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PAUL F. GAYNOR v. COMMONWEALTH PENNSYLVANIA (07/29/86)

decided: July 29, 1986.

PAUL F. GAYNOR, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF PHARMACY, RESPONDENT



Appeal from the Order of the Department of State, Bureau of Professional and Occupational Affairs, State Board of Pharmacy, in case of State Board of Pharmacy v. Paul F. Gaynor, No. 82-PH-219.

COUNSEL

David R. Bane, with him, Robert A. Rovner, Rovner, Allen, Seiken & Rovner, for petitioner.

Joyce McKeever, Chief Counsel, Bureau of Professional and Occupational Affairs, with her, Alexandra J. Matthews, Counsel, State Board of Pharmacy, and David F. Phifer, Chief Counsel, Department of State, for respondent.

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

Author: Barry

[ 99 Pa. Commw. Page 320]

This is an appeal by Paul F. Gaynor, petitioner, of an order of the respondent, the State Board of Pharmacy (Board), revoking his license to practice pharmacy under Section 5 of the Pharmacy Act (the Act), Act of September 27, 1961, P.L. 1700, 63 P.S. § 390-5, on the

[ 99 Pa. Commw. Page 321]

    basis of his conviction in federal court for conspiring to distribute and distributing certain controlled substances in violation of 18 U.S.C. § 2, Act of June 25, 1948, ch. 645, § 1, 62 Stat. 684, amended by the Act of October 31, 1951, ch. 655, § 17b, 65 Stat. 717, and 21 U.S.C. § 841(a)(1), Comprehensive Drug Abuse Prevention and Control Act of 1970, Act of October 27, 1970, Pub. L. No. 91-513, 84 Stat. 1285 (1970).*fn1

Petitioner was a duly registered pharmacist in the Commonwealth of Pennsylvania*fn2 employed by Harold's Prescription Pharmacy at 4745 North 11th Street, Philadelphia, Pennsylvania. Harold's was owned and operated by Hratch K. Sarian. On June 24, 1982, petitioner was found guilty of charges that he conspired to and did distribute certain controlled substances. On August 30, 1982, petitioner was sentenced by the U.S. District Court of the Eastern District of Pennsylvania to serve concurrent terms of two years in prison plus a three year period of special parole and five years probation.

[ 99 Pa. Commw. Page 322]

He appealed this conviction. On November 7, 1984, after a full Board hearing the Board issued an order revoking petitioner's license under Section 5 of the Act. In its discussion, the Board explained that in considering the magnitude of petitioner's crime, its harm to the public, his own awareness of the seriousness of his conduct and the nature and character of petitioner's participation in criminal activity, as well as petitioner's character and professional reputation, petitioner committed "an abuse of the highest order, warranting the imposition of a severe sanction". The Board explicitly indicated that it found the evidence insufficient to mitigate the sanction of revocation. Petitioner appeals to this Court arguing that his past violation-free record, and his status as an employee rather than a willing participant in the dispensing of the illegal drugs, should mitigate against the revocation of his license. Petitioner also claims that since he has moved for a new trial the conviction is not final and thus cannot be used to support the Board's conclusion that he violated Section 5(a)(2) of the Act.

After considering petitioner's argument that, since his appeal of the conviction in federal district court is pending, the Board is without authority to revoke his license, we must disagree. In Duda v. State Board of Pharmacy, 38 Pa. Commonwealth Ct. 378, 393 A.2d 57 (1978), Duda, a pharmacist, had pled guilty to charges of violating Section 13(a)(28) of the Drug Act,*fn3 which prohibits:

The furnishing of false or fraudulent material information in, or omission of any material information from any ...


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