        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elemental Health Group, LLC,              :
                        Petitioner        :
                                          :
             v.                           :   No. 3 M.D. 2018
                                          :   Argued: June 7, 2018
Department of Health and Terrapin         :
Investment Fund 1, LLC,                   :
                        Respondents       :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                          FILED: June 29, 2018


             Before this Court are the preliminary objections filed separately by the
Commonwealth of Pennsylvania, Department of Health (Department) and Terrapin
Investment Fund 1, LLC (Terrapin) (collectively, Respondents) to a Petition for
Review in the Nature of a Complaint in Equity Seeking Mandamus or Declaratory
Relief (Petition) filed by Elemental Health Group, LLC (Elemental) in this Court’s
original jurisdiction, and Elemental’s preliminary objection to the Department’s
preliminary objections. Respondents contend that Elemental failed to exhaust
administrative remedies prior to initiating the instant action, thereby divesting this
Court of jurisdiction over the matter.1 Upon review, we sustain, in part, the
Department’s preliminary objections, sustain Terrapin’s preliminary objection,
dismiss as moot Elemental’s preliminary objection, and dismiss Elemental’s
Petition.
                  As background, the General Assembly enacted the Pennsylvania
Medical Marijuana Act (Act),2 which took effect on May 17, 2016, to establish a
framework for the legalization of medical marijuana in the Commonwealth for
certain medical conditions.                 The Act identified the Department as the
Commonwealth agency responsible for administering the Act and authorized the
Department to promulgate regulations, including temporary regulations, necessary
to carry out the Act. See Section 301 of the Act, 35 P.S. § 10231.301; Section 1107
of the Act, 35 P.S. § 10231.1107. Pursuant to this authority, the Department
promulgated temporary regulations. See 28 Pa. Code §§ 1131.1-1191.33.
                  The Act vests authority in the Department to issue permits “to medical
marijuana organizations to authorize them to grow, process or dispense medical
marijuana.” 35 P.S. § 10231.301(a)(1). The Act recognizes two types of medical
marijuana          organizations       to     which         the   Department        may       issue
permits: (1) grower/processors, which would be permitted to grow and process
medical marijuana; and (2) dispensaries, which would be permitted to dispense
medical marijuana products. See Section 601 of the Act, 35 P.S. § 10231.601; 28 Pa.
Code § 1141.21. The Department established six medical marijuana regions to
which        it   would    assign     permits.        See     Section     603(d)   of   the   Act,
35 P.S. § 10231.603(d); 28 Pa. Code § 1141.24(a). Between February 20, 2017, and

        1
            The Department further objected on other grounds that will be discussed later in this
opinion.
        2
            Act of April 17, 2017, P.L. 84, 35 P.S. §§ 10231.101-.2110.

                                                  2
March 20, 2017, the Department accepted applications from entities interested in
obtaining a limited number of permits.             During the application period, the
Department received 457 applications—177 for growers/processors and 280 for
dispensaries. The Act and the temporary regulations promulgated by the Department
govern       the     application    review.   35   P.S.   §    10231.603(a.1);     28    Pa.
Code §§ 1141.27-.34.
                   The application for a grower/processor permit was comprised of six
parts, labeled A through F.3 Each part contained multiple questions, with some
questions requiring a yes/no answer and others requiring a narrative response.
Further, the Department required applicants to submit twelve attachments, labeled
A through L. The Department scored applications based upon the responses therein,
with each application receiving a score based upon a maximum of 1,000 total points.
Should the Department decline to award a permit, the applicant may appeal. The
Department’s temporary regulations, the Administrative Agency Law,4 and the
General Rules of Administrative Practice and Procedure (GRAPP) 5 establish
remedies to challenge administrative actions taken by the Department, including
permit denials.
                   Elemental submitted an application for a grower/processor permit in
Region 4.6 The Department denied Elemental’s application. The Department sent
Elemental a denial notice, wherein the Department notified Elemental that it did not

       3
         The application can be found at https://www.pa.gov/guides/pennsylvania-medical-
marijuana-program/#GrowersandProcessors (last accessed June 11, 2018).
       4
           2 Pa. C.S. §§ 501-508.
       5
           1 Pa. Code §§ 31.1-35.251.
       6
        Region 4 is comprised of the following counties: Bradford, Centre, Clinton, Columbia,
Lycoming, Montour, Northumberland, Potter, Snyder, Sullivan, Tioga, and Union. 28 Pa.
Code § 1141.24(a)(4).

                                              3
receive a permit because its application score was not among the top two scores for
Region 4. (Pet., Exhibit D.) In Region 4, the Department awarded grower/processor
permits to the recipients of the two highest application scores—GTI Pennsylvania,
LLC and Terrapin. Elemental finished third. The denial notice further provided that
Elemental could file an appeal wherein Elemental must respond to the Department’s
reason for denying Elemental’s application. (Id.)
            On June 30, 2017, Elemental filed a Notice of Appeal pursuant to 1 Pa.
Code § 35.20, challenging the Department’s denial, claiming that Terrapin’s
application contained a false statement and that the Department erroneously awarded
points to Terrapin’s application based upon this false statement. (Pet., Exhibit E.)
Elemental argued that, but for this erroneous award of points, Elemental would have
been one of the top two scorers in Region 4. (Id.)
            Thereafter, in September 2017, Elemental proceeded to initiate three
more pieces of litigation. First, on September 11, 2017, Elemental filed a Formal
Complaint with the Department pursuant to 1 Pa. Code § 35.9, claiming that Terrapin
violated the Act by making false statements in an effort to achieve a higher
application score. (Pet., Exhibit G.) Second, also on September 11, 2017, Elemental
filed with the Department pursuant to 1 Pa. Code § 35.19 a Petition for Declaratory
Order, seeking the Department to declare Elemental as one of the top two scorers for
Region 4, thus awarding it a grower/processor permit. (Pet., Exhibit H.) Third, on
September 14, 2017, Elemental filed with the Department pursuant to 1 Pa.
Code § 35.23 a Formal Protest of the Department’s approval of Terrapin’s permit.
(Pet., Exhibit I.) This Protest, similar to the documents Elemental submitted prior,
argued that Terrapin made false statements in its permit application and that the




                                         4
Department awarded points to Terrapin’s application because of this misstatement.
(Id.)
             Notwithstanding the pendency of these actions, on January 5, 2018,
Elemental filed the Petition in this Court’s original jurisdiction. The Petition raises
two separate due process violations. First, Elemental asserts that the Department is
not affording Elemental an adequate administrative appeal process that can afford
complete relief. (Pet. at ¶¶ 86-87.) Second, Elemental asserts that the Department
scored the applications inconsistently and arbitrarily and that the secrecy
surrounding the scoring process deprives Elemental of a fair opportunity to receive
a permit. (Pet. at ¶¶ 88-90.) The Petition seeks mandamus relief in the form of this
Court ordering the Department to award Elemental a grower/processor permit for
Region 4. Alternatively, Elemental seeks declaratory relief in the form of this Court
declaring that (1) all matters and all claims be before the hearing officer, with the
hearing officer directed to adjudicate them all and award such relief as is
proper, (2) Elemental be granted the right to depositions and subpoenas, as well
as presenting such evidence at the hearing, and (3) any other proper relief.
(Pet. at ¶ 125.)
             In support of its claim that the Department is not affording Elemental
an adequate administrative appeal process, Elemental claims that the Department
wrongfully constrained the choice of hearing officers and the scope of their authority
in such a way that deprives Elemental of a meaningful administrative appeal process
capable of affording complete relief. (Pet. at ¶ 82.) In support thereof, Elemental
avers the following. After Elemental filed its Formal Protest, the hearing officer
issued a standing practice order outlining the duties and powers of the hearing
officer. (Pet., Exhibit K.) The standing practice order also articulated what items


                                          5
the parties are obligated to include in their pre-hearing conference memoranda, in
addition to providing that parties are expected to exchange copies of all exhibits that
they propose to offer into evidence prior to the hearing. (Id.) Elemental takes issue
with this procedure, as the standing practice order advised that GRAPP does not
provide for discovery, thereby precluding Elemental from subpoenaing necessary
documents to prove that it achieved one of the top two scores in Region 4.
(Pet. at ¶¶ 50-53.)   Elemental also alleges that the hearing officer informed
Elemental that the content of its hearing would be limited to only Elemental’s
application and that the hearing officer could not recommend a rescoring of
Terrapin’s application or recommend that the Department grant Elemental a permit.
(Pet. at ¶¶ 57, 62-63.) This restriction, as argued by Elemental, effectively serves to
truncate Elemental’s opportunity to receive adequate relief, as Elemental is
precluded from presenting the thrust of its argument—Terrapin made a misstatement
on its application, the Department awarded points for this misstatement, and, but for
this misstatement, Elemental would have been awarded a permit for achieving one
of the top two scores in Region 4. (Pet. at ¶¶ 58, 65.) Elemental contends that the
hearing officer should have the authority to determine whether Elemental achieved
one of the top two scores for Region 4, which thereby necessitates the introduction
of evidence regarding other entities’ applications. (Pet. at ¶ 85.) The limited scope
of the hearing, however, frustrates both Elemental’s opportunity to present its case
and the hearing officer’s ability to determine the question at issue. (Id.)
             In support of its allegation that the Department is scoring the
applications inconsistently and arbitrarily, Elemental references the alleged
misstatement on Terrapin’s application. Specifically, the application includes a
question regarding whether the applicant intends on siting a facility in a “financially


                                           6
distressed municipality” pursuant to the Municipalities Financial Recovery Act
(Act 47).7 The Department represented that an affirmative response to this question
would positively affect an applicant’s score. (Pet. at ¶ 12.) While Terrapin’s
application represented that it would be siting a facility in a financially distressed
municipality, the location in which Terrapin sought to place a facility is not a
financially distressed municipality under Act 47. (Pet. at ¶ 32.) Elemental alleges
that the Department awarded points to Terrapin’s application for being located in a
financially distressed municipality notwithstanding this misrepresentation. (Id.)
Elemental avers that the Department has an obligation to ensure that those that
receive permits are of good character and fit to hold permits, and that the Department
subverted this duty by failing to gather the necessary information to determine
applicants’ character and fitness. (Pet. at ¶¶ 72, 74.) Elemental alleges that
Terrapin’s misstatement is in violation of 18 Pa. C.S. § 4904, relating to unsworn
falsifications to authorities, and the Department failed to make a necessary
determination regarding Terrapin’s character, fitness, and suitability for a
grower/processor permit in light of this misstatement. (Pet. at ¶ 76.)
               Further, although the Act provides unsuccessful applicants the
opportunity for post-award debriefings, Elemental alleges that, at its debriefing, it
learned that the application scoring was more specific than described in the
application itself. (Pet. at ¶ 94.) Specifically, Elemental learned that the Department
used previously-unmentioned criteria to score the applications. (Pet. at ¶ 96.)
               The Department and Terrapin responded by filing separate preliminary
objections in the nature of a demurrer. The Department objected on three grounds.
First, the Department demurred that Elemental failed to file its Petition within the

      7
          Act of July 10, 1987, P.L. 246, as amended, 53 P.S. §§ 11701.101-.712.

                                               7
applicable six-month statute of limitations. See 42 Pa. C.S. § 5522(b)(1). Second,
the Department demurred to Elemental’s use of a mandamus action, arguing that
mandamus is only proper for the compulsion of mandatory actions, whereas the
Department’s award of permits is discretionary. Third, the Department alleged that
Elemental failed to exhaust administrative remedies, thereby divesting this Court of
jurisdiction.    Terrapin, akin to the Department, demurred on the ground that
Elemental failed to exhaust administrative remedies prior to filing its Petition.
                Elemental responded to Respondents’ preliminary objections.
Regarding the objection to exhaustion of administrative remedies, Elemental argued
that the doctrine does not apply where the administrative remedy is incomplete, and
such is the case here. Further, Elemental filed a preliminary objection to the
Department’s objection regarding the applicable statute of limitations, arguing that
an objection based on statute of limitations must be raised in an answer and new
matter, as opposed to a preliminary objection.
                After briefing and oral argument, the parties’ preliminary objections
and Elemental’s Petition are ready for disposition. For the purposes of efficiency,
and because we dispose of the Petition on these grounds, we will evaluate Terrapin’s
and the Department’s objections alleging a failure to exhaust administrative
remedies together.
                In ruling on preliminary objections, we accept as true all well-pleaded
material allegations in the petition for review and any reasonable inferences that we
may draw from the averments.              Meier v. Maleski, 648 A.2d 595, 600
(Pa. Cmwlth. 1994).       The Court, however, is not bound by legal conclusions,
unwarranted inferences from facts, argumentative allegations, or expressions of
opinion encompassed in the petition for review. Id. We may sustain preliminary


                                            8
objections only when the law makes clear that the petitioner cannot succeed on the
claim, and we must resolve any doubt in favor of the petitioner. Id. “We review
preliminary objections in the nature of a demurrer under the above guidelines and
may sustain a demurrer only when a petitioner has failed to state a claim for which
relief may be granted.” Armstrong Cty. Mem’l Hosp. v. Dep’t of Pub. Welfare,
67 A.3d 160, 170 (Pa. Cmwlth. 2013).
             Respondents contend that Elemental failed to exhaust its administrative
remedies before invoking this Court’s original jurisdiction. This Court’s original
jurisdiction extends to “all civil actions or proceedings . . . [a]gainst the
Commonwealth government.” 42 Pa. C.S. § 761. A party, however, must first
exhaust its administrative remedies before invoking this Court’s jurisdiction in
challenging a final agency adjudication. See Canonsburg Gen. Hosp. v. Dep’t of
Health, 422 A.2d 141, 144 (Pa. 1980). The courts must refrain from exercising
equity jurisdiction when there exists an adequate statutory remedy. Arsenal Coal
Co. v. Dep’t of Envtl. Res., 477 A.2d 1333, 1338 (Pa. 1984); Funk v. Cmwlth.,
71 A.3d 1097, 1101 (Pa. Cmwlth. 2012).
             The doctrine of exhaustion of administrative remedies is intended to
prevent the premature interruption of the administrative process, which would
restrict the agency’s opportunity to develop an adequate factual record, limit the
agency in the exercise of its expertise, and impede the development of a cohesive
body of law in that area. See Empire Sanitary Landfill, Inc. v. Dep’t of Envtl. Res.,
684 A.2d 1047, 1053 (Pa. 1996). “The doctrine operates as a restraint on the exercise
of a court’s equitable powers and a recognition of the legislature’s direction to
comply with statutorily-prescribed remedies.” Id.




                                         9
             In objecting on these grounds, the Department cites to this Court’s
recent en banc decision in Keystone ReLeaf LLC v. Pennsylvania Department of
Health, __ A.3d __ (Pa. Cmwlth., No. 399 M.D. 2017, filed April 20, 2018)
(en banc), wherein we sustained preliminary objections in a situation nearly identical
both factually and procedurally to the instant matter. In Keystone ReLeaf, a business
(Keystone ReLeaf) that applied for a grower/processor permit appealed the
Department’s denial of its application and concurrently brought an action in this
Court’s original jurisdiction against the Department and those entities to whom the
Department awarded permits.        Keystone ReLeaf alleged that the Department
violated due process by failing to afford Keystone ReLeaf an adequate
administrative appeal process and that the Department scored the applications
inconsistently and arbitrarily. The Department responded by filing preliminary
objections in the nature of a demurrer, arguing that Keystone ReLeaf failed to
exhaust its administrative remedies prior to instituting the action. This Court, after
an extensive analysis on the availability and adequacy of administrative remedies
available to Keystone ReLeaf, sustained the Department’s preliminary objections.
In so doing, we opined:
             [Keystone ReLeaf]’s challenges regarding the criteria
             applied to scoring applications in the permitting process
             fall squarely within the Department’s expertise.
             [Keystone ReLeaf] is asking this Court to prejudge issues
             that are committed for initial resolution to an
             administrative forum. Because the issues involve the
             Department’s expertise, such challenges must be brought
             before the Department before resorting to judicial review.
             Although [Keystone ReLeaf] filed administrative appeals
             from its denials, [Keystone ReLeaf] has not meaningfully
             participated in the administrative appeal process. During
             the pendency of its administrative appeals, [Keystone
             ReLeaf] filed its original jurisdiction action in this Court.
             [Keystone ReLeaf] diverted course because it fears it will
                                          10
             not get the answers that it seeks regarding the scoring or
             an opportunity to prove that the permitting process was
             invalid. However, having failed to go through the
             administrative appeal process, [Keystone ReLeaf]’s
             allegations regarding the process are speculative at best.
             The appropriate way to advance [Keystone ReLeaf]’s
             arguments in this regard is to actually participate in the
             administrative appeal process, examine the Department’s
             exhibits and cross-examine the witnesses who will testify
             about the permitting process, including the evaluation and
             scoring of permit applications. If the Department refuses
             to provide information, such matters are appropriate to
             raise to this Court on appeal. By not participating in the
             administrative appeal process in a meaningful way, there
             is no basis upon which this Court can conclude that the
             process is wholly inadequate.

Keystone ReLeaf, __ A.3d at __, slip op. at 9 (internal citations omitted). This Court
concluded that because Keystone ReLeaf’s administrative appeal was ongoing,
judicial intervention would be premature and inappropriate. Id., __ A.3d at __, slip
op. at 10. Further, we determined that the current administrative appeal process
“offers unsuccessful applicants an adequate remedy to challenge their permit denials
and the permitting process.” Id., __ A.3d at __, slip op. at 10.
             In an attempt to distinguish Keystone ReLeaf from the instant matter,
Elemental argues that Keystone ReLeaf involved a challenge to the permitting
process, whereas Elemental challenges “a flawed administrative process that
protects a company that has false answers on its permit application to the point of
insulating their [sic] conduct from review.” (Elemental’s Br. in Opposition to
Terrapin’s Preliminary Objections at 5.) We reject Elemental’s argument.
             At its core, Elemental’s complaint is indistinguishable from that in
Keystone ReLeaf insofar as it is merely an attempt by a disappointed applicant to
seek judicial intervention prior to exhausting its administrative remedies.
Elemental’s attempt at characterizing the administrative process as flawed is an
                                         11
inference unwarranted from the facts of this case. Elemental, akin to the jilted
applicant in Keystone ReLeaf, has not meaningfully participated in the
administrative process. While Elemental alleges that the administrative appeal
process will not provide it with the relief it seeks, this Court has already concluded
that the appeal process is “not inadequate” at this stage of the proceedings.
Id., __ A.3d at __, slip op. at 9. Accordingly, the proper manner for Elemental to
advance its argument is to “participate in the administrative appeal process, examine
the Department’s exhibits[,] and cross-examine the witnesses who will testify about
the permitting process, including the evaluation and scoring of permit applications.
If the Department refuses to provide information, such matters are appropriate to
raise to this Court on appeal.” Id., __ A.3d at __, slip op. at 9. The time to invoke
this Court’s jurisdiction to seek such relief is after the conclusion of the
administrative appeal process, not before.
             Just as in Keystone ReLeaf, this Court finds itself concerned regarding
the troubling allegations cast by Elemental, particularly those that, if true, might later
prove to have unreasonably hindered Elemental’s ability to develop fully a record to
support its challenge to its non-selection. We nonetheless conclude that judicial
intervention is unnecessary until such a time that Elemental has exhausted its
avenues of administrative relief. We do not trivialize Elemental’s concerns. Rather,
we merely conclude that this is neither the proper moment nor is our original
jurisdiction the proper forum to determine the merits of Elemental’s complaint, as
there exists no compelling reason to distinguish the instant matter from Keystone
ReLeaf.




                                           12
             Accordingly, Respondents’ preliminary objections relating to
Elemental’s failure to exhaust administrative remedies are sustained, Elemental’s
preliminary objection is dismissed as moot, and Elemental’s Petition is dismissed.8




                                           P. KEVIN BROBSON, Judge




      8
         Because we dispose of the Petition on these grounds, we need not address the
Department’s preliminary objections relating to the applicable statute of limitations and
Elemental’s alleged improper use of mandamus.

                                           13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elemental Health Group, LLC,           :
                        Petitioner     :
                                       :
            v.                         :   No. 3 M.D. 2018
                                       :
Department of Health and Terrapin      :
Investment Fund 1, LLC,                :
                        Respondents    :



                                     ORDER


            AND NOW, this 29th day of June, 2018, the preliminary objections of
the Commonwealth of Pennsylvania, Department of Health and Terrapin Investment
Fund 1, LLC, relating to Elemental Health Group, LLC’s (Elemental) failure to
exhaust administrative remedies, are SUSTAINED. The preliminary objection of
Elemental is DISMISSED AS MOOT, and Elemental’s Petition for Review in the
Nature of a Complaint in Equity Seeking Mandamus or Declaratory Relief is
DISMISSED.




                                       P. KEVIN BROBSON, Judge
