decided: October 27, 1980.
RAPHAEL S. TANCREDI, RICHARD J. TANCREDI AND TANCREDI APOTHECARY, PETITIONERS
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.
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.
[ 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 excessive penalty under the circumstances of this case.
I. Whether the Board's conclusions of law are based on the findings of fact.
A. Violations of Section 5(a)(6), Section 5(b)(2), and Regulation 27.18(u)
Petitioners assert that the Board's conclusion that they have violated Sections 5(a)(6)*fn3 and 5(b)(2)*fn4 of the Act, 63 P.S. §§ 390-5(a)(6) and 390-5(b)(2) and Regulation 27.18(u),*fn5 49 Pa. Code § 27.18(u) is only
[ 54 Pa. Commw. Page 399]
a general assertion of violations of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-101 et seq. and the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq., and does not provide Petitioners with notice of what particular substantive provisions their conduct violated. Petitioners argue that, because of the Board's failure to determine, at the hearing, such matters as frequency of violations and whether the violations were gross or de minimus, the revocation order is arbitrary and capricious. Based on their alleged ignorance of what provisions of the law they have violated and the Board's failure to ascertain all details surrounding each allegation, Petitioners argue that the Board's conclusion that they have violated provisions of the Act is not supported by the findings of fact.
At the outset of the Board hearing, the Commonwealth's attorney stated that ". . . respondents agree to all allegations (in the citation) except No. 9. . ." The attorney then requested leave to amend the citation to add other charges and stated, "Counsel is willing to stipulate to all of these new violations. . . ." At that point, Petitioners' counsel stated that it was his client's wish to have everything heard at once and "the opportunity to explain all of the allegations, to the best of our ability in mitigation thereof and to explain the full extent thereof." (Emphasis added.)
Petitioners now contend they are not bound by the stipulations because they never expressly agreed to them at the hearing. However, at the hearing Petitioners did not allege that the citation lacked sufficient
[ 54 Pa. Commw. Page 400]
detail to inform them of what substantive provisions of law they had violated and did not seek clarification of the citation on this or any other basis. Further, Petitioners did not offer evidence that their admitted conduct was not, in fact, violative of the Act. Petitioners presented testimony to explain their conduct, but did not offer any evidence that any violations were few or de minimus. It is clear that Petitioners have waived these issues. Administrative Agency Law, 2 Pa. C.S. § 703(a).
Petitioners' tactic before the Board was an obvious attempt to secure leniency in exchange for contrition and a promise of future good behavior. Now that that ploy has failed, Petitioners cannot escape the consequences of their voluntary admission and their conscious decision to offer no defense to the Board.
B. Violations of Section 5(a)(9)
The Board concluded that Petitioners had violated Section 5(a)(9)*fn6 of the Act, 63 P.S. § 390-5(a)(9),
[ 54 Pa. Commw. Page 401]
based on allegations 1 through 8 and the additional allegations added at the hearing.
[ 54 Pa. Commw. Page 402]
Petitioners argue that the conduct alleged to have violated Section 5(a)(9) is not enumerated in the subsection and, therefore, is not grossly unprofessional conduct, citing Pennsylvania State Board of Page 402} Pharmacy v. Cohen, 448 Pa. 189, 292 A.2d 277 (1972). We agree and hold, therefore, that the Board's conclusion that Petitioners violated Section 5(a)(9) is in error.
II. Whether the Board's finding concerning Ritalin is based on substantial evidence.
The Board found that, from June 26, 1975 through June 6, 1976, Petitioners filled 110,000 prescriptions for the controlled substance Ritalin. The Board found further that the number of prescriptions for Ritalin dropped to 1200 for the period from October 1, 1976 to April 22, 1977.
Actually, the record clearly shows that Petitioners had purchased 110,000 tablets of Ritalin in the period from June 26, 1975 through June 6, 1976. This means that they could have filled only about 2,619 prescriptions of 42 tablets each during that period. By the same token, the number of prescriptions for Ritalin between October 1, 1976 and April 22, 1977 would have been 29.
The Commonwealth's brief concedes that the Board misstated the amount of Ritalin dispensed by Petitioners. The Board repeated this error in the "discussion" portion of its adjudication. While we cannot agree with Petitioners that the Board's error in this respect mandates a reversal, we are of the opinion that such a gross misstatement is cause for remand. Although the error is an obvious one, we cannot say with certainty that the Board's conclusions
[ 54 Pa. Commw. Page 403]
and order would be the same if its findings had set forth the correct information.
III. Pharmacy Regulation 27.18(u)
Petitioners argue that Regulation 27.18(u) is invalid insofar as it attempts to incorporate federal regulations because such in toto adoption of federal regulations is an invalid delegation of the Board's rules making power. Further, Petitioners allege that Regulation 27.18(u) was adopted in violation of procedural requirements as to notice and publication.
Petitioners did not question the validity of Regulation 27.18(u) before the Board. While it is true that the validity of the Act could be questioned on appeal, even though not challenged below, Administrative Agency Law, 2 Pa. C.S. § 703(a), we do not deem that this exception to the waiver rule applies to a challenge to regulations promulgated pursuant to the Act. We therefore hold that Petitioners have waived this issue. Id.
Our holding on this point is supported not only by the clear language of Section 703, but by practical considerations. This Court cannot make a determination of whether Regulation 27.18(u) was adopted according to proper procedures absent some factual findings. Petitioners clearly could have presented evidence to the Board on this point and created the needed record.
Further the essential issue involved in delegation of power is whether the legislature or agency has abrogated its duty to set standards to guide it in determinations of whether violations of statutes or regulations have occurred. See, Petty Liquor License Case, 216 Pa. Superior Ct. 55, 258 A.2d 874 (1969) (Judge Cercone in dissent). Petitioners have not presented any argument or authority that addresses this issue. It would be useful, if not essential, to this
[ 54 Pa. Commw. Page 404]
Court's review for the Board to have the opportunity to deal with the challenge to Regulation 27.18(u).
Finally, Petitioners have not challenged Section 5(b)(2) of the Act, 63 P.S. § 390-5(b)(2), although the Board based its revocation of the permit of Tancredi Apothecary thereon and this subsection is almost identical to Regulation 27.18(u). We fail to see how Petitioners can accept the validity of 5(b)(2), where the legislature sets Federal law as a standard, but reject Regulation 27.18(u), where the Board sets Federal law as the standard.
IV. Revocation Order
Petitioners argue that the Board's order revoking the Pharmacy licenses and permit is an excessive penalty and constitutes an abuse of the Board's discretion. We need not address this contention since we are remanding this case to the Board.
We note that the Board has the power to revoke the license of any pharmacist who has violated any provision of the Act or regulation of the Board. Section 5(a)(6) of the Act, 63 P.S. § 390-5(a)(6). Further, the Board has the power to revoke the permit of any pharmacy where the holder has violated any of the provisions of the Act or regulation of the Board or any provisions of the state or federal drug laws or regulations thereunder. Section 5(b)(2) of the Act, 63 P.S. § 390-5(b)(2).
Clearly, in the instant case, the Board could have revoked Petitioners' licenses and permit even absent any violation of Section 5(a)(9), 63 P.S. § 390.5(a)(9). However, since it appears that the order of revocation is based partly on behavior that was characterized as grossly unprofessional conduct, but was not, in fact, grossly unprofessional, we deem it necessary to remand to the Board for a review of its revocation order in light of our deletion of Section 5(a)(9)
[ 54 Pa. Commw. Page 405]
from this case. See, Intrieri v. Department of State, Commissioners of Professional and Occupational Affairs and State Board of Pharmacy, 40 Pa. Commonwealth Ct. 295, 396 A.2d 927 (1979).
Furthermore, the Board may also find it necessary to review its revocation order when it corrects its findings with respect to the amounts of Ritalin purchased and dispensed by Petitioners.
Accordingly, the attached order will be entered.
And Now, this 27th day of October, 1980, the order of the State Board of Pharmacy, dated March 28, 1979, revoking the Pharmacist License of Raphael A. Tancredi, the Pharmacist License of Richard J. Tancredi and the Pharmacy Permit of Tancredi Apothecary is hereby remanded for further proceedings consistent with this opinion.
Judge Williams, Jr. concurs in result only.