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PATRICIA A. BEHARRY v. FRANK B. MASCARA (10/29/86)

decided: October 29, 1986.

PATRICIA A. BEHARRY, CONTROLLER OF WASHINGTON COUNTY, PENNSYLVANIA, APPELLANT
v.
FRANK B. MASCARA, METRO PETROSKY, JR., EDWARD M. PASLUSO, COUNTY COMMISSIONERS AND MEMBERS OF THE SALARY BOARD OF WASHINGTON COUNTY, PENNSYLVANIA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Washington County in the case of Frank R. Mascara, Metro Petrosky, Jr., and Edward M. Pasluso, County Commissioners and Members of the Salary Board of Washington County, Pennsylvania v. Patricia A. Beharry, Controller of Washington County, Pennsylvania, No. 221 February Term, 1985.

COUNSEL

Frank C. Carroll, Frank C. Carroll, P.C., for appellant.

Melvin B. Bassi, Bassi and Rega, P.C., for appellees.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 101 Pa. Commw. Page 583]

Appellant, Patricia A. Beharry, Controller of Washington County, Pennsylvania, appeals an order of the Court of Common Pleas of Washington County affirming an earlier order which ordered her to approve payment of the billings for drugs and consultative services of Phillip Sollon, registered pharmacist, in accordance with a contract and the custom and practice of the County Commissioners (appellees). We affirm the trial court.

For some time prior to December 14, 1984, one William DuVall was the registered pharmacist in charge of the Washington County Medical Center (Center), under a contract with the County. On the above date, DuVall requested and received a leave of absence. Phillip Sollon, a pharmacist, was appointed by the County Commissioners to take his place. On January 24, 1985, the County Commissioners executed a contract under which Sollon agreed to perform the services as a pharmacist vendor and consultant, effective January 1, 1985.

[ 101 Pa. Commw. Page 584]

Beharry, as county controller, refused to honor Sollon's bills for services from December 14, 1984 to January 24, 1985. The County Commissioners brought an action in mandamus to compel payment, and simultaneously filed an action for emergency relief. It was assigned to Judge Terputac. He issued an order in which he stated, "After a careful review of the evidence concerning this matter, the court is inclined to believe that an emergency exists only because of the difficulty in securing another pharmacist. . . ." Earlier, he had ordered "that the County Commissioners may order such drugs as are reasonably necessary."

After a final hearing to resolve the whole matter, the trial judge stated:

Washington County operates the Center as part of its governmental functions. . . . Since 1974 the Medical Director would write out the prescription or request, and the pharmacist would supply that which was needed. The pharmacist would send his statement to the staff of the Center who would review the billings. After the bills were reviewed, the staff sent them to the county controller for approval and payment.

The trial judge further found that neither advertising nor bidding was employed by the Commissioners to secure the instant contract. The trial court granted the relief requested and issued a writ of mandamus directing Beharry to pay the amounts due to Sollon under the contract, and the amounts due from December 15, 1984, the latter of which were approved by the Commissioners because of the emergency.

Beharry contends that the contract under which the pharmacist operates is invalid because its terms are unclear and ambiguous; that no standard is set for prices charged for the drugs and no procedure is set forth ...


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