# Commonwealth v. Gordon

> Supreme Court of Pennsylvania · September 26, 1986 · 511 Pa. 481

URL: https://www.frixlaw.com/law-library/cases/9754510

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Barry Charles GORDON, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** September 26, 1986
- **Citations:** 511 Pa. 481; 515 A.2d 558; 1986 Pa. LEXIS 853
- **Precedential status:** Published
- **Opinion:** Dissent by Zappala
- **Judges:** Nix, Larsen, Flaherty, McDermott, Papadakos, Hutchinson, Zappala
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754510

## Opinion text

ZAPPALA, Justice,
dissenting.
I must dissent to yet another instance where, in the majority’s anxiety to sustain a conviction, the proper application of the law is ignored. In the instant case the majority chooses to apply a strained interpretation of the *489 Controlled Substance and Cosmetic Act, 35 P.S. § 780-101 et seq., rather than admit that the authorities mistakenly charged the Appellee under the wrong subsection of that act. Nowhere in my reading of the constitutional mandate of this Court is there provided an obligation upon us to cure defective complaints or act as a court of criminal equity. I certainly agree with the majority’s conclusion that the legislature did not attempt to allow a pharmacist to “use [his] license as a shield to avoid prosecution”, slip opinion at p. 8. The majority however, ignores the positive statement the legislature has made in that regard by failing to compare the penalties imposable for a violation of section 780-113(a)(16), the section under which Appellee was charged and section 780-113(a)(14) under which the same conduct is prohibited by a practitioner. Section 780-113(b) provides that the violation charged to Appellee is classified as a misdemeanor punishable by imprisonment not exceeding one year and a fine not to exceed to $5,000 or both. However, violation of subsection 14, pertaining to practitioners, is classified as a felony with a possible sentence not to exceed 15 years and a fine not exceeding $250,000 or both or such larger amount as is sufficient to exhaust the assets utilized in and the profits obtained from the illegal activity. 35 P.S. § 780-113(f)(l). Thus it is obvious that the legislature chose to more heavily penalize those who as practitioners have access to controlled substances and therefore have a greater responsibility to prevent their misuse or abuse. I cannot see how much clearer the legislature must delineate that practitioners acting outside the scope of their duties in violation of the act are specifically provided for. As such it is abundantly clear that the Appellee regrettably was charged under the wrong section of the statute and the semantic gymnastics undertaken by the majority do nothing to change that result. I therefore dissent.
NIX, C.J., joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754510. Public record. Not legal advice.