Kabiru v. Bureau of Professional and Occupational Affairs
Commonwealth Court – 11-21-23 – not reported**
Car salesperson appealed a decision of the BPOA, on the facts, and because the adjudication was issued past the 90-day deadline set out in the statute, 63 Pa.C.S. § 3105(d)(4), which provides that the “[Board] shall render a final adjudication or decision on any exceptions to the decision of a hearing examiner or any applications for review within 90 days of the filing of the exceptions or applications[.]”(emphasis added).
The Court held that the “shall” language of the statute was not mandatory but merely directory, because the Board was exercising a “purely judicial function,” following the jurisprudence set out below.
From the opinion:
To be sure, “[i]t has long been part of the jurisprudence of this Commonwealth that the use of ‘shall’ in a statute is not always indicative of a mandatory directive; in some instances, it is to be interpreted as merely directory.” In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d 1058, 1071 (Pa. 2020). Indeed, in 1956, our Superior Court established:
To hold that a provision is directory rather than mandatory, does not mean that it is optional—to be ignored at will. Both mandatory and directory provisions of the legislature are meant to be followed. It is only in the effect of non-compliance that a distinction arises. A provision is mandatory when failure to follow it renders the proceedings to which it relates illegal and void; it is directory when the failure to follow it does not invalidate the proceedings.
Borough of Pleasant Hills v. Carroll, 125 A.2d 466, 469 (Pa. Super. 1956) (emphasis added). Nearly four decades later, this Court similarly held that “‘shall’ has generally been regarded as directory, unless time is of the essence or the statute indicates that the provision is mandatory.” Dep’t of Transp., Bureau of Driver Licensing v. Claypool, 618 A.2d 1231, 1232 (Pa. Cmwlth. 1992) (citing Commonwealth v. Kowell, 228 A.2d 50 (Pa. Super. 1967)).
We have also recognized the General Assembly may not “fix a time in which the exercise of a purely judicial function must occur and, thus, when a statute appears to do so it will be construed as directory.” West Penn Power Co. v. Pa. Pub. Util. Comm’n, 521 A.2d 75, 78 (Pa. Cmwlth. 1987) (emphasis added); see JPay, Inc. v. Dep’t of Corr., 89 A.3d 756, 763 (Pa. Cmwlth. 2014) (“[The Commonwealth Court] is particularly reluctant to find a statutory provision mandatory where it requires that a Commonwealth agency issue an adjudication within a specified time frame[.]”).
The language of Section 3105(d)(4) does not prima facie invalidate the Board’s authority in the event its final adjudication—a “purely judicial function”—exceeds the statute’s 90-day deadline. First, it is well settled that “where a statute fixes a time for an adjudicating body, the language of the statute will be construed as directory because the courts cannot punish any of the litigants for the actions of the adjudicator.” Pub. Serv. Water Co. v. Pa. Pub. Util. Comm’n, 645 A.2d 423, 430 (Pa. Cmwlth. 1994) (citing West Penn, 521 A.2d at 78). We correspondingly determined in Schulze v. Bureau of Professional and Occupational Affairs, 794 A.2d 984, 989 (Pa. Cmwlth. 2002), and Shapiro v. State Board of Accountancy, 856 A.2d 864, 872 (Pa. Cmwlth. 2004), that Section 3(d) of the Act of July 2, 1993, P.L. 345, formerly 63 P.S. § 2203(d), repealed by the Act of July 1, 2020, P.L. 575 (the predecessor to Section 3105(d)(1)), is a directory provision. “When the meaning of a word or phrase is clear when used in one section, it will be construed to mean the same thing in another section of the same statute.” Hous. Auth. of Cnty. of Chester v. Pa. State Civ. Serv. Comm’n, 730 A.2d 935, 946 (Pa. 1999) (citing Commonwealth v. Maloney, 73 A.2d 707, 712 (Pa. 1950)). Section 3105(d)(4) is in pari materia with Section 3105(d)(1); therefore, Section 3105(d)(4) is equally directory. See 1 Pa.C.S. § 1932. For these reasons, the Board’s delay did not prejudice Petitioner; in fact, she actually “benefited from the delay through continuous, unencumbered licensure.”
** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).
