobson, J.). The Court reasoned that Custer could not appeal letters sent to her by the State Board and the Department of State, Bureau of Professional and Occupational Affairs (Department of State), because they were not adjudications. The Court also concluded that Custer was required to complete her licensing requirements by June 30, 2017, and did not do so until July 5, 2017. Accordingly, she had no legal right to renewal of her license as of June 30, 2017. Custer then filed an application for reconsideration of the Court’s ruling on her original jurisdiction claim and sought leave to file an amended petition for 2 review. This Court granted reconsideration; vacated its order of June 18, 2019; and granted leave for ...</p><br>
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