Appeal from the Order of the Pennsylvania State Board of Pharmacy in case of State Board of Pharmacy v. Harriet A. Carr, No. 77-PH-2544.
William T. Steerman, for petitioner.
Robert M. Sitoski, with him Charles L. Ford, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 48 Pa. Commw. Page 331]
Harriet A. Carr (petitioner) appeals here from an order of the Pennsylvania State Board of Pharmacy (Board) which revoked her pharmacist's license because of her distribution of drugs without a prescription, contrary to Section 5 of the Pharmacy Act,*fn1 63 P.S. § 390-5, and to the regulations promulgated by the Board.*fn2 It is undisputed that the petitioner, a then licensed pharmacist, delivered two grams of cocaine and 20 capsules of dexedrine without a prescription to an undercover agent of the Commonwealth. She was arrested and, prior to trial, she was placed on an accelerated rehabilitation program involving a one-year probation period. The Board, however, after
[ 48 Pa. Commw. Page 332]
conducting a hearing, entered an order revoking her license.*fn3
In this appeal, the petitioner attacks the Board's action on four bases: (1) that the presence at the hearing of her former employer, Donald Bell, who was also vice-chairman of the Board, violated her due process rights; (2) that the Board failed to consider all of the relevant evidence; (3) that the Board's action was inappropriately harsh; and (4) that the classification of cocaine as a controlled substance is arbitrary and irrational.
As for the first issue, the parties seem to agree that Board member Bell, who was the prior employer of the petitioner, was biased against her, but the Board's position is that he did not participate in this ruling against her. Due process, of course, prohibits a person in a judicial capacity from hearing a case in which his interest in the case presents any possible temptation to him not to hold a totally impartial balance between the parties. In re Murchison, 349 U.S. 133 (1955); State Dental Council and Examining Board v. Pollack, 457 Pa. 264, 318 A.2d 910 (1974). Furthermore, it is a well settled rule that a party need not show actual bias or prejudice on the part of the adjudicatory body to prove a denial of due process. Rather, as our Supreme Court has stated: "'. . . [A]ny tribunal permitted by law to try cases and controversies must not only be unbiased but must avoid even the appearance of bias.'" Gardner v. Repasky, 434 Pa. 126, 129, 252 A.2d 704, 706 (1969). We must
[ 48 Pa. Commw. Page 333]
determine, therefore, the extent of Mr. Bell's contribution to the proceedings, if any, and whether or not it presented an appearance of possible prejudice.
The petitioner contends that, because the Board's order states that its action was based "upon the unanimous vote of its members," the order itself reveals that Mr. Bell either participated in the case, or at least that he failed to disqualify himself as he should have done. The Board responds that Mr. Bell did expressly disqualify himself on the record, and that the order's reference to the "unanimous vote" should be read to ...