Pennsylvania State Bd. of Pharmacy v. Cohen

• Decision Date: 28 June 1972
• Parties: PENNSYLVANIA STATE BOARD OF PHARMACY v. Leonard S. CHOEN, t/a Senate Drug Store, Appellant.
• Court: Pennsylvania Supreme Court

Page 277

292 A.2d 277

448 Pa. 189

PENNSYLVANIA STATE BOARD OF PHARMACY v. Leonard S. CHOEN, t/a Senate Drug Store, Appellant.

Supreme Court of Pennsylvania.

June 28, 1972.

J. Thomas Menaker, David B. Disney, McNees, Wallace & Nurick, Harrisburg, for appellant.

J. Shane Creamer, Atty. Gen., Gerald Gornish, Deputy Atty. Gen., Dept. of Justice, Harrisburg, for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant Leonard Cohen seeks reversal of an adjudication and order by the State Board of Pharmacy ¹ suspending his pharmacist's license for one year and revoking indefinitely his pharmacist's permit. ² On November 25, 1970, the Board issued a citation and notice of hearing, charging that appellant had 'openly sold vast quantities of drug containers and supplies to dilute drugs to drug traffickers. . . .' After hearing, the Board concluded that appellant had violated sections 390--5(a)(9) and 390--5(b)(2) of the Pharmacy Act ³ and entered the above described order. On appeal to the Commonwealth Court, the Board's order was affirmed. Cohen v. Board of Pharmacy, 4 Pa.Commonwealth Ct. 398, 285 A.2d 912 (1972). We granted allocatur and now reverse because appellant's conduct did not violate any of the thirteen prohibitions constituting 'grossly unprofessional conduct' in section 390--5(a)(9), any other provision of the Pharmacy Act, or any rule or regulations promulgated thereunder, ⁴ or for that matter any other law of the Commonwealth.

At the hearing before the Board, evidence was introduced which was not disputed that appellant, during 1969 and 1970, purchased from a drug wholesale house and sold to various customers large quantities of gelatin capsules, lactose, and quinine hydrochloride. These purchases and sales did not violate any provision of the Pharmacy Act, any rule or regulation promulgated thereunder or any other law of Pennsylvania. Appellant conceded that he made these purchases and sales and that out of state customers were not purchasing these items for 'honest usage' but contended that the sales were made in cooperation with the Harrisburg Police Department in order to aid apprehension of 'drug traffickers' from Maryland. A detective of the Harrisburg Police Department refuted appellant's contention and the Board chose to believe the detective's testimony.

The board concluded as a matter of law that appellant was guilty of 'grossly unprofessional conduct' in violation of section 390--5(a)(9), which provides:

'(a) The board shall have the power to revoke or suspend the license of any pharmacist upon proof satisfactory to it that: . . .

(9) He is guilty of grossly unprofessional conduct. The following acts on the part of a pharmacist are hereby declared to constitute grossly unprofessional conduct of a pharmacist:

(i) Willfully deceiving or attempting to deceive the State Board of Pharmacy or its agents with respect to any material matter under investigation by the board;

(ii) The advertising to the public of prices for prescriptions, dangerous or non-proprietary drugs, or any reference to the price of said drugs or prescriptions either specifically or as a percentile of prevailing prices; ⁵(iii) The public assertion or implication of professional superiority in the compounding of prescriptions;

(iv) The engaging by any means in untrue, false, misleading or deceptive advertising of drugs or devices;

(v) Paying rebates to physicians or any other persons, or the entering into any agreement with a medical practitioner or any other person for the payment or acceptance of compensation in any form for the recommending of the professional services of either party;

(vi) The entering into of any agreement with a licensed medical practitioner for the compounding or dispending of secret formula (coded) prescriptions;

(vii) The misbranding or adulteration of any drug of device and the sale, distribution or dispensing of any misbranded or adulterated drug or device as defined in the Drug, Device and Cosmetic Act.

(viii) Engaging in the sale of (sic) purchase of drugs or devices whose package bears the inscription 'sample' or 'not for resale'.

(ix) Displaying or permitting the display of his license in a pharmacy of which he is not the proprietor or in which he is not employed;

(x) Any holder of a license or certificate to fail to display same while actually engaged in the practice of pharmacy;

(xi) The acceptance back and redistribution of any unused drug, or a part thereof, after it has left the premises of any pharmacy, whether issued by mistake or otherwise.

(xii) To accept employment as a pharmacist, or share or receive compensation in any form arising out of, or incidental to, his professional activities from any medical practitioner or any other person or corporation in which one or more medical practitioners have a proprietary or beneficial interest sufficient to permit them to exercise supervision or control over the pharmacist in his professional responsibilities and duties;

(xiii) To accept employment as a pharmacist, or share or receive compensation in any form arising out of, or incidental to, his professional activities from any person who orders said pharmacist, directly or indirectly, to engage in any aspect of the practice of pharmacy in contravention of any provision of this act.'

Act of September 27, 1961, P.L.1700, § 5(a)(9), 63 P.S. § 390--5(a)(9) (footnote omitted). ⁶ Both parties agree that appellant's conduct did not violate any of the thirteen specific prohibitions constituting 'grossly unprofessional conduct' found in section 390--5(a)(9) or any of the other provisions in the Pharmacy Act or any rules or regulations promulgated thereunder or for that matter any other laws of Pennsylvania. ⁷ The Board nevertheless contends that appellant's conduct was clearly 'grossly unprofessional' and that the thirteen specific prohibitions in subsection (9) are not intended to be an exclusive definition but only an exemplary description designed to provide guidance to the Board in determining from case to case the scope of 'grossly unprofessional conduct.' Appellant argues that 'grossly unprofessional conduct' is intended by the Legislature to constitute only the thirteen specific types of conduct enumerated in subsection (9). Appellant urges therefore that a finding that he did not violate any of these provisions or any other provision in the Pharmacy Act including rules adopted thereunder or any other law of Pennsylvania compels the conclusion that the Board exceeded its statutory authority in suspending appellant's license for one year and revoking indefinitely his permit. We agree with appellant's construction of section 390--5(a)(9) and reverse the order of the Commonwealth Court affirming the adjudication of the Board.

I

Section 390--5 of the Pharmacy Act provides nine separate grounds for suspension or revocation of a license, one of which lists thirteen prohibited forms of conduct and five different grounds for suspension or revocation of a permit. ⁸ This statutory scheme expresses the legislative intention to provide clear advance notice of the enumerated grounds for imposition of sanctions by the Board. Consistent with this scheme of detailed and specific notice, the Legislature provided in subsection (9):

'The following acts on the part of a pharmacist are hereby declared to constitute grossly unprofessional conduct of a pharmacist. . . .'

Id. § 390--5--(a)(9). This declaration is followed by thirteen prohibitions previously set forth. We cannot imagine a more forcefully declared legislative intention to describe with particularity the grounds constituting 'grossly unprofessional conduct.' The Board has offered nothing to place in doubt this clear legislative intent. ⁹

Such a construction of section 390--5 is further supported by the Legislature's grant of rule-making powers to the Board. Section 390--4(j) empowers the Board:

'to promulgate rules and regulations governing standards of practice and operation of pharmacies including, but not limited to, rules and regulations governing the method of advertising, promotion and standards for filling and refilling prescriptions, such regulations to be designed to insure methods of operation and conduct which protect the public health, safety and welfare and prevent practices or operations which may tend to lower professional standards of conduct.'

Id. § 390--4(j). Sections 390--5(a)(6) and (b)(2) both provide for suspension or revocation of licenses and permits respectively upon proof of violation of any properly adopted rules of regulations promulgated by the Board. ¹⁰ It is only by means of these statutorily granted rule-making powers that the Legislature has empowered the Board to provide additional grounds for sanctions.

II

The Board's construction of section 390--5(a)(9), which would permit suspension or revocation of licenses and permits for conduct not specifically defined or prohibited by the statute, would render the statute unconstitutional on grounds of vagueness in violation of the Due Process Clause of the Fourteenth Amendment. The Pharmacy Act clearly indicates the Legislature's intention to specifically define 'grossly unprofessional conduct' by means of the thirteen enumerated grounds provided in the statute in order to provide in advance clear notice of what is prohibited conduct and thus avoid vagueness defects. We are also 'guided' by the presumption '(t)hat the Legislature does not intend to violate the Constitution of the United States. . . .' Act of May 28, 1937 P.L. 1019, art. IV, § 52(3), 46 P.S. § 552(3); see Philadelphia v. Depuy, 431 Pa. 276, 279, 244 A.2d 741, 743 (1968); Milk Control Commission v. Battista, 413 Pa. 652, 659, 198 A.2d 840, 843 (1964).

The Supreme Court of the United States has firmly established that '(a) State cannot exclude a person from the practice of law or from any other occupation in a manner or...