IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frederick P. McLeish, :

Petitioner :

:

v. : No. 273 C.D. 2016

: Submitted: September 2, 2016

Bureau of Professional and :

Occupational Affairs, State Board :

of Pharmacy, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: September 27, 2016

Frederick P. McLeish (McLeish), pro se, petitions for review of the 

final adjudication of the State Board of Pharmacy (Board) revoking his license to 

practice pharmacy in Pennsylvania pursuant to Section 5(a)(10) of the Pharmacy 

Act, 63 P.S. §390-5(a)(10).1 For the reasons that follow, we affirm.

I.

In December 2014, upon receiving information that McLeish was 

“terminated from employment by his hospital employer following his admission 

 

1 Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. §390-5(a)(10).
2

that, over the course of approximately two months, he diverted IV Morphine, 

Fentanyl and Hydroxizine tablets (all controlled drugs) for his own use and without 

a valid prescription on multiple occasions, at times diluting prescriptions intended 

for patient use,” the New Jersey State Board of Pharmacy (New Jersey Board)

approved an Interim Consent Order of Voluntary Surrender of License for 

McLeish and ordered him to immediately cease and desist from engaging in the 

practice of pharmacy in the State of New Jersey, pending rehabilitation and 

monitoring requirements. (Certified Record (C.R.) at No. 1, Exhibit A, page 1.)

As a result, the Bureau of Professional and Occupational Affairs 

(Bureau) filed an order to show cause as to why the Board should not suspend, 

revoke or otherwise restrict his license to practice pharmacy in the Commonwealth 

of Pennsylvania, which had been inactive since 2002. The Bureau alleged that 

pursuant to Section 5(a)(10) of the Pharmacy Act, 63 P.S. §390-5(a)(10), the Board 

has the authority to suspend, revoke or otherwise restrict McLeish’s license or 

impose civil penalties because he received disciplinary action by a proper licensing 

authority of another state.

In response, McLeish submitted a letter stating, in pertinent part:

I requested an inactive status be placed on my licensure 

in Pennsylvania over a decade ago, which was granted as 

I chose not to practice in Pennsylvania at that time. I 

respectfully request that my license remain on inactive 

status, as I have no plans at this time to reactivate my 

licensure or to practice pharmacy in the Commonwealth 

of PA.

Of significant note is the fact that I enrolled in, and am a 

member in good standing, with the Professional 
3

Assistance Program of New Jersey with all the 

monitoring and reporting requirements commensurate 

with that organization.

(C.R. at No. 3.)

A hearing before a hearing examiner was held as scheduled but 

McLeish did not attend. The Bureau entered into evidence its order to show cause 

and McLeish’s answer to the order.

Finding a lack of mitigating evidence to support the imposition of a 

lesser sanction, the hearing examiner proposed that McLeish’s license to practice 

pharmacy in Pennsylvania be indefinitely suspended until his license in New 

Jersey has been restored to non-probationary, unrestricted status. The hearing 

examiner reasoned that the New Jersey Board suspended McLeish’s license based 

on serious concerns over his ability to practice safely due to his drug impairment 

and Pennsylvania’s citizens should be given as much protection as New Jersey’s.

The hearing examiner also noted the Board’s prior dealings with 

respect to McLeish’s license, including the following: (1) in April 2003, the Board 

indefinitely suspended McLeish’s license and assessed a civil penalty of $1,500 

based on findings that McLeish failed to comply with continuing education courses 

and procured a license through fraud, misrepresentation or deceit by using 

duplicate forms and non-approved courses to indicate that he had fulfilled the 

continuing education requirements; (2) in November 2006, after McLeish 

completed the terms of his suspension, the Board reinstated his license to reflect its 

expired status; (3) in December 2006, the Board suspended McLeish’s license for a 
4

period of three years, and stayed the suspension in favor of three years of probation 

in Pennsylvania’s monitoring program, due to disciplinary action taken by the New 

Jersey Board in September 2002 based on allegations that McLeish diverted 

Schedule II controlled substances for his own use from his employer, and 

McLeish’s unfitness to practice safely due to intemperance in the use of alcoholic 

beverages, controlled substances or any other substances that impair the 

performance of professional duties; and finally, (4) in February 2008, the Board 

reinstated McLeish’s license after he successfully completed the terms and 

conditions of his December 2006 probation.

The Board issued a notice of intent to review the record established 

before the hearing examiner and neither party filed a brief on exceptions to the 

hearing examiner’s proposed adjudication. The Board then issued its final 

adjudication and order, adopting the history, findings of fact, conclusions of law 

and portions of the discussion of the hearing examiner’s proposed adjudication, 

and modifying the hearing examiner’s proposed order by revoking McLeish’s 

license. The Board explained:

The Board believes that the sanction imposed needs to 

send the appropriate message to [McLeish] that 

reciprocal discipline involving the diversion of drugs by 

members of the profession will not be tolerated and that 

the Board takes such matters very seriously in light of its 

role in protecting the safety of the public as well as the 

integrity of the profession.

The Board believes that the point of discipline is 

multifaceted. There is a deterrent effect and a 

punishment component that must be factored in when 

determining the appropriate sanction. Clearly, each 

sanction must be crafted from the specific facts of each 

case to achieve its desired results. Here, the Board finds 
5

that in order to fulfill its duty as protectorate of the public 

and to the integrity of the profession it needs to send a 

clear message about the severity of [McLeish’s] 

violations – both to the citizens of the Commonwealth 

and to [McLeish] himself. Therefore, it is necessary to 

impose a more stringent sanction than the one 

recommended by the hearing examiner in her proposed 

report.

Great trust is placed in pharmacists as healthcare 

providers. Pharmacists have the responsibility to ensure 

that prescription drugs are legally distributed. Drug 

diversion has led to numerous overdose deaths within 

this Commonwealth and throughout the country. 

[McLeish’s] actions in failing to conform to the 

prevailing standards of practice in New Jersey were not 

only a violation of this Act but they exhibit a complete 

lack of professionalism and responsibility to the public 

when dealing with powerful narcotics. [McLeish’s] 

actions are extremely troubling to the Board in light of 

the ongoing battle with drug diversion in this 

Commonwealth and throughout the country coupled with 

the fact that [McLeish] had committed similar violations 

in the past and apparently did not value the second 

chance that was afforded to him.

(C.R. at No. 9, pages 3-4.)

II.

On appeal,2 McLeish argues that the Board’s revocation of his license 

is excessive and not supported by substantial evidence because his Pennsylvania 

 

2 Our review determines whether the Board abused its discretion, committed an error of 

law, or violated constitutional rights. DePanfilis v. State Board of Pharmacy, 551 A.2d 344, 345 

(Pa. Cmwlth. 1988). The Board’s decision must be supported by substantial evidence. Cassella 

v. State Board of Medicine, Bureau of Professional and Occupational Affairs, 547 A.2d 506, 510 

n.23 (Pa. Cmwlth. 1988). “Substantial evidence is that relevant evidence which a reasonable 

(Footnote continued on next page...)
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license has been inactive since 2002 and he has no intention of practicing in 

Pennsylvania. As a result, McLeish contends that he is not in a position to harm 

the citizens of Pennsylvania and, thus, an indefinite suspension of his Pennsylvania

license until his license in New Jersey has been restored to non-probationary, 

unrestricted status would be sufficient.

Section 5(a)(10) of the Pharmacy Act provides:

(a) The board shall have the power to refuse, revoke or 

suspend the license of any pharmacist upon proof 

satisfactory to it that the pharmacist:

***

(10) Has had a license to practice pharmacy 

suspended, revoked or refused, or received other 

disciplinary action by the proper pharmacist licensing 

authority of another state, territory or country.

63 P.S. §390-5(a)(10) (emphasis added).

The Board is not bound by the hearing examiner’s sanction. See 

Telesford v. Bureau of Professional and Occupational Affairs, State Board of 

Medicine, 916 A.2d 1218 (Pa. Cmwlth. 2007). Indeed, our Supreme Court has 

expressly held that where, as here, the facts are undisputed and the record reflects 

that the practitioner was given a full and fair opportunity to present his evidence 

 

(continued...)

mind might accept as adequate to support a conclusion.” Hercules, Inc. v. Unemployment 

Compensation Board of Review, 604 A.2d 1159, 1163 (Pa. Cmwlth. 1992).
7

and arguments to the hearing examiner, procedural due process does not require 

that he be given additional notice and another hearing before the Board imposes a 

harsher sanction. Telang v. Bureau of Professional and Occupational Affairs, 751 

A.2d 1147, 1151–52 (Pa. 2000).

Given McLeish’s licensure history in Pennsylvania in conjunction 

with his substance abuse issues, the disciplinary action taken against him by the 

New Jersey Board, the lack of mitigating evidence and the state’s interest in 

protecting its citizenry, the Board’s revocation of McLeish’s license to practice 

pharmacy in Pennsylvania, as is its prerogative under Section 5(a)(10) of the 

Pharmacy Act, is not in error.

Accordingly, the order of the Board is affirmed.

____________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frederick P. McLeish, :

Petitioner :

:

v. : No. 273 C.D. 2016

:

Bureau of Professional and :

Occupational Affairs, State Board :

of Pharmacy, :

Respondent :

O R D E R

AND NOW, this 27th day of September, 2016, the Final Adjudication 

and Order of the Bureau of Professional and Occupational Affairs, State Board of 

Pharmacy dated December 18, 2015, is hereby affirmed.

____________________________________

DAN PELLEGRINI, Senior Judge