Appeals from the Orders of the Department of Public Welfare in the case of Appeal of: James Rocco, Jr., R.Ph. t/a Rocco's Pharmacy, File No. 12-82-2.
Michael B. Tolcott, with him, Philip L. Blackman and Gilbert B. Abramson, Abramson, Cogan, Kogan, Freedman & Blackman, P.C., for petitioner.
Joel M. Ressler, Deputy Attorney General, with him, Bruce G. Baron, Associate Counsel, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges Rogers and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 100 Pa. Commw. Page 588]
James Rocco, trading as Rocco's Pharmacy (petitioner) appeals two orders of the Department of Public Welfare (DPW) terminating his provider's agreement with DPW for a two year period*fn1 and denying his application for reconsideration of that decision.
DPW notified the petitioner that, as a result of an investigation, his participation as a pharmacist-provider in Pennsylvania's Medical Assistance (MA) program would be terminated due to his violation of DPW regulations. The charges against the petitioner were based, inter alia, upon 15 instances in which he had
[ 100 Pa. Commw. Page 589]
billed DPW for dispensing name-brand prescription drugs to Medical Assistance recipients who had, in fact, been provided with less expensive generic drugs. After numerous hearings, the charges were limited solely to the one based upon the false billings, and the hearing examiner's recommendation was adopted by the Office of Hearing and Appeals, which determined that the remaining charge warranted the termination of the petitioner's provider agreement.
The petitioner contends that the DPW adjudication denied him his due process rights, and he alleges that there had been an impermissible commingling of prosecutorial and adjudicatory functions.*fn2 He argues that such commingling is demonstrated by DPW's use of its Office of Legal Counsel (Counsel) to prosecute cases before the agency while the Counsel is also responsible for providing legal advice to the adjudicators who consider the matter.
This Court has previously held that an impermissible commingling of adjudicatory and prosecutorial functions, resulting in a denial of due process, takes place
[ 100 Pa. Commw. Page 590]
where an adjudicatory board's legal advisor is the direct supervisor of a prosecuting attorney. Goldberg v. State Board of Pharmacy, 49 Pa. Commonwealth Ct. 123, 410 A.2d 413 (1980). It has also held, however, that even where two participating attorneys are answerable to the same supervisor, no impermissible commingling occurs, provided that the functions of the two are separated. Rosenthal v. State Board of Pharmacy, 73 Pa. Commonwealth Ct. 132, 457 A.2d 243 (1983). There is no allegation here that the attorneys involved in these proceedings collaborated or that the prosecuting attorney had any role in advising either the Secretary or the Executive Deputy Secretary of DPW concerning the proceeding concerned in this matter. The mere fact that both attorneys are from the same ...