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LILLIAN WYER v. COMMONWEALTH PENNSYLVANIA (05/16/84)

decided: May 16, 1984.

LILLIAN WYER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of Appeal of: Lillian Wyer, dated November 3, 1982.

COUNSEL

Stephen F. Gold, for petitioner.

Phillip B. Rosenthal, Assistant Counsel, for respondent.

Judges MacPhail and Doyle. Opinion by Judge MacPhail. Judge Williams, Jr. did not participate in this decision.

Author: Macphail

[ 82 Pa. Commw. Page 464]

The issue in this appeal involves the propriety of a decision of the Bureau of Blindness and Visual Services (BBVS) to cancel an agreement it made with Lillian Wyer (Petitioner), to operate a vending facility in the Delaware County Courthouse. The Department of Public Welfare (DPW) held a hearing following the agreement cancellation and subsequently affirmed the action of BBVS. The instant appeal followed.*fn1

Petitioner has been a blind vendor for more than twenty-three years and currently operates a vending facility in the former Federal Courthouse at Ninth and Market Streets in Philadelphia. On May 25, 1982, Petitioner received an invitation to bid on a new vending facility in the Delaware County Courthouse. Petitioner submitted a bid for the facility and was notified, by letter dated June 11, 1982, that she had been awarded the location based on her seniority. The bid proposal states that, " This acceptance and award constitutes a binding contract between the vendor and the Bureau of Blindness and Visual Services." (Emphasis in original.) We also observe that pertinent BBVS regulations provide that a license to operate the

[ 82 Pa. Commw. Page 465]

    vending facility is granted to the vendor following the contract award. Section 7012.31 of the Policy and Procedure Manual of BBVS (BBVS Manual), 12 Pa. B. 984-5 (1982). Petitioner was scheduled to begin operating the new facility on July 2, 1982.

On June 29, 1982, however, Petitioner received a letter from BBVS canceling her vending agreement. The basis for the cancellation was a request by Delaware County officials for a vendor other than Petitioner. The county officials had apparently received adverse comments from the U.S. Department of General Services (DGS) regarding Petitioner's operation of her present facility as well as another prior vending location on federal property. The County, accordingly, concluded that Petitioner was not "an acceptable vendor."

BBVS contends that it was required to cancel Petitioner's agreement based on the following regulation:

[T]he [BBVS] may cancel a contract only in the following instances:

     b. request of the owner of the premises on which the ...


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