Appeal from the Order of the Secretary of Health in case of Commonwealth of Pennsylvania, Department of Health v. Peter T. DeMarco, M.D., dated March 3, 1978.
F. Emmett Fitzpatrick, with him Nicholas Kozay, Jr., for appellant.
Arthur T. McDermott, with him Jennifer A. Stiller, for appellee.
James McGirr Kelly, for amicus curiae, S.O.S. Association, Inc.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, DiSalle and Craig. Judges Blatt and MacPhail did not participate. Opinion by Judge Rogers.
[ 40 Pa. Commw. Page 250]
Peter T. DeMarco, M.D. has filed a petition for review of an order of a hearing examiner appointed by the Secretary of Health which directed the destruction of Dr. DeMarco's supplies of a drug called Procaine-Polyvinylpyrrolidone (Procaine-PVP), which he had manufactured and which the Department of Health had embargoed, and which further directed Dr. DeMarco to cease administering or selling Procaine-PVP.
On January 19, 1978 the Secretary of Health issued an order pursuant to the claimed authority of Section 27 of The Controlled Substance, Drug, Device and Cosmetic Act (the Act), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-127, as follows:
It Is Therefore Ordered That:
(1) All stocks of Procaine-PVP in the possession of Dr. Peter T. DeMarco, and all raw materials and equipment used in preparing or manufacturing Procaine-PVP are hereby embargoed in accordance with the provisions of Section 27 of the Act (35 P.S. § 780-127); and
(2) Dr. Peter T. DeMarco shall immediately cease and desist from administering Procaine-PVP to any human being; and
(3) Dr. Peter T. DeMarco shall not sell, offer for sale, or give away Procaine-PVP to any person.
A recital to the order declared that the Secretary had probable cause to believe that Dr. DeMarco was engaged in administering a so-called new drug, Procaine-PVP, ...