Nixon v. Com.

• Decision Date: 11 December 2001
• Citation: 789 A.2d 376
• Parties: Earl NIXON, Reginald Curry, Kelly Williams, Marie Martin, Theodore Sharp, and Resources for Human Development, Inc., Petitioners, v. The COMMONWEALTH of Pennsylvania, Department of Public Welfare of the Commonwealth of Pennsylvania, Department of Aging of the Commonwealth of Pennsylvania, and Department of Health of the Commonwealth of Pennsylvania, Respondents.
• Court: Pennsylvania Commonwealth Court

789 A.2d 376

Earl NIXON, Reginald Curry, Kelly Williams, Marie Martin, Theodore Sharp, and Resources for Human Development, Inc., Petitioners, v. The COMMONWEALTH of Pennsylvania, Department of Public Welfare of the Commonwealth of Pennsylvania, Department of Aging of the Commonwealth of Pennsylvania, and Department of Health of the Commonwealth of Pennsylvania, Respondents.

Commonwealth Court of Pennsylvania.

Argued November 1, 2000.

Decided December 11, 2001.

David J. Wolfsohn, Philadelphia, for petitioners.

Jeffrey J. Wood, Harrisburg, for respondents.

Before DOYLE, President Judge, McGINLEY, SMITH, PELLEGRINI, FRIEDMAN, KELLEY and FLAHERTY, Judges.

SMITH, Judge.¹

Petitioners Earl Nixon, Reginald Curry, Kelly Williams, Marie Martin, Theodore Sharp and Resources for Human Development, Inc. (RHD), a non-profit social service organization, filed in this Court's original jurisdiction their petition for review in the nature of a complaint in equity on August 8, 2000. Petitioners seek a declaration from this Court that the criminal records provisions of Sections 501—508 of the Older Adults Protective Services Act (Act), Act of November 6, 1987, P.L. 381, as amended, added by Section 5 of the Act of December 18, 1996, P.L. 1125 (Act 169), 35 P.S. §§ 10225.501—10225.508, violate Article I, Section 1 of the Pennsylvania Constitution as applied to them. They also request the Court to permanently enjoin Respondents, the Department of Aging, the Department of Public Welfare and the Department of Health, from enforcing against Petitioners the unconstitutional provisions of the Act. Petitioners also filed their motion for summary relief pursuant to Pa. R.A.P. 1532(b). Respondents filed their preliminary objections in the nature of a demurrer asserting that the employment disqualification provisions of the Act do not violate the Pennsylvania Constitution.

I

Originally enacted on November 6, 1987, the Act established a program of protective services for the detection, prevention, reduction or elimination of abuse, neglect, exploitation and abandonment of persons within the jurisdiction of this Commonwealth who are 60 years of age or older. The Act created a system of reporting and investigating the abuse of older adults. On December 18, 1996, the Act was amended, and a chapter was added pertaining to the disqualification from employment of any individuals who had criminal records and who were employed in any facility catering to older adults.² Act 169 required criminal history background checks of all applicants for employment with covered facilities, and it prohibited a facility from hiring an applicant or retaining an employee required to submit information pursuant to Section 502(a), 35 P.S. § 10225.502(a), if the applicant or employee was convicted of certain specified criminal offenses. Section 503(a) of the Act, 35 P.S. § 10225.503(a).

The Legislature again amended the Act by the Act of June 9, 1997, P.L. 160 (Act 13). Among other changes, Act 13 rewrote the enumerated disqualifying felonies and misdemeanors in Section 503 and removed the ten-year limitation period for convictions involving lesser crimes formerly found in that section.³ Any potential employee and those employed in covered facilities for less than one year from the effective date of the Act are required to submit to criminal background checks. See Section 508(1) of the Act, 35 P.S. § 10225.508(1). Petitioners complain that nursing homes, home health care agencies, residential mental health and mental retardation facilities and other health care facilities are now prohibited from employing an individual who was convicted at any time during his or her lifetime of any one of a broad range of enumerated misdemeanors and felonies.

II

Petitioners raise three challenges to Act 13: the Legislature places no temporal limitations on convictions, the prohibition on employment extends to all positions at a covered facility and there are no exceptions to the Act nor procedural protections for assessing an individual on a case-by-case basis. To support their preliminary objections, Respondents rely upon the presumption of the constitutionality of acts of the General Assembly. They also contend that federal decisions permit legislatures to enact the type of legislation at issue here and that if the Court were to grant relief, other state statutes restricting employment opportunities might also be invalidated. Citing Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993), inter alia, Respondents state that they have no obligation to produce evidence to sustain the rationality of a statutory classification and that the one here has a reasonable basis. Moreover, the Act does not violate Petitioners' due process rights.

In ruling upon preliminary objections in the nature of a demurrer, the Court must accept as true all well-pled facts of the complaint and all reasonable inferences therefrom, and it must determine whether the facts pled are legally sufficient to permit the action to continue. Altoona Housing Authority v. City of Altoona, 785 A.2d 1047 (Pa.Cmwlth.2001). To sustain preliminary objections, it must appear with certainty to the Court that the law will permit no recovery, and all doubt must be resolved in favor of refusing to sustain the objections. Id.; Baravordeh v. Borough Council of Prospect Park, 706 A.2d 362 (Pa.Cmwlth.1998). In reaching its decision, the Court has reviewed and accepted as true, inter alia, the following well-pled facts.

Thirty years ago, in 1971, Mr. Nixon was convicted at the age of nineteen of possession of marijuana for his personal use and was sentenced to three years of probation, which he completed satisfactorily. After employment training by the Pennsylvania Office of Vocational Rehabilitation, Mr. Nixon changed his career as a small business owner and became employed in 1990 as a direct-care specialist with the Allegheny Valley School, a facility that provided care to mentally ill patients. Respondents admit that Mr. Nixon was an excellent worker, having been promoted to residential service manager at the facility two years after he began his employment there. Several years later, Mr. Nixon became employed as a resident manager for the University of Pittsburgh Medical Center at its retirement community, and he was later promoted to manager of the medical center's assisted living facility. In 1998 he obtained his personal care administrator's license from his local community college and thereafter became an administrator of the assisted living facility. Mr. Nixon ended his job at the facility in early 2000, and because of the Act he is now forever barred from holding gainful employment in any covered facility, despite his exemplary work history.

Twenty-nine years ago, in 1972, Mr. Curry was convicted at the age of nineteen for stealing $30. He was charged with larceny, now a misdemeanor, and was sentenced to eighteen months of probation, which he served without incident. Mr. Curry worked for many years providing direct services to youth and to mentally disabled individuals. From 1984 to 1991 he worked as a youth services counselor at a residential facility for delinquent youth and as a resident counselor at a community living program for mental health and mental retardation clients. In 1998 Mr. Curry began working as a driver transporting mental health and mental retardation clients for Northwest Human Services. In early 1999 he was discharged because of his 1972 conviction. Mr. Curry subsequently became employed as a residential advisor for RHD but was terminated because of Act 13 requirements. Mr. Curry is now forever barred from gainful employment in any facility covered by the Act, despite his exemplary work history.

Twenty-seven years ago, in 1974, Ms. Williams was convicted of armed robbery; she was present with another individual who possessed a firearm during a robbery. She completed her sentence without incident. Ms. Williams has worked in the healthcare field for approximately twelve years, having earned an associate's degree in phlebotomy and later becoming a certified phlebotomist and a member of the American Society of Clinical Phlebotomists. She became employed in 1988 at Montgomery Hospital in Norristown as a phlebotomist, providing services to various nursing homes. Because she had not been employed at the hospital for twelve months preceding the effective date of Act 13, the hospital discharged her due to the 1974 conviction. She is now forever barred from working in a facility covered by the Act.

RHD provides services for individuals suffering from mental illness, mental retardation or chemical dependency. It recruits many of its employees from the inner city, and between July 1, 1997 and July 30, 1998 RHD hired 362 individuals to work in its facilities, located principally in Pennsylvania. Because of Act 13, RHD was required to discharge twenty-five employees, twenty-three of whom are African-Americans and included Petitioners Curry and Martin. RHD averred that the Act has interfered with its ability to hire and retain the best qualified employees and has adversely impacted upon its ability to provide services to its clients. RHD was forced to terminate a successful support program that it administered for veterans at the Coatesville Veterans Administration Hospital due to the Act's adverse impact on its workforce.

III

Article I, Section 1 of the Pennsylvania Constitution provides: "All 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." As was noted in Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980), the Supreme Court has consistently interpreted Article I, Section 1 as guaranteeing an individual's right to engage in any of the...