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ROSENTHALL v. BOARD PHARMACY (12/20/71)

decided: December 20, 1971.

ROSENTHALL
v.
BOARD OF PHARMACY



Appeal from the Order of the State Board of Pharmacy in case of In the Matter of the Pharmacist's License Issued to Charles Rosenthall and In the Matter of the Suspension of the Pharmacy Permit Issued to Charles Rosenthall, t/a Reiser's Pharmacy.

COUNSEL

Louis Silverhart, for appellant.

Gerald Gornish, Deputy Attorney General, with him J. Shane Creamer, Attorney General, for appellee.

Judges Crumlish, Jr., Manderino and Rogers, sitting as a panel of three. Opinion by Judge Rogers. Judge Manderino dissents.

Author: Rogers

[ 3 Pa. Commw. Page 622]

The appellant, Charles Rosenthall, was tried in the Court of Common Pleas of Allegheny County upon two indictments: the first to 7699 October Session 1970 charging him with selling, dispensing or giving away, without prescription, narcotic drugs; and the second to 7700 October Session 1970 charging him in one count with unlawful possession of narcotic drugs and in a second count of conspiracy unlawfully to sell, buy and deal in narcotic drugs. The jury found appellant guilty of the offense charged in the indictment to 7699, and of the conspiracy charged in the second count of indictment 7700. Upon direction of the trial judge, the jury found the appellant not guilty of the first count of indictment

[ 3 Pa. Commw. Page 6237700]

, unlawful possession. No judgments of sentence have been entered by reason of appellant's having filed post-trial motions which are still pending in the Allegheny County Court. The record does not disclose what post-trial motions were made or their grounds.

The Pennsylvania State Board of Pharmacy issued its citation to appellant to show cause why his pharmacy license and his pharmacy permit for a premises called Reiser's Pharmacy should not be revoked or suspended. The citation was grounded upon subsections (a)(2) and (b)(2) of Section 5 of the Pharmacy Act of 1961, September 27, P.L. 1700, 63 P.S. 390-5(a)(2) and (b)(2). Subsection (a)(2) confers upon the Pennsylvania State Board of Pharmacy the power to suspend or revoke the pharmacy license of one who "(2) . . . has been found guilty, pleaded guilty or entered a plea of nolo contendere to any offense in connection with the practice of pharmacy or involving moral turpitude before any court of record of any jurisdiction"; and Subsection (b)(2) empowers the Board to suspend or revoke the permit of any pharmacy upon proof that the holder "(2) . . . has violated any of the provisions of this act or regulations of the board applicable to him or any provision of the Drug, Device and Cosmetic Act. . . ."

At the hearing conducted by the Board there were admitted into evidence the records of the indictments and verdicts above recited. The Board suspended appellant's license and permit for a period of one year.

Appellant contends first that the Board lacked power to suspend because the phrase "found guilty" as used in Subsection (a)(2) has the same meaning as the word "conviction" and that he has not been convicted because judgments of sentence have not been entered on the verdicts. He further contends that the suspension of his license and permit prior to conviction

[ 3 Pa. Commw. Page 624]

    is a denial of due process. Neither contention has merit. As to the first, it is noted that prior Acts empowered the Board to suspend or revoke upon "conviction of a second violation in connection with the practice of pharmacy."*fn1 It is clear that the Legislature was aware of the legal distinction between a finding of guilty and a conviction and no doubt in recognition of the increased use of dangerous drugs, consciously invested the Board with power to suspend or revoke upon a guilty verdict and before judgment of sentence. That the Legislature has been aware of the distinction which appellant seeks here to obliterate is illustrated by Section 12 of the Medical Practice Act, 1911, June 3, P.L. 639, 63 P.S. 410, which empowers the Medical Education and Licensure Board to refuse to grant a physician's license to persons convicted of certain offenses and to refuse, revoke or suspend the license of persons found guilty of others. Technical legal terms are, in the absence of a countervailing intent, to be taken in their established common law significance; and "found guilty" is a technical legal term. Commonwealth v. Minnich, 250 Pa. 363, 95 A. 565 (1915). Furthermore, the fact that the person whose status is described by the words "found guilty" or "conviction" is before the court requires the application of the technical legal meaning of those words. ...


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