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MICHAEL F. DEPANFILIS v. COMMONWEALTH PENNSYLVANIA (12/07/88)

decided: December 7, 1988.

MICHAEL F. DEPANFILIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF PHARMACY, RESPONDENT



Appeal from the Order of the Bureau of Professional and Occupational Affairs, in the case of State Board of Pharmacy v. Michael F. DePanfilis and Cliffe's Prescription Pharmacy, No. 85-54-1226.

COUNSEL

Carl Gainor, for petitioner.

Joyce McKeever, Chief Counsel, Bureau of Professional and Occupational Affairs, with her, Alexandra J. Matthews, State Board of Pharmacy, and Velma A. Boozer, Chief Counsel, Department of State, for respondent.

Judges Colins and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 121 Pa. Commw. Page 527]

Petitioner, Michael Francis DePanfilis, appeals an order of the State Board of Pharmacy (Board) which suspended his license to practice pharmacy for two years and assessed a civil penalty against him in the amount of $750.00. We affirm.

Petitioner has been a licensed pharmacist in the Commonwealth since 1977. He has been the owner of Cliffe's Pharmacy located in Ridgeway, Pennsylvania since 1983. On September 5, 1985, petitioner pleaded guilty to eleven (11) counts of Medicaid fraud pursuant to Section 1407 of the Public Welfare Code (Code).*fn1 Petitioner was billing the Department of Public Welfare for name brand prescription drugs when, in fact, generic drugs were dispensed.

On December 9, 1986, the Board issued an administrative complaint and order which directed petitioner to appear at a hearing on January 6, 1987, to show cause why his pharmacist's license should not be suspended or revoked based upon petitioner's guilty plea to Medicaid fraud charges. Petitioner's answer denied that his conduct constituted an offense in connection with the practice of pharmacy, in violation of Section 5(a)(2) of the Pharmacy Act (Act).*fn2

[ 121 Pa. Commw. Page 528]

At the hearing, the Board's prosecutor introduced a copy of the criminal information filed in the Court of Common Pleas of Elks County (trial court) which contained the original thirty-four counts brought against petitioner in the fraud action. In addition, the Board's prosecutor introduced the order of the trial court which contained the eleven counts to which petitioner pled guilty. Petitioner's counsel objected to the admission of the criminal information and argued that the only relevant document was the actual adjudication containing only those charges to which petitioner pled guilty. The criminal information was admitted into evidence, however, despite petitioner's objections.

The Board issued its order on February 16, 1988 and found that petitioner's guilty pleas to Medicaid fraud constituted offenses in connection with the practice of pharmacy. Consequently, the Board suspended petitioner's pharmacy license for two years, the first year to be an active period of suspension and the second year to be vacated in favor of probation. Following the issuance of the Board's order, the Board considered and denied a petition for reconsideration, as well as an application for supersedeas pending appeal, by orders of March 9, 1988 and April 21, 1988, respectively. Petitioner's request for a stay pending appeal to this court was likewise denied by an order issued on May 13, 1988.

The issues raised by petitioner in his appeal are whether his guilty pleas to eleven counts of Medicaid fraud constitute an offense committed in the practice of pharmacy pursuant to Section 5(a)(2) of the Act and whether the Board abused its discretion by permitting the introduction of the criminal information.

Our scope of review in this action is limited to determining whether the Board abused its discretion, committed an error of ...


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