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RAPHAEL S. TANCREDI v. COMMONWEALTH PENNSYLVANIA (10/27/80)

decided: October 27, 1980.

RAPHAEL S. TANCREDI, RICHARD J. TANCREDI AND TANCREDI APOTHECARY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF PHARMACY, RESPONDENT



Appeal from an Order of the State Board of Pharmacy in case of In the Matter of the Suspension or Revocation of Pharmacy Licenses issued to Raphael S. Tancredi -- License No. 23114, and Richard J. Tancredi -- License No. 25477, and Samuel J. Tancredi -- License No. 17051, t/a Tancredi Apothecary, Decision No. 76-PH-1348.

COUNSEL

Richard D. Atkins, for petitioners.

Mary R. Shehadi-Wyatte, Assistant Attorney General, with her Charles L. Ford, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Crumlish and Judges MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr. concurs in result only.

Author: Macphail

[ 54 Pa. Commw. Page 395]

Raphael S. Tancredi, Richard J. Tancredi, t/a Tancredi Apothecary (Petitioners) have filed a timely appeal to this Court from the order of the State Board of Pharmacy (Board), which revoked the Pharmacist licenses of Petitioners Raphael and Richard Tancredi and revoked the Pharmacy permit of Petitioner Tancredi Apothecary pursuant to Section 5 of the Pharmacy Act (Act), Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. § 390-5.

[ 54 Pa. Commw. Page 396]

In June of 1976, following an investigation, the Drug Enforcement Agency (DEA) charged Petitioners with eight violations of the Federal Controlled Substances Act, 21 U.S.C. § 842(a)(5).*fn1 An administrative hearing was held and Petitioners entered into a Memorandum of Understanding with DEA. This document did not specifically admit the truth of the charges lodged by DEA, but Petitioners agreed to rectify conditions found objectionable by DEA and to institute procedures in compliance with federal law. The record shows that Tancredi Apothecary received a reprimand as a result of the proceedings instituted by DEA, that a follow-up investigation by DEA revealed that all violations cited by DEA had been corrected, and that the DEA file on Tancredi Apothecary is closed.

The Board issued a citation to Petitioners based on the DEA allegations and a hearing was held on July 19, 1977. At the beginning of the hearing, counsel for the Commonwealth moved to amend the citation

[ 54 Pa. Commw. Page 397]

    to include new allegations resulting from an investigation conducted by the Commonwealth prior to the hearing.*fn2 Petitioners were advised that a continuance would be granted in light of the new allegations, but they chose to proceed with the hearing as scheduled.

The record shows that Petitioners admitted to all but one of the allegations of the citation and admitted to the additional allegations. Petitioners offered testimony only to explain the violations and mitigate the possible consequences thereof. Following the hearing, the Board revoked the licenses of Petitioners Raphael and Richard Tancredi and the permit of Tancredi Apothecary.

Petitioners raise four issues for our review: (1) whether the Board's conclusions of law are supported by the findings of fact; (2) whether the Board's findings concerning the drug Ritalin are based on substantial evidence; (3) whether Pharmacy Regulation 27.18(u), 49 Pa. Code § 27.18(u), is invalid because it

[ 54 Pa. Commw. Page 398]

    is based on federal regulations and is, therefore, an unlawful delegation of the Board's rules making power; and (4) whether the Board's order is an unduly harsh and ...


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