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PENNSYLVANIA STATE BOARD PHARMACY v. COHEN (06/28/72)

decided: June 28, 1972.

PENNSYLVANIA STATE BOARD OF PHARMACY
v.
COHEN, APPELLANT



Appeal from order of Commonwealth Court, No. 253 C.D. 1971, affirming the order of State Board of Pharmacy, in re Pennsylvania State Board of Pharmacy v. Leonard S. Cohen, t/a Senate Drug Store.

COUNSEL

J. Thomas Menaker, with him McNees, Wallace & Nurick, for appellant.

Gerald Gornish, Deputy Attorney General, with him J. Shane Creamer, Attorney General, for Pennsylvania State Board of Pharmacy, appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones took no part in the consideration or decision of this case.

Author: Roberts

[ 448 Pa. Page 191]

Appellant Leonard Cohen seeks reversal of an adjudication and order by the State Board of Pharmacy*fn1 suspending his pharmacist's license for one year and revoking indefinitely his pharmacist's permit.*fn2 On November 25, 1970, the Board issued a citation and notice of hearing, charging that appellant had "openly sold vast quantities of drug containers and supplies to dilute drugs to drug traffickers. . . ." After hearing, the Board concluded that appellant had violated Sections 390-5(a)(9) and 390-5(b)(2) of the Pharmacy Act*fn3 and entered the above described order. On appeal to the Commonwealth Court, the Board's order was affirmed. Cohen v. Board of Pharmacy, 4 Pa. Commonwealth Ct. 398, 285 A.2d 912 (1972). We granted allocatur and now reverse because appellant's conduct did not violate any of the thirteen prohibitions constituting "grossly unprofessional conduct" in Section 390-5(a)(9), any other provision of the Pharmacy Act, or any

[ 448 Pa. Page 192]

    rule or regulation promulgated thereunder,*fn4 or for that matter any other law of the Commonwealth.

At the hearing before the Board, evidence was introduced which was not disputed that appellant, during 1969 and 1970, purchased from a drug wholesale house and sold to various customers large quantities of gelatin capsules, lactose, and quinine hydrocholoride. These purchases and sales did not violate any provision of the Pharmacy Act, any rule or regulation promulgated thereunder or any other law of Pennsylvania. Appellant conceded that he made these purchases and sales and that out of state customers were not purchasing these items for "honest usage" but contended that the sales were made in cooperation with the Harrisburg Police Department in order to aid apprehension of "drug traffickers" from Maryland. A detective of the Harrisburg Police Department refuted appellant's contention and the Board chose to believe the detective's testimony.

The Board concluded as a matter of law that appellant was guilty of "grossly unprofessional conduct" in violation of Section 390-5(a)(9), which provides:

"(a) The board shall have the power to revoke or suspend the license of any pharmacist upon proof satisfactory to it that: . . .

"(9) He is guilty of grossly unprofessional conduct. The following acts on the part of a pharmacist are hereby declared to constitute grossly unprofessional conduct of a pharmacist:

"(i) Willfully deceiving or attempting to deceive the State Board of Pharmacy or its agents with respect to any material matter under investigation by the board;

"(ii) The advertising to the public of prices for prescriptions, dangerous or non-proprietary drugs, or any reference to the price of said drugs or prescriptions

[ 448 Pa. Page 193]

    either specifically or as a percentile of prevailing prices;*fn5

"(iii) The public assertion or implication of professional superiority in the ...


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