           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
Culture Law1 is 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.


                                                 2
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,



                                          3
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.




                                          4
      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.)




                                          5
             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 “time-
consuming 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.)



                                            6
            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.


                                                7
       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.


                                             8
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.)


                                                9
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 “full-
fledged 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

                                          10
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



                                          11
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,



                                          12
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



                                         13
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.




                                           14
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



                                             15
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.


                                               16
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



                                          17
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.



                                           18
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.


                                              19
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


                                           20
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.



                                            21
   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



                                            22
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.

      ....


                                         23
      (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.




                                          24
      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.




                                        25
        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        :

                                     ORDER


      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
