Appeal from an Adjudication and Order of the State Board of Pharmacy to the Court of Common Pleas of Dauphin County. Appeal transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.
Robert G. Sable, with him Ralph D. Tive, and Baskin, Boreman, Sachs, Gondelman & Craig, for appellant.
Walter W. Wilt, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for appellee.
Judges Crumlish, Jr., Manderino, and Mencer, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Manderino.
This is an appeal by Dante Moretti from an adjudication and order of the State Board of Pharmacy suspending appellant's registered pharmacist's license and pharmacy permit. Pursuant to a citation issued by the Board, a hearing was held on October 21, 1969, at
which appellant appeared with counsel. An adjudication and order were evidently composed on February 25, 1970, suspending for fifteen days appellant's personal pharmacy license and his pharmacy permit. The chairman of the Board did not sign and date the order until April 10, 1970, so the above suspensions, which were "to become effective ten (10) days after service hereof," evidently did not take effect until at least April 20, 1970. Accordingly, appellant filed this appeal together with exceptions to the adjudication and order on or about April 21, 1970, and a supersedeas was granted him on April 22, 1970.
Among its Findings of Fact, the Board found "That on the 30th day of December, 1968, the Respondent pleaded guilty to two (2) counts of willfully attempting to evade and defeat income tax due the United States, in violation of 26 U.S.C. Section 7201 in the United States District Court for the Western District of Pennsylvania,"*fn1 and on that basis made Conclusions of Law that appellant had violated Sections 5(a)(2) and 5(b)(2) of the Pharmacy Act, the Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. §§ 390-5(a)(2) and 390-5(b)(2).*fn2
Appellant contends, inter alia, that a conviction of willful evasion of payment of income tax is not in itself determinative of conviction of a crime involving moral turpitude.
The scope of our review was well stated by Chief Justice Stern in Blumenschein v. Housing Authority of Pittsburgh, 379 Pa. 566, 572-573, 109 A.2d 331, 334-335 (1954): "By a host of authorities in our own and other jurisdictions it has been established as an elementary principle of law that courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions. That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion." (Emphasis in original)
This appeal can be decided by dividing it into two parts: (1) whether under Section 5(a) appellant's pharmacist's license was validly suspended for 15 days; and (2) whether under Section 5(b) the permit of appellant's pharmacy was validly suspended for 15 days.
(1) The pharmacist's license. Did Dante Moretti, by willfully attempting to evade and defeat income tax due the United States, in violation of 26 U.S.C. § 7201, commit a crime "involving moral turpitude" in contravention ...