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JOHN FRANKLIN HORVAT v. COMMONWEALTH PENNSYLVANIA (09/15/89)

decided: September 15, 1989.

JOHN FRANKLIN HORVAT, M.D., PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE PROFESSIONAL AND OCCUPATIONAL AFFAIRS, RESPONDENT



PETITION FOR REVIEW (STATE BOARD OF MEDICINE).

COUNSEL

John Rogers Carroll, with him, Peter W. Cooley, Carroll & Carroll, Philadelphia, for petitioner.

John F. Alcorn, with him, Joyce McKeever, Chief Counsel, Bureau of Professional and Occupational Affairs, and Velma A. Boozer, Chief Counsel, Dept. of State, Harrisburg, for respondent.

Colins and Palladino, JJ., and Barbieri, Senior Judge. Colins, J., dissents.

Author: Palladino

[ 128 Pa. Commw. Page 548]

John Franklin Horvat, M.D. (Petitioner), appeals from a Notice of Automatic Suspension, issued by the State Board of Medicine (Board), pursuant to Section 40(b) of the Medical Practice Act of 1985 (MPA).*fn1

It is undisputed that, on two separate occasions, Petitioner forged the name of his partner on a prescription form, listing the name Jean Dura as the intended patient. Petitioner used the forms to personally obtain and use Percocate, a controlled narcotic substance.

Two criminal complaints were issued against Petitioner, charging him with two counts under Section 13(a)(12) of The Controlled Substance, Drug, Device, and Cosmetic Act (Drug Act).*fn2 Petitioner pleaded nolo contendere to both Section 13(a)(12) felony offenses of obtaining a Schedule II

[ 128 Pa. Commw. Page 549]

    controlled substance, which was also a narcotic drug.*fn3 The trial court imposed two consecutive sentences of 12 months probation without verdict, pursuant to Section 17 of the Drug Act.*fn4

Thereafter, pursuant to Section 40(b) of the MPA, the prosecuting attorney for the Bureau of Professional and Occupational Affairs filed a Petition for Automatic Suspension of Petitioner's license to practice medicine with the Board. Three days later, the Board issued a Notice of Automatic Suspension, ordering Petitioner to cease and desist from the practice of medicine and surgery. The Board also ordered him to surrender his documentation of licensure to the Law Enforcement Division, Bureau of Professional and Occupational Affairs. Petitioner filed a Petition for Review of the Board's order with this court, requesting an evidentiary hearing and raising several issues for appellate review. Petitioner also filed, at the same time, an application for a stay of the suspension pending appeal. Petitioner's requests for an evidentiary hearing and stay of the suspension were denied by orders of this court. Thereafter, Petitioner filed a motion for an expedited briefing and argument schedule, which was granted by this court.

The Board's order to Petitioner to cease and desist from the practice of medicine and to surrender his license is before us in our ...


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