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SCHUMAN'S VILLAGE SQUARE DRUGS v. COMMONWEALTH PENNSYLVANIA (06/04/74)

decided: June 4, 1974.

SCHUMAN'S VILLAGE SQUARE DRUGS, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF PHARMACY, APPELLEE



Appeal from the Order of the State Board of Pharmacy in case of In the Matter of the Application For Pharmacy Permit of Schuman's Village Square Drugs, Inc., Order of June 8, 1973.

COUNSEL

George M. Painter, III, for appellant.

Gerald Gornish, Deputy Attorney General, with him Walter Roy Mays, III, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Blatt.

Author: Blatt

[ 13 Pa. Commw. Page 458]

This is an appeal from the adjudication and order of the State Board of Pharmacy (Board) regarding the application of Schuman's Village Square Drugs, Inc. (appellant) for a pharmacy permit.*fn1 The Board concluded that the appellant had violated several sections of the Pharmacy Act, Act of September 27, 1961, P.L. 1700, 63 P.S. §§ 390-1 et seq. and, based on the Board's findings of fact and conclusions of law considered separately and independently of each other, the appellant was denied the permit requested.

Our scope of review is limited to a determination of whether or not the Board's adjudication is in violation of the constitutional rights of the appellant, is in accordance with law or includes any finding of fact not supported by substantial evidence. Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P.S. § 1710.44.

[ 13 Pa. Commw. Page 459]

We believe that the adjudication and order of the Board were proper.

The findings of fact made by the Board were clearly supported by substantial evidence, that is, by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. A. P. Weaver & Sons v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 499, 284 A.2d 515 (1971). The testimony reveals that, before any pharmacy permit had been issued to the appellant, prescriptions were dispensed in the Perkasie store, where it had asked permission to operate. The appellant argues that the evidence did not conclusively establish that the prescriptions were filled (in the sense of being "prepared") at the Perkasie store, but contends rather that this store merely served as a distribution center for prescriptions filled at other licensed drug stores and that, therefore, no illegal act was committed which would justify the denial of the permit. This argument was factually rebutted, however, by the testimony of a customer and also by the testimony of an investigator for the Federal Bureau of Narcotics. Moreover, even if the factual assertions of the appellant had been supported, we would still hold that the distribution of drugs is a function of a duly licensed pharmacist and pharmacy properly regulated by the Board under its police powers. In fact, the definition of the "practice of pharmacy" in Section 2(11) of the Pharmacy Act, 63 P.S. § 390-2(11), specifically includes the functions of dispensing, as well as of selling, storing and distributing drugs.*fn2

[ 13 Pa. Commw. Page 460]

The conclusions of law in this case are likewise supported by the findings of fact. The Board concluded that the appellant violated Section 4(h) of the Pharmacy Act, 63 P.S. § 390-4(h), which provides: "No person shall operate or advertise a pharmacy until the person has been granted a pharmacy permit by the Board."*fn3 The record shows that two customers testified that they had prescriptions filled at the Perkasie store. Also, a Federal investigator stated that when he visited the store it was open for business and he observed drugs, some of which were controlled substances, on the shelves and prescription counter. The store was evidently operating as a pharmacy in conducting those functions which are exclusively reserved for pharmacies.

The Board also concluded that the appellant violated Section 8(5) of the Pharmacy Act, 63 P.S. § 390-8(5), which provides that it shall be unlawful for: "Any person to knowingly prevent or refuse to permit any member of the board, or its duly authorized agents, to enter a pharmacy or any other place where drugs or devices are kept, stored, dispensed or distributed to the ultimate consumer, for the purpose of lawful inspection or other purposes in ...


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