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WILLIAM MOESLEIN v. COMMONWEALTH PENNSYLVANIA (07/17/81)

decided: July 17, 1981.

WILLIAM MOESLEIN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF PHARMACY, RESPONDENT



Appeal from the Order of the State Board of Pharmacy in case of In the Matter of the Suspension or Revocation of a License to Practice Pharmacy, issued to William Moeslein, License No. 26988.

COUNSEL

Karl W. Wiedt, III, with him Stuart E. Savage, Savage and Wiedt, for petitioner.

Joseph S. Rengert, Assistant Attorney General, with him James J. Kutz, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.

Judges Craig, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 60 Pa. Commw. Page 575]

William Moeslein (Petitioner) is appealing an order of the State Board of Pharmacy (Board) which revoked Petitioner's pharmacist license.

The facts of this case are not in dispute. Petitioner has been a practicing licensed pharmacist in Pennsylvania since 1971. On February 28, 1979, the Board cited Petitioner for violations of the Pharmacy Act,*fn1 the regulations promulgated thereunder at 49 Pa. Code § 27.18(u) and several sections of The Controlled

[ 60 Pa. Commw. Page 576]

Substance, Drug, Device and Cosmetic Act (Drug Act).*fn2 On May 21, 1979, the Board issued to Petitioner an amended citation and notice of hearing charging that Petitioner procured non-narcotic Schedule II controlled substances, including Quaalude and Percodan, for himself and others by forging several names and addresses on prescription blanks presigned by a Dr. Lumen J. Popp for other purposes. The amended citation charged that Petitioner's actions violated Sections 5(a)(6) and 8(13) of the Pharmacy Act, 63 P.S. § 390-5(a)(6) and § 390-8(13),*fn3 and the Board's rules and regulations at 49 Pa. Code § 27.18(b) and (c).*fn4 It is important to note that Petitioner was charged with no violations of the Drug Act in the amended citation.

[ 60 Pa. Commw. Page 577]

The Board held a hearing on the charges contained in the amended citation and found that Petitioner's conduct did violate the above sections of the Pharmacy Act and the Board's regulations. In the Board's opinion, these violations justified a revocation of Petitioner's license.

Two issues are presented by Petitioner for our consideration: 1) whether or not the Board exceeded its authority in revoking Petitioner's license for charges which rise only to the level of a misdemeanor; and 2) whether or not the Board's action was so inordinately harsh under the circumstances as to constitute abuse of discretion and/or cruel punishment.

First, Petitioner argues that although Section 5(a)(6) of the Pharmacy Act gives the Board power to revoke or suspend licenses for violations of the Pharmacy Act or its regulations, since his conduct is prohibited by the Drug Act as well, the Board's revocation and suspension power under the Pharmacy Act is restricted by the revocation and ...


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