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42 Pa. Commw. 543

Rice v. Commonwealth

Commonwealth Court of Pennsylvania

Decided May 10, 1979

Commonwealth Court of Pennsylvania · decided 1979-05-10

Cited by 1 later decisions — most recently July 1981

1 state decisions

Key passage — most relied on by later courts

“Section 23(b) of the Drug Act restricts the pow-' er of the State to impose the strictures of suspension or revocation of licenses to cases where the licensee has pleaded guilty or nolo contendere or has been convicted of a felony under the Drug Act. Section 5 of the Pharmacy Act authorizes the Board of Pharmacy to suspend or revoke the license of one who has been found guilty, pleaded guilty or entered á plea of nolo contendere to any offense in connection with the practice of pharmacy. Insofar as Section 5 of the Pharmacy Act provides, as it does that the Pharmacy Board has power to suspend or revoke for an offense under the Drug Act other than one which the Drug Act says is a felony, it is irreconcilable with Section 23(b) of the Drug Act which provides that only offenses which are felonies under that Act may be punished by suspension or revocation. Which controls? Clearly Section 23(b) of the Drug Act. (Emphasis in original.)”

quoted by 1 later decision, including Moeslein v. Commonwealth, State Board of Pharmacy

Relies on 38 Pa. Commw. 378 - Duda v. State Board of Pharmacy · Intrieri v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1979-05-10

View the full empirical analysis of this case →

¶1Opinion by

Judge Crumlish, Jr.,

¶2The Pennsylvania State Board of Pharmacy (Board) ordered the revocation of the pharmacy licenses of Frank and Charles Rice (Petitioners) and the pharmacy permit to Phillips Drug, Inc. Rice et al. appeal.

¶3We reverse.

¶4Section 5(a)(2) of the Pharmacy Act, Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. §390-5 (a) (2), empowers the Board to suspend or revoke the license of any pharmacist who “has been found guilty, pleaded guilty or entered a plea of nolo contendere to any offense in connection with the practice of pharmacy or involving moral turpitude. ...” It is undisputed that on October 19, 1976, Petitioner Frank Rice pled nolo contendere to charges that he violated Section 13(a) (13) of The Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a) (13), and that on the following day, Petitioner Charles Rice pleaded guilty to similar charges. Section 13(b) of the Drug Act makes such a violation a misdemeanor.

¶5Although Petitioners do not make this argument, Section 23(b) of the Drug Act, 35 P.S. §780-123(b), provides as follows:

*545The appropriate licensing boards in the Department of State are hereby authorized to revoke or suspend the registration or license of any practitioner when such person has pleaded guilty or nolo contendere or has been convicted of a felony under this act. . . . (Emphasis added.)

¶6Section 2 of the Drug Act includes pharmacists and pharmacies within the definition of “practitioner.”

¶7In Duda v. Commonwealth Board of Pharmacy, 38 Pa. Commonwealth Ct. 378, 393 A.2d 57 (1978), we considered the inconsistency between Section 5 (a)(2) of the Pharmacy Act, authorizing suspension or revocation for any offense relating to the practice of pharmacy, and Section 23(b) of the Drug Act, permitting such sanctions only for violations of that act which constitute felonies, and decided that the Drug Act, being last in time, controls. We held that, while the Board may suspend or revoke the license of any pharmacist for offenses other than Drug Act violations, be they felonies or misdemeanors, it may revoke or suspend a Drug Act violator’s license only when his or her actions rise to the level of a felony. Since the Drug Act violation with which Petitioners were charged was a misdemeanor, the Board lacked the authority to revoke their license. Intrieri v. Commonwealth Board of Pharmacy, 40 Pa. Commonwealth Ct. 295, 396 A.2d 927 (1979).

¶8Accordingly, we

¶9Order-

¶10And Now, this 10th day of May, 1979, the order of the Pennsylvania State Board of Pharmacy, dated May 31, 1978, revoking the pharmacy license of Frank and Charles ftice and the pharmacy permit to Phillips Drug, Inc., is hereby reversed.

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