Com. v. Tarabilda

• Decision Date: 15 September 1972
• Citation: 294 A.2d 830,222 Pa.Super. 237
• Parties: COMMONWEALTH of Pennsylvania v. William TARABILDA, Appellant.
• Court: Pennsylvania Superior Court

Page 830

294 A.2d 830

222 Pa.Super. 237

COMMONWEALTH of Pennsylvania v. William TARABILDA, Appellant.

Superior Court of Pennsylvania.

Sept. 15, 1972.

Edmund E. DePaul, Philadelphia, (Submitted), for appellant.

Milton M. Stein, Chief, Appeals Div. (Submitted), Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and PACKEL, JJ.

HOFFMAN, Judge:

This is an appeal from appellant's conviction for transferring a narcotic drug, a violation of the Drug, Device and Cosmetic Act, 35 P.S. § 780--1 et seq. Appellant contends that 1) the Drug, Device and Cosmetic Act is an unconstitutional delegation of the legislative power of the General Assembly of the Commonwealth of Pennsylvania, 2) the Drug, Device and Cosmetic Act is unconstitutionally vague, and 3) the evidentiary chain of custody of the methadone allegedly transferred by appellant was not proven.

I

Appellant first argues that the Drug, Device and Cosmetic Act contains an unconstitutional delegation of legislative power. This contention cannot be sustained. The law with respect to unconstitutional delegation has been stated in Lockes Appeal, 72 Pa. 491 (1873): 'The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law making power, and must, therefore, be a subject of inquiry and delegation outside the halls of legislation.'

Where the legislature has delegated fact-finding power to administrative officers, boards, and commissions, that power will be valid only if limited by sufficiently ascertainable and definite standards, policies, and limitations to which such officers, boards, and commissions must strictly adhere. If the legislature fails to prescribe with reasonable clarity the limits of the power delegated, or if those limits are too broad, its attempt to delegate will be a nullity. Holgate Bros. Co. v. Bashore,331 Pa. 255, 200 A. 672 (1938).

At the time of appellant's arrest and conviction, the term 'narcotic drug' was defined in the Drug, Device and Cosmetic Act to be, among other things, '(5) any drug or other substance found by the United States Secretary of the Treasury or his delegate, and proclaimed by him or his delegate after due notice and opportunity for public hearing, to have an addiction-forming or addiction-sustaining liability similar to morphine or cocaine.' ¹ 35 P.S. § 780--2(g).

The prosecution of appellant for the transfer of methadone was predicated upon this section of the Drug, Device and Cosmetic Act. The question, then, is whether 1) the classification of a substance as a narcotic drug is a fact-finding procedure, and 2) the standards set forth in the Act are sufficiently clear and definite. It is apparent and undisputed that the classification of narcotic drugs is a fact-finding procedure, but appellant urges us to find that the standards set forth in the Act are constitutionally insufficient.

The Pennsylvania Legislature, to limit the discretion of the Secretary of the Treasury, established the following standard for the classification of certain substances as narcotic drugs: 'The term 'narcotic drug' means . . . any . . . substances . . . found . . . to have an addiction-forming or addiction-sustaining liability similar to morphine or cocaine.' This standard is sufficiently clear and definite to permit the determination by the Secretary of the Treasury of those substances intended by the legislature to be classified as narcotic drugs. The Secretary's discretion is limited to substances possessing a certain property ('addiction-forming or addiction-sustaining') to a certain degree ('similar to morphine or cocaine'). Furthermore, the Secretary is subject to procedural restrictions, having the power to classify substances as narcotic drugs only after 'due notice and opportunity for public hearing.' The discretion of the Secretary of the Treasury is additionally limited by the reservation of a power of exemption in the Secretary of Health of the Commonwealth of Pennsylvania. 35 P.S. § 780--2, 780--3; ² See Nester Appeal, 187 Pa.Super. 313, 144 A.2d 623 (1958); Commonwealth v. Harrison, 183 Pa.Super. 133, 130 A.2d 198 (1957); and Commonwealth v. Paschall, 46 Pa.Dist. & Co.R. 243 (1943); Cf. Holgate Bros. Co. v. Bashore, supra, 331 Pa. at 263--264, 200 A. 672.

For the above reasons we hold that the standards set forth in the Drug, Device and Cosmetic Act of 1961 are constitutionally sufficient, and that the delegation of authority by the legislature to the Secretary of the Treasury is valid.

II

Appellant's second contention is that the Drug, Device and Cosmetic Act of 1961 is unconstitutionally vague in that the Act relies on the decisions of a federal officer to define its scope and application. A criminal statute will be void for vagueness where it 'either forbids or requires the doing of an act in terms so vague that men of common intelligence...