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BENGAL AND YOUNGWOOD PHARMACY v. STATE BOARD PHARMACY (07/12/71)

decided: July 12, 1971.

BENGAL AND YOUNGWOOD PHARMACY
v.
STATE BOARD OF PHARMACY



Appeal to the Court of Common Pleas of Dauphin County from the adjudication and order of the State Board of Pharmacy in case of State Board of Pharmacy v. John Bengal, Individually, and John Bengal, Trading as Youngwood Pharmacy. Appeal transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.

COUNSEL

Thomas R. Ceraso, with him Scales, Shaw, Lyons & Ceraso and Thomas D. Caldwell, Jr., Caldwell, Clouser & Kearns, for appellant.

Walter W. Wilt, Assistant Attorney General, with him Fred Speaker, Attorney General, for appellee.

Judges Kramer, Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 2 Pa. Commw. Page 348]

This is an appeal by John Bengal, individually and trading as Youngwood Pharmacy, from an adjudication and order of the State Board of Pharmacy which suspended his pharmacy permit for a period of 90 days and his pharmacy license for a period of one year. A supersedeas was granted when this appeal was filed.

Appellant filed nine exceptions to the adjudication and order but has abandoned all but those that raise the following three issues:

(1) Was due process denied appellant when he was not afforded an opportunity to file a brief with the Board and to have oral argument prior to adjudication?

(2) Was the Board correct when it found as a fact that the drugs appellant dispensed without prescription were dangerous drugs?

[ 2 Pa. Commw. Page 349]

(3) Was the order of the Board unduly harsh and unreasonable in the severity of the suspensions?

We need consider only the first of these exceptions, i.e., appellant did not have an opportunity to file a brief with the Board prior to its order. For this reason, and this reason alone, we must remand the case to the Board to give appellant an opportunity to file a brief and, if the Board will hear it, to present oral argument upon the substantial issues.

Nothing could be clearer than the mandatory provision of the Administrative Agency Law with regard to briefs: "All parties shall be afforded opportunity to submit briefs prior to adjudication. Oral argument upon substantial issues may be heard by the ...


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