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MARTIN I. ASKIN v. COMMONWEALTH PENNSYLVANIA (01/13/81)

decided: January 13, 1981.

MARTIN I. ASKIN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of Martin I. Askin, dated October 20, 1978.

COUNSEL

Doris J. Dabrowski, Tabas and Furling, P.C., for petitioner.

Jean E. Graybill, Assistant Attorney General, for respondent.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 56 Pa. Commw. Page 81]

Appellant appeals the order of the Hearing and Appeals Unit of the Department of Public Welfare (DPW), upholding DPW's permanent suspension of appellant from the Medical Assistance (MA) Program and sustaining DPW's demand for restitution of $91,403.65 paid to appellant under the MA Program. We affirm.

As a pharmacist, appellant held a license to operate a pharmacy at 4222 Lancaster Avenue in Philadelphia, Pennsylvania. As the president and principal shareholder of a close corporation, appellant also operated

[ 56 Pa. Commw. Page 82]

    a medical center at 817 North Forty-second Street in Philadelphia (medical center), which contained (1) a pharmacy managed by appellant and (2) a dental office. On September 16, 1977, the State Board of Pharmacy found that appellant "operated a pharmacy at 817 North 42nd Street, Philadelphia, Pennsylvania, without a permit," and appellant's pharmacist's license was suspended for two months. During the period for which appellant received the MA payments under investigation, all the prescriptions which appellant compounded were written by professionals employed at appellant's medical center; 97.1% of the prescriptions emanated from the dental office at the medical center, and 95.2% of the dental office prescriptions were not compensable under the MA Program.

Appellant maintains that he neither violated the provisions of the MA Program nor the standards of his profession as a pharmacist by (1) dispensing drugs from an unlicensed pharmacy or (2) filling the prescriptions of a dentist whose work at appellant's medical center exceeded the scope of his dental practice.

Appellant contends that the finding of the State Board of Pharmacy is not determinative of whether appellant dispensed drugs from an unlicensed pharmacy. Appellee DPW argues that appellant is barred from litigating this issue by the doctrine of collateral estoppel.

[A] plea of collateral estoppel is valid if (1) the issue decided in the prior adjudication was identical with the one presented in the later action, (2) there was a final judgment on the merits, (3) the party against whom the plea is asserted was a party . . . to the prior adjudication, and (4) ...


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