Appeal from the Order of the State Board of Pharmacy in the case of In the Matter of the Suspension or Revocation of a license to practice pharmacy, License No. RP-0150640L, issued to David A. Rosenthal, and In the Matter of the Suspension or Revocation of the Pharmacy Permit License No. PP-412138-L, issued to David A. Rosenthal, File No. 80-PH-279.
Don P. Foster, Fell, Spalding, Goff & Rubin, for petitioner.
Joseph S. Rengert, Assistant Counsel, with him, David F. Phifer, Chief Counsel, for respondent.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.
[ 73 Pa. Commw. Page 133]
David A. Rosenthal appeals from an order of the Pennsylvania State Board of Pharmacy (board) which revoked his pharmacist's license and suspended his license to conduct a pharmacy on the ground of his dispensing drugs without a prescription, contrary to Sections 5(a)(2), (6) and (b)(2) of the Pharmacy Act,
[ 73 Pa. Commw. Page 134]
Act of September 27, 1961, P.L. 1700, 63 P.S. §§ 390-5(a)(2), (6) and (b)(2)*fn1 and to a regulation promulgated by the board at 49 Pa. Code § 27.18(u).*fn2
The appellant pleaded guilty to four counts of violating Section 13 of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113. The charges to which he entered his guilty pleas were that he dispensed
[ 73 Pa. Commw. Page 135]
without prescription to a police officer working undercover, 400 Fastin, 300 Valium, and 25 Serax pills. The court imposed a sentence of four years non-reporting probation and payment of the costs of prosecution.
On April 21, 1981, the appellant appeared with counsel at a hearing before the board at which the Commonwealth offered into evidence certified copies of the appellant's guilty pleas and a transcript from the Municipal Court where the pleas were made. As we have noted, the board revoked the appellant's license and, in addition, suspended his license to conduct a pharmacy until such time as he proved to the board that a registered pharmacist was in charge of the pharmacy.
Three issues are presented by the appellant for our consideration: 1) whether his counsel was ineffective in his hearing before the board; 2) whether the board permitted an improper commingling of prosecutorial and adjudicatory functions during the hearing; and, 3) ...