Every Petition Must Be Timely Answered

Every licensed professional must respond to every Board proceeding, petition, or order to show cause. An April 4, 2014 case of Joseph Szerencsits, Jr., vs. Board of Professional and Occupational Affairs, Board of Accountancy, 2014 Pa. Commw. Unpub, Lexis 206, discusses this rule. The case is a perfect example why a license must respond to every petition.

In this case, the accountant’s client requested 2007 and 2008 tax returns be prepared. The accountant failed to file tax returns and stole money from the client. Eventually the IRS filed a tax lien against the client with interest and penalties. The State Board of Accountancy was noticed of these legal errors and, in 2011, issued a Rule to Show Cause alleging the petitioner had violated the Certified Public Accountant (“CPA”) law.

The accountant/petitioner did not respond. In 2012, the client/victim of the malpractice died. One year later, in May 2013, the Accountancy Board deemed the matters admitted because the accountant failed to respond. The Board issued a final adjudication and order finding a violation of the CPA law, indefinitely revoking petitioner’s license, assessing a civil penalty, restitution, and cost of investigation.

Petitioner/accountant appealed to the appellate court. He claimed both that because the victim died and the Rule to Show Cause was filed one year after the initial filing of the pleadings the Board was precluded from acting against him and his license. The Commonwealth Court rejected this affirmative defense of laches (claims of delay in the prosecution for which petitioner was prejudiced because of his now inability to present his client/witness) .

The court concluded that because the petitioner/accountant failed to respond to the initial Rule to Show Cause, the matters were deemed admitted. The Board’s adjudication had to be timely responded. Any claim of latches must be raised at the administrative level and failure to do so results in a waiver of that defense. By not responding to the initial Board action, petitioner was now foreclosed from doing so, resulting in the loss of his professional license.

The application of this case to my practice is very clear. Administrative actions commence with an initial investigation, attorney communication, numerous correspondence, and lengthy delays between the actual occurrence of the act resulting in discipline or any formal board proceeding. All of this time must be properly accounted for and explained by the Boards.

Objections to time delays, prejudice to a licensee as a result of those delays, and defenses of laches must be raised as soon as possible. Failing to respond to petitions, ignoring mail, and doing nothing precludes application of these defenses. The time period begins to run within 30 days of the original filing of the petition. Due diligence in the practice of your profession is also commanded in responding to any disciplinary actions.

Retaining an attorney as soon as possible so as time timely stop the administrative proceeding clock is mandatory. If you do not delays of one week after the thirty day time period within which a response may be filed will foreclose any defense to an improper license action.

 

Please call to discuss your case or email me the board petitions that have been filed and for which your are seeking counsel.

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