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DAVID MORRIS v. COMMONWEALTH PENNSYLVANIA (02/09/88)

decided: February 9, 1988.

DAVID MORRIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF PHARMACY, RESPONDENT



Appeal from the Order of the State Board of Pharmacy, in case of State Board of Pharmacy v. David Morris, No. 85-54-1414.

COUNSEL

Francis C. Rapp, Jr., with him, Harold Gondelman, Gondelman, Baxter, McVerry, Smith, Yatch & Trimm, for petitioner.

Thomas B. York, Deputy Attorney General, with him, Andrew S. Gordon, Chief, Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent, Department of State.

Alexandra J. Matthews, Prosecuting Attorney for respondent, State Board of Pharmacy.

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

Author: Barry

[ 113 Pa. Commw. Page 319]

David Morris (petitioner) appeals from a letter written by the State Board of Pharmacy (Board) denying him a hearing following the suspension of his license to practice pharmacy for a minimum period of ten years, pursuant to Sections 5 and 7(d.2) of the Pharmacy Act,*fn1

[ 113 Pa. Commw. Page 320]

    on the basis of his plea of nolo contendere in the Court of Common Pleas of Beaver County to charges of felonies under the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act).*fn2

Petitioner held a license to practice pharmacy in the Commonwealth. On August 22, 1985, four criminal informations were filed against him by the Office of the District Attorney for Beaver County for offenses which were alleged to have occurred between June, 1984 and October 1984. The General Assembly, on December 20, 1985, enacted legislation which added Sections 5(d) and 7(d.2) to the Pharmacy Act. This legislation took effect on January 1, 1986.

The trial on the criminal charges brought against the petitioner was scheduled to commence on December 9, 1985. However, it was continued several times for various reasons, including the unavailability of Commonwealth witnesses and the hospitalization of petitioner's counsel. Finally, on July 30, 1986, petitioner entered a plea of nolo contendere to five counts. Two of the charges to which he pled nolo contendere -- namely, the knowing, intentional and unlawful dispensation, delivery or giving of Dilaudid, a Schedule II controlled substance, and the knowing, intentional and unlawful dispensation, delivery or giving of Tussionex, a Schedule III controlled substance -- were in violation of Section 13(a)(14) of the Drug Act, 35 P.S. § 780-113(a)(14), and

[ 113 Pa. Commw. Page 321]

    constituted felonies under Section 13(f)(1) of said Act. For these crimes, the trial court imposed a five year suspended sentence, as well as five years' probation and a ...


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