IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Haveman and :

Amanda Spillane, :

Petitioners :

 :

v. : No. 765 M.D. 2018

 : Argued: September 9, 2019

Bureau of Professional and :

Occupational Affairs, State Board of :

Cosmetology of the Commonwealth :

of Pennsylvania, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: December 9, 2019

Presently before the Court are the Preliminary Objections (POs) of the Bureau 

of Professional and Occupational Affairs, State Board of Cosmetology of the 

Commonwealth of Pennsylvania (Board) to the Petition for Review (Petition) filed 

by Courtney Haveman (Haveman) and Amanda Spillane (Spillane) (together, 

Petitioners) in this Court’s original jurisdiction. Petitioners seek declaratory and 

injunctive relief, asserting that the good moral character requirement for limited 

cosmetology licensure under Section 5 of what is commonly known as the Beauty 
2

Culture Law1is unconstitutional on its face. Section 5 provides that an applicant for 

an esthetician license, nail technician license, or natural hair braiding license “shall 

be at least sixteen years of age, be of good moral character, have completed a tenth 

grade education or the equivalent thereof and pay the applicable fee to the board.”2 

63 P.S. § 511(a). 

The Board has filed POs asserting that the relief Petitioners seek is barred by 

the doctrines of ripeness, standing, failure to exhaust administrative remedies, res 

judicata, collateral estoppel, untimeliness, or the statute of limitations. After review, 

we overrule the Board’s POs and direct the Board to file an answer.

3

I. Factual Background

a. Petition 

On December 11, 2018, Petitioners filed the Petition in the nature of a 

complaint for declaratory and injunctive relief, averring as follows. Petitioners are 

both Pennsylvania residents who applied for limited cosmetology licenses from the 

Board and were denied licenses on the basis of poor moral character due to their past 

 

1 Act of May 3, 1933, P.L. 242, as amended, 63 P.S. § 511. 

2 Esthetics is defined as “the practice of massaging the face, applying cosmetic 

preparations, antiseptics, tonics, lotions or creams to the face, removing superfluous hair by 

tweezers, depilatories or waxes, and the dyeing of eyelashes and eyebrows.” Section 1 of the 

Beauty Culture Law, 63 P.S. § 507. A qualified applicant must have completed at least 250 hours

of instruction in esthetics at a licensed cosmetology school, and taken the required examination in 

addition to the requirements set forth above. 63 P.S. § 511(b)(1).

3 On November 14, 2019, the Board filed an Application in the Nature of a Motion for 

Protective Order/Motion for Stay (Application), in which it asked this Court to grant a protective 

order prohibiting depositions of certain individuals requested by Petitioners. The Board also asked 

us to stay all additional discovery and objections thereto until 60 days after resolution of the POs. 

Given our disposition overruling the Board’s POs and directing the Board to file an answer to the 

Petition, we deny this Application. 
3

criminal conduct. Petitioners both sought limited licenses to become licensed 

estheticians.

i. Haveman

With regard to Haveman, Petitioners aver the following. In 2016, Haveman 

completed a six-month program at the Bucks County School of Beauty Culture, 

which cost approximately $6000 and included a minimum of 300 hours of 

instruction, as required by law. (Petition ¶ 23.) Haveman was offered employment 

as an esthetician once she received her license; therefore, she applied in January 

2016 to sit for the required exam and receive her license. The Board notified 

Haveman by letter dated March 16, 2016, that her application for a license could not 

be processed until she “submitted ‘CERTIFIED COPIES of ALL documents related 

to’ her [past] criminal convictions.” (Id. ¶ 28.)

The Board was referencing criminal convictions arising between 2011 and 

2013, in which Haveman pleaded guilty to certain misdemeanors. Haveman paid 

for, obtained, and submitted to the Board the necessary documents related to these 

convictions. By letter dated July 25, 2016, the Board “provisionally den[ied

Haveman]’s application,” because Haveman’s “misdemeanor record from 2011 to 

2013 ‘suggest[ed] that [she] may not be of sufficient good moral character.’” (Id.

¶¶ 30, 31 (alterations in original).) The Board advised Haveman that she could 

appeal this decision and request a formal hearing, at which she would have the 

burden of proof to demonstrate her qualifications for “licensure and fitness to 

practice.” (Id. ¶ 33.)

Haveman was unaware of the good moral character requirement until she was 

provisionally denied her license. Although Haveman considered hiring a lawyer, 
4

she could not afford one and was “too intimidated to undergo a formal hearing on 

her own”; thus, she did not request one. (Id. ¶¶ 35, 36.) The Board issued a final 

order on October 7, 2016, denying Haveman’s application. Haveman then wrote the 

Board, asking it to “take another look” at her application. (Id. ¶ 39.) In her letter, 

Haveman explained that it was her dream to be an esthetician and she had taken 

positive steps to turn her life around since her criminal conduct. Haveman stated 

that she sought to be honest and forthcoming on her licensure application and “paid 

all of the dues necessary to put [her] mistakes behind [her].” (Id.) The Board did 

not respond and Haveman did not file an administrative appeal. Haveman avers that 

she is now unable to work in her chosen occupation and, but for the good moral 

character requirement, Haveman “would re[]apply for, and be granted an esthetician 

license.” (Id. ¶ 42.)

ii. Spillane

With regard to Spillane, Petitioners aver the following. In 2014, Spillane 

completed an esthetician program at the Bucks County School of Beauty Culture, 

which cost approximately $6000 and included at least 300 hours of instruction, as 

required by law. Spillane was offered a job at a nail salon for when she was licensed. 

Spillane applied for her esthetician license in November 2014, and the Board 

provisionally denied the license by letter dated May 7, 2015. The Board explained 

that Spillane had prior convictions that indicated she did not have sufficient good 

moral character to obtain the license. Spillane’s past criminal conduct arose from 

incidents occurring between 2005 and 2011, which resulted in Spillane pleading 

guilty to various offenses related to drug abuse.
5

Spillane requested a hearing and attended it with her parents. Spillane was 

unable to afford an attorney for this hearing. Spillane brought to the hearing 

reference letters from friends, family, and the Bucks County School of Beauty 

Culture. Spillane avers that she “was humiliated to have to explain to a government 

official that she is a good person,” and both she and her father “cried during the 

hearing,” where they testified and Spillane presented reference letters to demonstrate 

her good moral character to the Hearing Officer. (Id. ¶ 67.) The Hearing Officer 

issued a proposed order to deny Spillane’s application, concluding in part that:

Although [Spillane’s] ability to maintain employment, complete 

esthetician training, and refrain from committing additional crimes 

since being released from prison is laudable, such accomplishments do 

not serve to negate the record of poor moral character [Spillane] 

developed over the course of several years so as to establish her current 

good moral character.

(Id. ¶ 69.) The Board adopted the Hearing Officer’s findings and denied Spillane 

the license. Spillane did not appeal.

Petitioners allege that Spillane “has turned her life around” following her 

convictions, as she has “participated in intensive therapy,” become “deeply 

religious,” and properly manages her mental health through medication and a healthy 

lifestyle. (Id. ¶¶ 49, 50, 52-53.) Petitioners aver that because of the Board’s denial 

of Spillane’s license, she is unable to work and make a living in her chosen 

profession, and if the good moral character requirement for licensure was “ruled 

unconstitutional, [Spillane] would re[]apply for, and be granted, an esthetician 

license.” (Id. ¶ 73.)
6

iii. Board’s Policy and Injury to Petitioners

Petitioners further aver that “the Board routinely denies applicants for both 

cosmetology and limited cosmetology licenses because of criminal convictions that 

have nothing to do with fitness to practice cosmetology,” such as in the three years 

preceding 2018 when 27 of the 71 applicants provisionally denied licenses on the 

basis of poor moral character were issued final denials. (Id. ¶¶ 75-76.) Petitioners

contend that the good moral character requirement discourages people from applying 

for a license and disproportionately affects lower income, non-college educated 

women. Further, the Board has no legitimate state interest or evidence that any 

denied applicants lack good moral character for a cosmetology license. The good 

moral character requirement does not protect the public where the criminal conduct 

is unrelated to the cosmetology profession. Petitioners assert this is demonstrated 

by the statutes and regulations governing licensure for barbers and other salon 

employees, which do not contain a good moral character prerequisite prior to 

licensure.

Petitioners assert that they meet all other requirements for an esthetician 

license. They spent time and money on education to obtain licensure but are either 

unemployed or working in a different field. Spillane spent time and money to travel 

to Harrisburg for her hearing, and both Petitioners would have to attend “timeconsuming and humiliating hearing[s]” in order to reapply for licenses. (Id. at ¶

115.) Petitioners are not willing to reapply for licensure while the good moral 

character requirement is in place. Petitioners emphasize that they “are not 

challenging their initial license denials or seeking damages based on those denials,” 

but are “seeking relief only prospectively, based on the unconstitutional burden the 

good [moral] character requirement is imposing on them now.” (Id. ¶ 122.)
7

iv. Claims for Relief

Petitioners allege a violation of their state substantive due process rights under 

article I, section 1 of the Pennsylvania Constitution,4 which protects Petitioners’ 

rights to pursue their chosen occupations free from “arbitrary and irrational 

legislation.” (Id. ¶ 125.) Petitioners assert that the good moral character requirement 

is facially unconstitutional under article I, section 1 because it lacks a substantial 

relationship to a legitimate government interest and is unduly oppressive. Petitioners

also allege that the good moral character requirement is facially unconstitutional 

under Pennsylvania’s equal protection guarantee. Because Petitioners were treated 

differently from similarly situated individuals, such as prospective barber licensees, 

due to the good moral character requirement, Petitioners aver that the requirement is 

unduly oppressive. Petitioners assert that the good moral character requirement has 

no substantial or rational relationship to a legitimate government interest to justify 

this different treatment between similar individuals.

Petitioners seek a judgment declaring the good moral character requirement 

and all rules and regulations implementing that requirement facially violate the 

substantive due process and equal protection guarantees of the Pennsylvania 

Constitution. Petitioners also seek an order permanently enjoining enforcement of 

these provisions against any applicants, as well as attorney’s fees, costs, expenses, 

and any other legal and equitable relief deemed proper by the Court.

 

4 Article I, section 1 provides that “[a]ll men are born equally free and independent, and 

have certain inherent and indefeasible rights, among which are those of enjoying and defending 

life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing 

their own happiness.” PA. CONST. art. I, § 1.
8

b. POs & Answer

The Board filed the instant POs asserting: (1) lack of ripeness; (2) lack of 

standing; (3) failure to exhaust remedies, collateral estoppel, res judicata;

5

(4) 

untimely appeal; and (5) statute of limitations. Applicants filed an Answer to the 

POs, denying the Board’s conclusions of law as to the applicability of the asserted 

POs. 

II. Standard

When ruling on preliminary objections, this Court must “accept as true all 

well-pleaded material allegations” in the Petition “and any reasonable inferences that

we may draw from the averments.” Armstrong Cty. Mem’l Hosp. v. Dep’t of Pub. 

Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013). This Court is “not bound by legal 

conclusions, unwarranted inferences from facts, argumentative allegations, or 

expressions of opinion[s]” in the Petition. Id. The POs should be sustained only if 

it “appear[s] with certainty that the law will not permit recovery.” Pa. State Lodge, 

Fraternal Order of Police v. Dep’t of Conservation & Nat. Res., 909 A.2d 413, 416 

(Pa. Cmwlth. 2006). Any doubt as to whether the POs should be sustained must be 

resolved in favor of overruling them. Id.

III. Discussion

a. Ripeness

The Board asserts that Petitioners’ claims are not ones upon which relief can 

presently be granted, as Petitioners do not have current applications before the Board 

and have averred that they will not submit new applications. As such, the Board 

 

5 We have combined these three separate grounds under one subsection in conformity with 

the Board’s grouping of the POs in its brief.
9

contends that Petitioners’ Petition is “a belated attempt to secure a retrospective 

opinion that they have been harmed by the Board’s previous actions.” (Board’s Brief 

(Br.) at 11.) Because Petitioners cannot establish likelihood of harm by operation of 

the good moral character requirement, the Board argues that Petitioners’ claims are 

not ripe.6

Petitioners respond that they have averred facts that adequately develop the 

issues and that the parties will suffer hardship if review is delayed, which is sufficient 

for their claims to proceed beyond preliminary objections as to ripeness. Petitioners 

raise a pure question of law – the constitutionality of the good moral character

requirement, and further facts need not be developed to determine this. Additionally, 

Petitioners contend that they will suffer hardship so long as the good moral character

requirement remains, as they would have to expend time and resources to navigate 

the administrative process for license applications again. Further, Petitioners assert 

that this Court has determined constitutional challenges are ripe even where a party 

has not entered the administrative process. (Petitioners’ Br. at 14 (citing Pa. Indep. 

Oil & Gas Ass’n v. Dep’t of Envtl. Prot., 135 A.3d 1118 (Pa. Cmwlth. 2015)).) Since 

Petitioners assert they “are faced with an improper license requirement,” their claims 

are ripe and well developed because Petitioners have already gone through the 

application process once. (Id. at 15.)

The doctrine of ripeness concerns “whether judicial intervention occurs at the 

appropriate time.” Pa. Indep. Oil, 135 A.3d at 1127. With regard to administrative 

law, ripeness is intended to prevent the courts “from entangling themselves in 

 

6 The Board suggests throughout its brief that a change in Petitioners’ “circumstances, the 

current state of the law, and evolving sentiment regarding whether previous criminal convictions 

should impair licensure may all favor Petitioners’ positions if they were to present new 

applications to the Board.” (Board’s Br. at 11.)
10

abstract disagreements over administrative policies,” and to avoid “judicial 

interference until an administrative decision has been formalized and its efforts felt 

in a concrete way by the challenging parties.” Bayada Nurses, Inc. v. Dep’t of Labor 

& Indus., 8 A.3d 866, 874 (Pa. 2010). 

In deciding whether the doctrine of ripeness bars our consideration of a 

declaratory judgment action, we consider “whether the issues are 

adequately developed for judicial review and what hardships the parties 

will suffer if review is delayed.” . . . The factors we consider under our 

“adequately developed” inquiry include: whether the claim involves 

uncertain and contingent events that may not occur as anticipated or at 

all; the amount of fact finding required to resolve the issue; and whether 

the parties to the action are sufficiently adverse. . . . Under the 

“hardship” analysis, we may address the merits even if the case is not 

as fully developed as we would like, if refusal to do so would place a 

demonstrable hardship on the party.

Philips Bros. Elec. Contractors, Inc. v. Pa. Tpk. Comm’n, 960 A.2d 941, 945-46 (Pa. 

Cmwlth. 2008) (quoting Twp. of Derry v. Pa. Dep’t of Labor & Indus., 932 A.2d 56, 

57-58 (Pa. 2007)). The conflict between the parties does not need to be a “fullfledged battle,” but exists where the parties’ differences regarding their legal rights 

“have reached the state of antagonistic claims, which are being actively pressed on 

one side and opposed on the other.” Pa. Indep. Oil, 135 A.3d at 1128 (quoting 

Lakeland Joint Sch. Dist. Auth. v. Sch. Dist. of Twp. of Scott, 200 A.2d 748, 751 (Pa. 

1964)).

In Pennsylvania Independent Oil, this Court concluded that a petition for 

review challenging the Department of Environmental Protection’s (DEP) authority 

to impose requirements for a permitting process was adequately developed and ripe 

for determination. Id. Specifically, the association challenged DEP’s authority to 

impose certain permitting requirements in light of Robinson Township v. 

Commonwealth, 83 A.3d 901 (Pa. 2013), where the Pennsylvania Supreme Court 
11

enjoined DEP’s enforcement of certain statutory provisions. DEP argued the claim 

was not ripe because the association averred general allegations, raising questions 

regarding how DEP interpreted and applied the relevant statutory provisions to each 

of the association’s members. DEP contended that the factual issues first had to be 

developed before the Environmental Hearing Board. 

We disagreed, reasoning that the lack of factual record did not preclude 

ripeness because the association was not challenging DEP’s application of the 

requirements to any one of its members, but rather, DEP’s ability to apply the 

requirements to any of the association’s members. The association challenged the 

permitting requirements industry-wide, not the denial of any particular application. 

Because the association’s concerns regarding DEP’s process were “unavoidable,” 

this Court explained, “the ripening seeds of a controversy appear.” Pa. Indep. Oil, 

135 A.3d at 1128 (internal quotation omitted). Further, declaratory judgment actions 

are intended “to eliminate the substantial expense and uncertainty” that comes with 

piecemeal litigation, we noted, and the declaratory relief the association sought 

would practically help to end the dispute. Id. Therefore, we determined that the 

issue in the association’s petition was adequately developed for “ascertaining 

whether declaratory relief [was] warranted.” Id.

The issue presented in Petitioners’ Petition is similar to that in Pennsylvania 

Independent Oil. Petitioners do not challenge the denial of their licensure

applications but assert a broader challenge to the constitutionality of one of the 

statutory requirements for licensure. Petitioners’ constitutional challenge is a facial 

challenge that is adequately developed for review. First, the claims do not involve 

uncertain and contingent events, as Petitioners have applied for licensure and were 

denied for poor moral character. Further, they have averred in the Petition that the 
12

Board issued final denials to other applicants over the three years preceding 2018 

based on the good moral character statutory requirement. (Petition ¶¶ 75-76.) This 

supports the argument that the Board is applying the statutory requirement that 

Petitioners allege is unconstitutional. As such, the constitutional questions regarding 

the Board’s application of this requirement for licensure have become 

“unavoidable,” such that the “ripening seeds of a controversy appear[ed].” Pa. 

Indep. Oil, 135 A.3d at 1128.

Further, there is no need for further factual development because, as set forth 

on the face of the Petition, Petitioners challenge the constitutionality of the good 

moral character requirement on its face. As with the industry association in 

Pennsylvania Independent Oil, Petitioners’ challenge here is to the Board’s authority 

to apply the good moral character requirement to any application for a limited 

cosmetology license. It is not a belated challenge to the Board’s denial of 

Petitioners’ prior applications for licensure. The Board argues that Petitioners 

cannot establish harm because they do not currently have applications pending 

before the Board, but this overlooks the relief Petitioners seek, which is a declaration 

that this requirement is unconstitutional and a prohibition against the Board from 

using the requirement when reviewing applications in the future. We recognize that 

Petitioners did not appeal the determinations in which the Board denied them 

licenses and aver that they will not reapply for licensure while the good moral 

character requirement remains. However, Petitioners do not seek relief related to 

their individual license denials, such as a request that the Court direct the Board to 

grant them a license. Rather, they seek to be able to apply for a license to work in 

their chosen profession at some point in the future without being subject to a 

requirement they believe is unconstitutional. Moreover, as discussed further below, 
13

because Petitioners do not challenge their license denials in the Petition, their 

decision not to appeal those administrative decisions does not preclude their present 

claims by reasons of ripeness or the other objections raised by the Board.

Moreover, because declaratory judgment actions are intended to “eliminate 

the substantial expense and uncertainty that results from . . . piecemeal litigation,”

id., the declaratory judgment that Petitioners seek will “practically help to end the 

controversy” between the parties. Id. Petitioners and the Board take opposing 

positions as to the constitutionality of the good moral character requirement, and 

Petitioners aver that it is the good moral character requirement that precludes them 

from reapplying for licensure. (Petition ¶ 117.) Because of these opposing positions

and the Board’s application of that requirement, a controversy exists and the claims 

are ripe for review. Without resolution of the claims in Petitioners’ Petition, 

Petitioners are unable to pursue their lawful professions as estheticians without 

expending time and money for new applications and submitting themselves to a 

licensure process that they aver is unconstitutional on its face. (Id. ¶¶ 110-21.) 

Requiring individuals to undergo an inquiry believed to be unconstitutional on its 

face as a prerequisite for the ability to challenge that unconstitutionality, as the 

Board’s arguments appear to suggest, creates a hardship on those individuals.

Therefore, Petitioners will suffer a hardship if review is denied. Accordingly, 

because the issues are adequately developed and Petitioners will suffer hardship if 

review is denied, the claims are ripe and this PO is overruled.

b. Standing

The Board argues that Petitioners seek relief for a future hypothetical situation 

and refuse to apply for new licenses until the good moral character requirement is 
14

deemed unconstitutional. Because of this, the Board contends that Petitioners cannot 

establish that denial of their applications for licensure is imminent. Therefore, the 

Board asserts Petitioners cannot show a direct, immediate, and substantial interest 

in the litigation. The Board also argues that Petitioners’ interest in the litigation is 

not distinct from the interest of the public at large. Petitioners’ position that they 

have been harmed previously by application of the good moral character requirement 

and do not wish to be harmed again, the Board maintains, is not enough to establish 

immediate and substantial harm. As a result, the Board argues Petitioners lack 

standing.

Petitioners contend that they have standing for all the reasons supporting their 

position that the claim is ripe. Petitioners assert that they have a substantial, direct, 

and immediate interest “because they cannot practice their chosen occupation unless 

they undergo a burdensome, humiliating, and unconstitutional process,” and but for 

the good moral character requirement, they would be granted licenses as they have 

met the other licensing requirements. (Petitioners’ Br. at 17.)

In order to have standing, a petitioner must show that the petitioner is 

aggrieved. Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 660 

(Pa. 2005). A party is aggrieved where the party can establish

that [the party] has a substantial, direct, and immediate interest in the 

outcome of the litigation. . . . An interest is “substantial” if it is an 

interest in the resolution of the challenge which “surpasses the common 

interest of all citizens in procuring obedience to the law.” Likewise, a 

“direct” interest mandates a showing that the matter complained of 

“caused harm to the party's interest,” . . . i.e., a causal connection 

between the harm and the violation of law. . . . Finally, an interest is 

“immediate” if the causal connection is not remote or speculative.
15

Id. (citations omitted). For declaratory judgment actions, a party’s interest must be 

“substantial and present,” as opposed to “remote or speculative,” because 

“[d]eclaratory judgment is not appropriate to determine rights in anticipation of 

events which may never occur.” Chester Upland Sch. Dist. v. Commonwealth, 495 

A.2d 981, 983 (Pa. Cmwlth. 1985).

First, Petitioners’ interests must be substantial. Because Petitioners are within 

the class of people to whom the challenged statutory requirement applies, their 

interest in the constitutionality of Section 5 of the Beauty Culture Law “surpasses 

the common interest of all citizens in procuring obedience to the Law.” Pittsburgh 

Palisades Park, 888 A.2d at 660. They have taken the educational and experiential 

steps necessary to seek licensure in this field and but for this requirement, they 

contend that they would be able to obtain a license. Thus, their interests are 

substantial. Second, Petitioners’ interests must be direct. Because Petitioners assert 

that it is the claimed unconstitutional requirement that is preventing their ability to 

obtain licensure and employment within their chosen profession, there is “a causal 

connection between the harm and the violation of law.” Id. Thus, their interests are 

direct.

Third, we must consider whether Petitioners’ interests are immediate for the 

purposes of a declaratory judgment action. As this Court determined in Chester 

Upland School District, there is no direct, substantial or present interest to confer

standing on a petitioner when the petition for review in declaratory judgment does 

not contain averments that action by an agency has been taken or that action is 

inevitable. 495 A.2d at 983. Absent such allegations, no “actual controversy” is 

presented. Id. In Chester Upland School District, a school district filed a petition 

for review seeking declaratory judgment as to the constitutionality of amendments 
16

to the Public School Code of 19497 prohibiting certain school districts from requiring 

its employees to reside in the district as a precondition to employment. The 

Commonwealth filed preliminary objections asserting, inter alia, that there was no 

case or controversy to confer standing. This Court agreed, reasoning that the 

Commonwealth had not taken action to enforce the amendments or that it was 

inevitable that it would. Thus, there was no showing that it was “imminent or 

inevitable” that the Commonwealth would take action and, therefore, the school 

district did not have standing. Id.

The Court determined the case was similar to our decision in South Whitehall 

Township v. Department of Transportation, 475 A.2d 166 (Pa. Cmwlth. 1984), 

wherein a township sought declaratory relief to invalidate regulations promulgated 

by the Department of Transportation (DOT). We sustained DOT’s preliminary 

objections on the basis of standing, noting that “[t]he crux of the [township]’s claim 

. . . is that if it acts on behalf of developers,” the regulatory provisions at issue would 

impose liability on the township contrary to public policy and law. Id. at 169

(emphasis added). This, the Court explained, was not the same as averring that the 

township had in fact acted such that “the indemnity regulation [was] brought into 

play.” Id. Because the township had not averred that it had, or even sought to obtain,

a permit on behalf of a private developer, this Court concluded that “[t]he events 

which might bring these parties into actual conflict are thus too remote to justify our 

resolution of this dispute by declaratory judgment.” Id.

Unlike the petitioners in Chester Upland School District and South Whitehall 

Township, which did not aver actual action or inevitable action by the relevant 

agency, Petitioners here do aver facts reflecting that “[t]he events which might bring 

 

7 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101–27-2702.
17

the parties into actual conflict” are not “remote.” South Whitehall Twp., 475 A.2d 

at 169. Rather, per the Petition’s allegations, which we accept as true at this stage 

of the proceedings, the Board has acted and has applied or enforced the good moral 

character requirement set forth in Section 5 of the Beauty Culture Law. As averred 

in the Petition, the Board applied it to Petitioners’ applications, as well as to the 

applications of others who were denied licenses due to the Board’s enforcement of 

this statutory provision. Petitioners claim this requirement is unconstitutional on its 

face and, therefore, there is an actual conflict or controversy that is imminent and 

inevitable. Accordingly, their interests, as individuals to whom this provision is 

applicable, and their challenge to this provision as being unconstitutional, cannot be 

said to be speculative because “[t]he events which might bring these parties into 

actual conflict” have actually occurred. South Whitehall Twp., 475 A.2d at 169. 

Because Petitioners have a substantial, direct, and immediate interest and have 

suffered harm, Petitioners have standing for the present action and this PO is

overruled. 

c. Failure to Exhaust Remedies, Res Judicata, and Collateral Estoppel

The Board argues that Petitioners’ claims are barred by res judicata because 

Petitioners seek to relitigate issues that they did not raise before the Board during 

their application processes. The Board further argues that the claims in the Petition 

are barred by collateral estoppel as they (1) are the same issues that were present 

before the Board during the application process, and (2) were the basis for the final 

license denials. Additionally, Petitioners now raise these claims against the same 

party, the Board, against which they had a full and fair opportunity to litigate their 

claims regarding the good moral character requirement during the administrative 
18

licensure process. Moreover, the Board contends that Petitioners did not exhaust 

their statutory remedies for these claims, as Haveman did not challenge the 

provisional denial or appeal the final denial and Spillane did not appeal the final 

Order denying her license after the hearing. The Board contends that if Petitioners 

“avail[ed] themselves of the reapplication process, they could . . . either prevail 

before the Board or, if denied, litigate the matter through the appropriate appeals.” 

(Board’s Br. at 18.) Because they have not, the Board maintains Petitioners’ claims 

are barred by res judicata and collateral estoppel.

Petitioners respond that the Board’s three preliminary objections here do not 

succeed because the Board does not have jurisdiction over claims challenging the 

facial constitutionality of a law. Therefore, Petitioners were not required to exhaust 

administrative remedies. Similarly, Petitioners assert that their claims are not barred 

by res judicata because the Board would not have been able to decide these 

constitutional challenges had Petitioners raised them during the application process. 

The claims are also not barred by collateral estoppel, as the claims for relief are not 

related to the Board’s determination that Petitioners lack good moral character but 

whether that requirement is even constitutional. Accordingly, Petitioners contend 

that collateral estoppel does not apply.

Exhaustion of administrative remedies is related to the doctrine of ripeness 

and requires parties to proceed through all adequate and available administrative 

channels before seeking judicial remedies. Bayada Nurses, Inc., 8 A.3d at 875. The 

requirement of exhaustion of administrative remedies “ensure[s] that agency 

decision making is not unduly disrupted.” Id. In declaratory judgment actions, the 

exhaustion requirement makes certain that equitable relief “‘cannot be granted to a 

party [that] has an adequate remedy at law’ but has not exhausted that remedy.” E.
19

Coast Vapor, LLC v. Pa. Dep’t of Revenue, 189 A.3d 504, 510 (Pa. Cmwlth. 2018). 

There is an exception to the exhaustion requirement where a party challenges the 

validity of a statute, as opposed to challenging the application of that statute to the 

particular party. Id. at 511. Because “[a]n administrative agency cannot find its 

enabling legislation to be unconstitutional,” an agency cannot provide an adequate 

remedy to a facial challenge to the constitutionality of a statute. Id.

In East Coast Vapor, for example, the petitioners raised a facial challenge to 

the constitutionality of certain definitional and tax provisions of the Tobacco 

Products Tax Act8 and sought declaratory relief. The Department of Revenue 

asserted that the petitioners had not exhausted administrative remedies because the 

basis for the petitioners’ aggrievement, the unlawful collection of taxes, should have 

been challenged before the Board of Finance and Revenue. This Court disagreed, 

explaining that petitioners’ challenge to the statute was facial and based on the 

statutory text alone rather than the facts of a particular case. Id. at 511-12. There 

was no need for additional fact finding in order to resolve the claim, this Court 

reasoned, as the petitioners’ challenge was a “direct attack” on the “express 

provisions” of the statute. Id. at 512.

Here, as in East Coast Vapor, Petitioners are raising a facial challenge to the 

good moral character requirement in Section 5. Although the initial harm Petitioners 

experienced was the denial of their applications for licensure, they do not challenge

denial. Rather, Petitioners assert a constitutional challenge to the statutory good 

moral character requirement on its face. Had Petitioners raised the issue of the 

constitutionality of the good moral character requirement before the Board during 

the licensure application process, the Board would have been unable to provide,

 

8 Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §§ 8201-A–8234-A.
20

through the administrative appeals process, the relief that Petitioners now seek: a 

declaration that the good moral character requirement violates the Constitution. 

Thus, even though the Board suggests that Petitioners should simply reapply and 

that the “evolving sentiment regarding” prior criminal convictions and licensure, 

“may . . . favor” Petitioners’ positions, (Board’s Br. at 11 (emphasis added)), this 

position disregards the declaratory relief requested. Further, should Petitioners take 

such actions and the Board grant Petitioners licenses, Petitioners would be unable to 

present their constitutional arguments to the Court, as they would not be aggrieved. 

For these reasons, Petitioners were not required to exhaust administrative remedies.

Because Petitioners seek declaratory relief related to the statutory requirement 

on its face, not an administrative appeal of the licensure denials and corresponding 

grant of the prior application, and they could not have received the relief they seek 

at the administrative level, res judicata and collateral estoppel similarly do not apply. 

Res judicata, or claim preclusion, “bars a subsequent action between the same parties 

on any claim that was the subject of an earlier adjudication on the merits.” Doheny 

v. Dep’t of Transp., Bureau of Driver Licensing, 171 A.3d 930, 935 n.11 (Pa. 

Cmwlth. 2017).

Res judicata . . . applies only when there exists a coalescence of four 

factors: (1) identity of the thing sued upon or for; (2) identity of the 

causes of action; (3) identity of the persons or parties to the action; and 

(4) identity of the quality or capacity of the parties suing or being sued.

Robinson v. Frye, 192 A.3d 1225, 1231 (Pa. Cmwlth. 2018) (internal quotations 

omitted). Res judicata also bars those claims that the parties could have litigated if 

they were part of the same action. Id.

Collateral estoppel, or issue preclusion, prevents issues of fact or law from 

relitigation in a new suit where, in a prior suit, (1) the same issues were (2) necessary 
21

for a final judgment on the merits, (3) the party against whom collateral estoppel is 

asserted was a party or in privity with a party to the prior action, and (4) the party 

against whom collateral estoppel is asserted had a full and fair opportunity to litigate 

the issue. Id. at 1232. The issues of law or fact from the prior action “must be 

identical to the one presented in the later action” in order for res judicata or collateral 

estoppel to apply. Blair v. Bureau of Prof’l & Occupational Affairs, State Bd. of 

Nursing, 72 A.3d 742, 754-55 (Pa. Cmwlth. 2013).

While Petitioners both had applications before the Board previously, the

Petition does not raise the same issues that were before the Board nor issues that 

Petitioners could have raised before the Board. Petitioners do not seek 

retrospective relief with regard to the denial of their applications for licensure, i.e., 

that they be granted a license. Before the Board, Petitioners sought licensure. Before 

this Court, Petitioners seek declaratory and injunctive relief as to the averred 

unconstitutionality of the good moral character requirement. The identity of the 

things sued for and the causes of action are not the same. Moreover, the Board was 

unable to provide a remedy for the facial constitutional challenge Petitioners now 

raise while Petitioners’ applications were under consideration and would not be able 

to declare the requirement unconstitutional now even if Petitioners currently 

reapplied, as the Board contends that they should. Further, although the Board could 

change its interpretation or application of the good moral character requirement, as 

its arguments appear to suggest, (see Board’s Br. at 11), this would not alter the 

existence of the language in the Beauty Culture Law that Petitioners allege to be 

unconstitutional.

Accordingly, exhaustion, res judicata, and collateral estoppel do not apply to

the claims in Petitioners’ Petition, and these POs are overruled.
22

d. Untimeliness

The Board argues that the Petition is untimely, as it is an appeal of the Board’s 

orders denying the licenses filed more than 30 days after the denials were issued. In 

the Board’s view, Petitioners now assert that the good moral character requirement 

is unconstitutional rather than timely appealing the adjudications of which they 

complain. Therefore, the Petition should be dismissed.

Petitioners respond that they do not seek to challenge their initial license 

denials, as explicitly detailed in the Petition. Petitioners assert that they are not 

seeking to establish through their requested relief that they had good moral character 

when they applied for licenses or even that they have good character now; they 

challenge only the constitutionality of the good moral character requirement. As a 

result, Petitioners argue that the Petition is not a veiled appeal of their license denials

but is intended only to remove an unconstitutional requirement from the licensure 

process. This Court has not considered petitioners, in our original jurisdiction, to be 

pursuing de facto appeals of administrative proceedings unless the issues are 

identical, Petitioners assert, which is not the case here. 

Parties seeking review of a Board’s order issuing a denial must appeal to this 

Court within 30 days of the final order. Section 702 of the Administrative Agency 

Law, 2 Pa. C.S. § 702; Pennsylvania Rule of Appellate Procedure 1512(a)(1), 

Pa.R.A.P. 1512(a)(1). Petitioners aver in the Petition that they “are not challenging 

their initial license denials or seeking damages based on those denials. They are 

seeking relief only prospectively, based on the unconstitutional burden the good 

[moral] character requirement is imposing on them now.” (Petition ¶ 122 (emphasis 

added).) On the face of the Petition, it is evident that Petitioners are not seeking 

review of the Board’s final denials of their license applications in this action seeking 
23

declaratory and injunctive relief. Thus, this is not an untimely appeal from the 

Board’s orders, and this PO is overruled.

e. Statute of Limitations 

The Board argues that Petitioners’ claims are barred by the two-year statute 

of limitations set forth in Section 5524(2) and (7) of the Judicial Code, 42 Pa. C.S. 

§ 5524(2), (7), for actions asserting violations of the Pennsylvania Constitution. 

(Board’s Br. at 20 (citing Metzger v. Pike Cty. (Pa. Cmwlth., No. 432 C.D. 2012, 

filed Dec. 13, 2012); Storch v. Miller, 585 A.2d 1173 (Pa. Cmwlth. 1991)).) 

According to the Board, the Board’s actions forming the basis for Petitioners’ 

Petition occurred in 2015 and 2016, meaning the two-year statute of limitations bars 

the present action. Accordingly, the Board asks us to dismiss the Petition.

Petitioners respond that the plain text of the subsections of Section 5524 upon 

which the Board relies are clear that they apply only to tort damages. Petitioners, 

however, seek “prospective remedies against an unconstitutional statute,” not 

damages. (Petitioners’ Br. at 24.) Petitioners disagree with the authority relied upon 

by the Board, arguing that it is unclear that Section 5524 applies to constitutional 

claims at all. Petitioners suggest that no statute of limitations applies and because 

Petitioners are facing an injury today based on an unconstitutional requirement, they 

should be able to institute suit now.

Subsections (2) and (7) of Section 5524 provide that the following actions be 

commenced within two years:

(2) [a]n action to recover damages for injuries to the person or for the 

death of an individual caused by the wrongful act or neglect or unlawful 

violence or negligence of another.

. . . .
24

(7) [a]ny other action or proceedings to recover damages for injury to 

person or property which is founded on negligent, intentional, or 

otherwise tortious conduct or any other action or proceeding sounding 

in trespass, including deceit or fraud, except an action or proceeding 

subject to another limitation specified in this subchapter.

42 Pa. C.S. § 5524(2), (7). Petitioners do not seek damages for injury to person or 

property or even damages for a constitutional violation. Petitioners seek declaratory 

and injunctive relief on the question of the facial constitutionality of a statutory 

provision. Therefore, the two-year statute of limitations in Section 5524 does not 

apply, and this PO is overruled.

IV. Conclusion

Petitioners’ claims are adequately developed, and Petitioners allege they will 

suffer hardship if judicial review of these claims is denied; thus, the claims are ripe 

for consideration. Petitioners also have standing to bring this declaratory judgment 

because they have a substantial, direct, and immediate interest in pursuing the 

current Petition challenging the constitutionality of the good moral character 

requirement in Section 5 of the Beauty Culture Law. Because Petitioners seek 

declaratory and injunctive relief on a facial constitutional challenge and are not 

appealing the Board’s denial of their license applications, the claims are not barred 

by a failure to exhaust administrative remedies, collateral estoppel, or res judicata 

and the Petition is not untimely. Finally, Petitioners seek declaratory relief and not 

damages; thus, their claims are not barred by the two-year statute of limitations. 
25

Accordingly, we overrule the POs and direct the Board to file an Answer to 

the Petition.

_____________________________________

RENÉE COHN JUBELIRER, Judge

Judge Fizzano Cannon did not participate in this decision.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Haveman and :

Amanda Spillane, :

Petitioners :

 :

v. : No. 765 M.D. 2018

 : 

Bureau of Professional and :

Occupational Affairs, State Board of :

Cosmetology of the Commonwealth :

of Pennsylvania, :

Respondent :

O R D E R

NOW, December 9, 2019, the Preliminary Objections of the Bureau of 

Professional and Occupational Affairs, State Board of Cosmetology of the 

Commonwealth of Pennsylvania (Board) are OVERRULED. The Board is directed 

to file an answer within thirty (30) days of the date of this Order.

The Board’s November 14, 2019 Application in the Nature of a Motion for 

Protective Order/Motion for Stay is DENIED.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Haveman and Amanda Spillane, :

Petitioners :

:

 v. : No. 765 M.D. 2018

: ARGUED: September 9, 2019

Bureau of Professional and Occupational :

Affairs, State Board of Cosmetology of the :

Commonwealth of Pennsylvania, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION BY

SENIOR JUDGE LEADBETTER FILED: December 9, 2019

I must respectfully dissent because I believe this action is barred by the 

doctrine of claim preclusion. Neither East Coast Vapor, LLC v. Pennsylvania 

Department of Revenue, 189 A.3d 504 (Pa. Cmwlth. 2018), upon which the majority 

relies, nor Parsowith v. Department of Revenue, 723 A.2d 659 (Pa. 1999), upon 

which East Coast Vapor relies, involve that doctrine. While it is true that a facial 

challenge to the constitutionality of a statute cannot be addressed by an 

administrative agency, it can be addressed on an appeal to a court from an agency’s 

adjudication. Because a constitutional claim can be raised in such a fashion, I do not 

believe that the law or sound policy permits piecemeal litigation of claims that would 

otherwise be subject to the preclusion doctrine.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge