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COMMONWEALTH v. LEVENSON (04/12/73)

decided: April 12, 1973.

COMMONWEALTH
v.
LEVENSON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 801 of 1969, in case of Commonwealth of Pennsylvania v. George Levenson.

COUNSEL

Alan J. Davis, with him William B. Moyer, Power, Bowen & Valimont, and Wolf, Block, Schorr and Solis-Cohen, for appellant.

Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J. Wright, P. J., would affirm on the opinion of Garb, J.

Author: Watkins

[ 225 Pa. Super. Page 320]

This is an appeal by Dr. George Levenson, the defendant-appellant, from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Bucks County after conviction by a jury of violating Sections of The Drug, Device and Cosmetic Act, 35 P.S. § 780-4 (q), (x) and (z); and from denials of post-trial motions for a new trial and in arrest of judgment. The three counts involved include: (1) The dispensing of dangerous drugs not in the regular course of his

[ 225 Pa. Super. Page 321]

    duties as a physician; (2) Maintaining incomplete dispensing records; (3) Failing to affix proper labels to containers of dangerous drugs. He was sentenced to pay a fine of Two Thousand ($2,000) Dollars and undergo imprisonment for one (1) year.

This appeal is from the conviction on the first count, i.e., dispensing dangerous drugs not in the regular course of his duties as a physician. He does not appeal from the conviction on the other counts and readily admits that he failed to keep the proper records and properly label the containers of dangerous drugs.

Dr. Levenson is an Osteopathic physician of good repute who was Chief of Medical Staff and Treasurer of the Delaware Valley Hospital and was a past President of that institution. The primary practice of Dr. Levenson, about 80-85%, was as an anesthesiologist at the hospital. He also conducted a private practice at his home between the hours of 7 and 9 p.m. on four (4) nights a week. It was a general practice, but included a small number of dietary and obesity cases.

The drug dispensed was "Adipex", which was not a narcotic and was not classified as a dangerous drug under federal regulations, but was so classified under Pennsylvania regulations. His testimony shows that "Adipex" is a combination of methamphetamine hydrocholoride and sodium amobarbital. The barbiturate portion of the drug is addicting and the amphetamine portion of the drug is habit forming. The direction given with the drug is that it is a habit-forming drug. The doctor's fee for his services never exceeded Six ($6.00) Dollars per visit, the normal fee, and this included the drugs. He did not count the pills and dispensed as many as 100-125 pills per visit. One witness testified to fifty-five (55) visits in one year receiving a quantity of the drug each time. The doctor admitted that on each occasion he dispensed at least 50-60 pills

[ 225 Pa. Super. Page 322]

    to be taken one a day, but he requested the patient to come back in one week when ...


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