                            [J-98-2018][M.O. - Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT



IN RE: PETITION FOR ENFORCEMENT              :   No. 35 EAP 2016
OF SUBPOENAS ISSUED BY THE                   :
HEARING EXAMINER IN A                        :   Appeal from the Order of the
PROCEEDING BEFORE THE BOARD OF               :   Commonwealth Court entered on 9/1/16
MEDICINE                                     :   at No. 373 MD 2016 granting the
                                             :   Petition to Enforce Subpoenas
                                             :
                                             :
APPEAL OF: M.R.                              :   ARGUED: December 5, 2019




                                DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                  DECIDED: August 20, 2019


       As the majority explains, Section 422.9(c) of the Medical Practice Act of 1985

states that the “[B]oard [of Medicine] is authorized to apply to Commonwealth Court to

enforce its subpoenas.” 63 P.S. §422.9(c). Given that Appellee (Dr. DeMichele), and

not the Board, commenced the proceedings in the Commonwealth Court, the majority

reasons that the Commonwealth Court lacked subject matter jurisdiction. See Majority

Opinion, slip op. at 9.

       In my view, however, the issue presented does not relate to subject matter

jurisdiction, but rather, concerns standing, which “focuses on the party seeking to get

his complaint before a . . . court and not on the issues he wishes to have adjudicated.”

Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 1952 (1968).           Subject matter

jurisdiction, on the other hand, connotes “the competency of the court to determine
controversies of the general class to which the case presented for consideration

belongs.” In re Administrative Order No. 1–MD–2003, 594 Pa. 346, 354, 936 A.2d 1, 5

(2007) (citations omitted). The Commonwealth Court possesses competency here, as

reflected in the majority’s discussion of several avenues per which that court’s

jurisdiction may be invoked to secure the enforcement of subpoenas issued from the

administrative agency level. See Majority Opinion, slip op. at 10-11.

       Since I believe that this case concerns standing, I note that such matters, in

Pennsylvania, are generally deemed to be non-jurisdictional, and therefore, implicate

the requirement of issue preservation. See, e.g., In re Nomination Petition of deYoung,

588 Pa. 194, 201, 903 A.2d 1164, 1168 (2006) (“This Court has consistently held that a

court is prohibited from raising the issue of standing sua sponte.”).          Certainly, the

present matter is more complex, given that the governing standing requirement is

embedded in a statute. Nevertheless, for good reason, I submit, the default position

concerning statutory standing requirements should be that they are non-jurisdictional

and waivable, consistent with our longstanding prudential standing requirements, unless

the Legislature clearly expresses an intent to elevate their effect to jurisdictional status.

       This approach is consistent with the direction in which the Supreme Court of the

United States has been moving in recent opinions. As Justice (then Judge) Kavanaugh

has explained:

              In recent years, the terminology of jurisdiction has been put
              under a microscope at the Supreme Court. And the Court
              has not liked what it has observed -- namely, sloppy and
              profligate use of the term “jurisdiction” by lower courts and,
              at times in the past, the Supreme Court itself. These recent
              Supreme Court opinions have significantly tightened and
              focused the analysis governing when a statutory requirement
              is jurisdictional.




                             [J-98-2018][M.O. – Wecht, J.] - 2
Grocery Mfrgs. Ass’n v. EPA, 693 F.3d 169, 183-84 (D.C. Cir. 2012) (Kavanaugh, J.,

dissenting), cited with approval in Lexmark Int’l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 128 n.4, 134 S. Ct. 1377, 1387 n.4 (2014).1

         As part of this reexamination, the Supreme Court has established the following

standard:
               If the Legislature clearly states that a threshold limitation on
               a statute’s scope shall count as jurisdictional, then courts
               and litigants will be duly instructed and will not be left to
               wrestle with the issue. But when Congress does not rank a
               statutory limitation on coverage as jurisdictional, courts
               should treat the restriction as nonjurisdictional in character.
Arbaugh v. Y&H Corp., 546 U.S. 500, 515, 126 S. Ct. 1235, 1245 (2006); see also

Dodson, Jurisdiction and Its Effects, 105 GEO. L.J. at 626 (explaining that “a federal

court confronted with a question of jurisdictionality must consider, using textual and

contextual cues, whether Congress has clearly stated that the limit at issue is

jurisdictional”). I find this approach to be well-reasoned and would adopt it here.2


1 See also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90, 118 S. Ct. 1003,
1010 (1998) (“’Jurisdiction,’ it has been observed, ‘is a word of many, too many,
meanings.’” (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).
See generally Scott Dodson, Jurisdiction and Its Effects, 105 GEO. L.J. 619, 619-21
(2017) (explaining that “[j]urisdiction is experiencing an identity crisis” and “[t]he cracks
in jurisdictional theory and doctrine have begun to expose themselves”).

2   Along these lines, the following commentary harmonizes closely with my thoughts:

               [P]urely formalist approaches to characterization doctrine --
               insistence on bright-line rules for distinguishing . . .
               jurisdictional from nonjurisdictional rules -- are ill advised. A
               functional and incremental approach to legal characterization
               is not just theoretically sound, but also practically necessary
               for stable, workable law in this area.

Karen Petroski, Statutory Genres: Substance, Procedure, Jurisdiction, 44 LOY. U. CHI.
L.J. 189, 190 (2012). Since, however, “habits of legal characterization are pervasive
(continued…)
                             [J-98-2018][M.O. – Wecht, J.] - 3
      Responding to my position, the majority stresses that the Commonwealth Court

is not a court of general jurisdiction. See Majority Opinion, slip op. at 14 n.7. But the

federal courts are not courts of general jurisdiction either, see Owen Equip. & Erection

Co. v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 2403 (1978) (“It is a fundamental

precept that federal courts are courts of limited jurisdiction.”), which is why I consider

the Supreme Court of the United States’ progressive reevaluation of jurisdictional

considerations to be pertinent here. The concern of that Court is with not routinely

elevating the many and various prescriptions found within statutes -- such as standing

requirements and ordinary claims processing rules -- to jurisdictional status in the

absence of a clear legislative mandate. And I find the Supreme Court’s reasoning and

approach to be quite persuasive in the present context.

      Again, to me, in the simplest terms, the subject matter in this case is the

enforcement of subpoenas, and the statutory specification concerning who may bring

the action is a matter of standing. After examining the textual and contextual cues, I

find no evidence that the Legislature intended to curtail the jurisdiction of the

Commonwealth Court relative to such enforcement.

      Moreover, there should be avenues available for respondents in professional

licensing disciplinary cases to seek enforcement of subpoenas in the Commonwealth

Court.3 One set of commentators captured the central reasoning as follows:


(…continued)
and internalized,” id. at 240, it seems that concomitant changes will continue to suffer
from fits and starts. Compare Majority Opinion, slip op. at 9-15, with In re Roca, 643
Pa. 585, 613 n.17, 173 A.3d 1176, 1193 n.17 (2017) (“We observe . . . that jurisdictional
questions may involve issues that go beyond whether the controversy at hand falls into
a general category.”).

3 Although the General Assembly has invested the courts of common pleas with
appellate jurisdiction over certain determinations by Commonwealth agencies, see 42
(continued…)
                           [J-98-2018][M.O. – Wecht, J.] - 4
             Where an administrative agency has issued a subpoena at
             the request of a party, and the subpoenaed witness has
             refused to appear, a problem of enforcement presents itself.
             The normal procedure is appeal to the courts for an order
             implementing the subpoena -- violation of the order then
             being punishable as contempt of court. The difficulty lies in
             the fact that most statutes creating administrative agencies
             confer the right to appeal for enforcement only upon the
             administrative body. But if the agency has power to
             subpoena on behalf of the party, it would seem that a court
             should hold that the agency has both the right and the duty
             to appeal for enforcement of subpoenas so issued.
Notes and Legislation, Subpoenas and Due Process in Administrative Hearings, 53

HARV. L. REV. 842, 849 (1940) (emphasis added).

      Consistent with these observations, I suggest that a respondent in a professional

disciplinary proceeding should be allowed to move for the licensing board to commence

enforcement proceedings in the Commonwealth Court.4 Should the board decline to do

so, the respondent should be permitted to attempt to perfect an interlocutory appeal,

either as of right under the collateral order doctrine where applicable, see Pa.R.A.P.

313, or permissively. See 42 Pa.C.S. §702(b); Pa.R.A.P. 312 & Ch. 13. Personally, I




(…continued)
Pa.C.S. §933(a)(1), these courts do not have jurisdiction over appeals in professional
licensing disciplinary matters. See id. Rather, as the majority explains, appellate
jurisdiction lies in the Commonwealth Court. See Majority Opinion, slip op. at 10 (citing
42 Pa.C.S. §763(a) (final orders)); see also id. §702(a) (interlocutory orders).

4 I say “the board,” because technically there is no statutory authorization for hearing
examiners to proceed before the Commonwealth Court, see 63 P.S. §2203(c); whereas,
the Board of Medicine, at least, does have such authority. See id. §422.9(c).
Accordingly, if difficulties with enforcement are anticipated, it would be preferable to
secure a subpoena through the licensing board, rather than from a hearing examiner.



                           [J-98-2018][M.O. – Wecht, J.] - 5
would take a dim view of a licensing board that would refuse to uphold its own

commands and the dignity of its office, absent substantial justification.5

       A licensed professional subject to disciplinary action should enjoy the prerogative

to secure subpoenas for witnesses and documents reasonably necessary to a defense.

Accord Notes and Legislation, Subpoenas and Due Process in Administrative Hearings,

53 HARV. L. REV. at 850 (discussing “the serious consequences attendant upon the

revocation of a license to practice a profession”). It seems to be just as clear that a

reasonable avenue for enforcement should be available to such a respondent.

Ultimately, of course, the merits determination will turn upon a balancing of any

privileges that may be held by the subpoena’s recipient against the interests of the

respondent.

       Here, however, there is no need to proceed on such a circuitous route, since

there was never any objection lodged to Appellee’s standing to pursue an enforcement

action in the Commonwealth Court. In such circumstances, I respectfully differ with the

majority’s determination that subject matter jurisdiction is implicated such that sua

sponte invocation of a statutory standing requirement is appropriate. And there would

seem to be no question that Appellee is aggrieved by the lack of enforcement of

subpoenas for purposes of the ordinary prudential standing requirements, which, in any

event, have been waived.


5 Another possibility is that the recipient of the subpoena might petition to quash. If
such a motion is granted, again, an interlocutory appeal might be justified on the above
theories. I would also think that a board would take a disfavored view of a subpoena
recipient who simply refuses to honor the subpoena without advancing substantial
justification via a motion.

As a caveat, I note that several of the recipients of the subpoenas in this case are out-
of-state residents, and a different analysis may apply to them given jurisdictional
considerations and the potential applicability of the laws of another state.


                            [J-98-2018][M.O. – Wecht, J.] - 6
      Accordingly, I respectfully dissent and would proceed to the merits of the

substantive questions presented by Appellant.




                          [J-98-2018][M.O. – Wecht, J.] - 7
