IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohammad Khan, M.D.

, :

Petitioner :

:

v. :

:

Bureau of Professional and : Occupational Affairs, :

State Board of Medicine, : N o. 1 047 C.D. 201 6

Respondent : Submitted: January 20, 2017

BEFORE: HONORABLE P. KEVIN BROBSON

, Judge

HONORABLE ANNE E. COVEY

, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: November 21, 2017

Mohammed Khan (Petitioner) petitions

, pro se

, for review of a final

order of the State Board of Medicine (Board), which suspended Petitioner’s license

to practice medicine following his conviction under Section 13(a)(14) of the

Controlled Substance, Drug, Device and Cosmetic Act (Drug Act). 1 Upon review,

we affirm

.

Petitioner pled guilty on December 11, 2015 to a felony violation of

Section 13(a)(14) of the Drug Act. Following entry of the guilty plea and sentencing

by the Court of Common Pleas of Berks County (trial court)

, the Commonwealth

Bureau of Professional and Occupational Affairs (BPOA) filed a petition with the

1 Act of April 14, 1972, P.L. 233, as amended

, 35 P.S. 780

- 113(a)(14).2

Board seeking the automatic suspension of Petitioner’s license to practice medicine

and surgery p ursuant to Section 40(b) of the Medical Practices Act of 1985 (MPA). 2

On April 12, 2016, the Board issued a Notice and Order of Automatic Suspension

(Notice) notifying Petitioner that, on consideration of the allegations contained

within the BPOA’s petiti on, Petitioner’s license was automatically suspended for at

least ten years from the date of his conviction. The Notice indicated Petitioner had

20 days in which to file an answer.

Petitioner filed his response with the Board on April 25, 2016.

Petit ioner asserted in his response that the Board had discretion to impose an

automatic suspension for a period of less than ten years. In a prayer for relief,

Petitioner requested the Board schedule a hearing to address the issue of discretion.

The Board is sued a final order of suspension on June 2, 2016, without providing a

hearing. This appeal followed. 3

DISCUSSION

Petitioner argues ten separate points in his brief

, the majority of which

are not properly developed. Arguments not properly developed in a brief will be

deemed waived. In re: Condemnation of Land for S.E. Central Business District

Redevelopment

, 946 A.2d 1154, 1156 (Pa. Cmwlth. 2008)

. Pleadings filed by a pro

se litigant

, however, are to be construed liberally. Mueller v. Pennsylvania Sta te

2 Act of December 20, 1985, P.L. 457, 63 P.S. § 422.40(b).

3 Our scope of review from an order of the Board is limited to a determination of whether

constitutional rights were violated, whether the findings of fact are supported by substantial

evidence, and whether errors of law were committed. Denier v. Bureau of Professional and

Occupational Affairs

, 683 A.2d 949 (Pa. Cmwlth. 1996).3

Police Headquarters

, 532 A.2d 900, 903 (Pa. Cmwlth. 1987). W e find the following

issues have been sufficiently developed to afford this Court meaning ful review. 4

1) Did the Board err by failing to hold a hearing before

suspending Petitioner’s medical li cense following his

felony conviction for a violation of the Drug Act ?

2) Does the Board ha ve discretion to impose a suspen sion

of less than ten years upon receipt of a certified copy of

a felony conviction under the Drug Act?

First, Petitioner argues the Board erred by not holding an administrative

hearing prior to suspending his medical license. He provides no authority which

mandates such a hearing.

Section 40(b) of the MPA provides that a license issued under the M PA

shall automatically be suspended u pon the licensee’s legal commitment to an

institution upon filing with the board a certified copy of conviction of a felony under

the Drug Act. A hearing is not required. Due process does not require a n evidentiary

hearing when no facts are at issue. De nier

.

In his response to the BPOA’s Petition for Automatic Suspension,

Petitioner admits he pled guilty to a violation of Section 13(a)(14) of the Drug Act

.

(Certified Record (C.R.) at 2.) He f urther acknowledges he may be subject under

the MPA to an automatic suspension. Id. Section 40(b) of the MPA permitted the

Board to automatically suspend Petitioner’s license to practice medicine upon

4 Several of Petitioner’s arguments appear to raise challenges to the quality of the

representation he received during the criminal proceedings, as well as whether the administrative

proceeding should have been stayed pending disposition of his post

- conviction claims. As these

are not matters properly before us, they are not addressed in this opinion. Further, any suggested

claim that the Board may reduce the time of suspension or th at Petitioner’s cooperation in the

criminal matter should merit a reduced suspension are likewise not appropriate issue s to be raised

in this appeal.4

receipt of a certified copy of that felony conviction

. The Board received certified

cop ies of Petitioner’s guilty plea and the sentencing order issued by the trial court.

( C .R. at Tab 1, Attachment A.) As there are no facts at issue in this case, we

conclude there was no need for the Board to hold a due process hearing. 5

Petitioner next argues the Board has discretion to suspend his license

for a term of less than ten years. In support of this argument, he references a case in

which the Board suspended the license of another physician, Dr. Marchinski

(M archinski)

, for a period of one year. 6 (Petitioner’s Brief at 11.) Petitioner cites

no case law which supports his argument.

As discussed herein, Section 40(b) of the MPA requires automatic

suspension of a license upon receipt of a certified copy of a felony conviction under

the Drug Act. Petitioner is not challenging the license suspension, merely the length

of that suspension. Section 40(b) states that “[r]estoration of such li cense or

certificate shall be made as hereinafter provided in the case of revocation or

5 The automatic suspension provisions of the MPA and similar acts have consistently

withstood due proces s challenges. See Firman v. State Board of Medicine

, 697 A.2d 291 (Pa.

Cmwlth. 1997), Horvat v. Dep’t of State Professional and Occupational Affairs

, 563 A.2d 1308

(Pa. Cmwlth. 1989), Morris v. Board of Professional and Occupational Affairs

, 537 A.2d 93 (Pa.

Cmwlth. 1988), Galena v. Department of State Professional and Occupational Affairs

, 551 A.2d

676 (Pa. Cmwlth. 1988).

6 Petitioner filed a motion to compel production of records with this Court on September

16, 2016. Petitioner referenc ed the Marchinski case in t his motion, which requested a list of

actions taken by the Board in similar matters over the last five years. In its response to Petitioner’s

motion

, the Department cites Commonwealth of Pennsylvania v. Leonard Joseph Marchinski

,

M.D.

, docketed with the trial court at CP

- 06

- CR

- 11605

- 2014, in which Marchin s ki entered the

Accelerated Rehabilitative Disposition (ARD) Program. (Respondent’s Answer to Petitioner’s

Motion to Compel at 4.) “Conviction” is defined in Section 2 of the M PA as “[a] judgment of

guilt, an admission of guilt or a plea of nolo contendere.” 63 P.S. § 422.2. ARD is not a conviction

for purposes of the automatic suspension provisions in Section 40(b) of the MPA. Petitioner’s

motion to compel was denied by per curiam order on September 22, 2016.5

suspension of such license or certificate.” Reinstatement of a suspended license is

governed by Section 43(b) 7 of the MPA

, which provides that “[a]ny person whose

lice nse... has been suspended or revoked because of a felony conviction under [the

Drug Act]... may apply for reinstatement after a period of at least ten years has

elapsed from the date of conviction.”

Section 1921(a) of the Statutory Construction Act 8 provide s that “[t]he

object of all interpretation and construction of statutes is to ascertain and effectuate

the intention of the General Assembly.” “W hen the words of a statute are clear and

free from all ambiguity, the letter of it is not to be disregarded un der the pretext of

pursuing its spirit.” 1 Pa.C.S. § 1921(b). The statutory language of Section 43(b)

of the MPA is clear and free of ambiguity. The Board lacks discretion to impose a

suspension for a period of less than ten years.

For these reasons, the order of the Department is affirmed.

___________________________ JOSEPH M. COSGROVE, Judge

7 63 P.S. § 422.43 (b)

.

8 1 Pa.C.S. § 1921 (a)

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohammad Khan, M.D., :

Petitioner :

:

v. :

:

Bureau of Professional and : Occupational Affairs, :

State Board of Medicine, : No. 1047 C.D. 2016

Respondent :

O R D E R

AND NOW, this 21 st day of November

, 201 7

, the State Board of

Medicine ’s order dated June 2, 2016 is affirmed.

___________________________ JOSEPH M. COSGROVE, Judge