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HAROLD GALENA v. COMMONWEALTH PENNSYLVANIA (12/23/88)

decided: December 23, 1988.

HAROLD GALENA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, RESPONDENT



Appeal from the Order of the Department of State, Bureau of Professional and Occupational Affairs in the case of: In the Matter of the Automatic Suspension of the License to Practice Medicine and Surgery of Harold J. Galena, M.D., License No. MD-021398-E, No. 87-49-00599.

COUNSEL

Gerald Jay Pomerantz, for petitioner.

John F. Alcorn, with him, Roger H. Caffier, State Board of Medicine, Joyce McKeever, Chief Counsel, Bureau of Professional and Occupational Affairs and Velma A. Boozer, Chief Counsel, Department of State, for respondent.

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

Author: Colins

[ 122 Pa. Commw. Page 316]

Harold Galena (petitioner) appeals from an order of the State Board of Medicine (Board), which mandated an automatic suspension of his license to practice medicine pursuant to the Medical Practice Act of 1985 (1985 Act), Act of December 20, 1985, P.L. 457, as amended, 63 P.S. §§ 422.1-422.45.*fn1 Petitioner requests that this Court vacate the suspension and direct that the Board conduct an evidentiary hearing.

Petitioner held a license, issued August 25, 1978, to practice medicine and surgery in the Commonwealth. On April 15, 1986, a criminal indictment was filed in the United States District Court for the Eastern District of Pennsylvania charging petitioner with 68 counts of knowingly and intentionally distributing or dispensing

[ 122 Pa. Commw. Page 317]

    controlled substances outside and other than in the usual course of professional practice, and not for a legitimate medical purpose in violation of Section 841(a)(1) of the Federal Controlled Substances Act. 21 U.S.C. § 841(a)(1). The offenses charged in the indictment were committed from July 22, 1982, through June 18, 1985. Petitioner was found guilty, after a trial by jury, on October 29, 1986, of all 68 counts and was sentenced to ten years imprisonment, a special parole of twenty years, and assessed fines in the amount of $340,000 plus a special assessment of $3,400.

The 1985 Act repealed the Medical Practice Act of 1974, Act of July 20, 1974, P.L. 551, as amended, 63 P.S. § 421.1-412.18 (1974 Act), which did not provide for automatic license suspension in similar circumstances. The 1985 Act became effective on January 1, 1986. As a result, the prosecuting attorney for the Board filed a petition for automatic suspension of petitioner's license. On January 25, 1988, the Board issued notice of automatic suspension and ordered petitioner to return his licensure documents to the Law Enforcement Division, Bureau of Professional and Occupational Affairs. Petitioner then filed a Petition for Review which is now before this Court.*fn2

Petitioner maintains that his activity was intended as a novel though legitimate medical practice, albeit not "mainstream." He believes that given the opportunity to present evidence at a hearing before his peers, he would receive either a lessened penalty, or none at all.

[ 122 Pa. Commw. Page 318]

Petitioner asserts that he is entitled to a hearing since that was the standard at the time the felonies which formed the basis for his conviction were committed and relies on Lewin v. State Board of Medicine, 112 Pa. Commonwealth Ct. 109, 535 A.2d 243 (1987), in support of his position. We refuse to review the complicated issues in Lewin, as Lewin did not deal ...


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