Opinion
Argued January 5, 1971
January 20, 1971.
State Board of Pharmacy — Refusal to grant a second continuance — Denial of accused licensee's rights — Substantial evidence.
1. Where a licensed pharmacist who has been charged with misconduct before the State Board of Pharmacy, after having been granted one continuance of a hearing on the charges, applies for another on grounds which are partially false, if the second continuance is not granted, and if the licensee has had proper notice of the second hearing but does not appear, the State Board of Pharmacy does not deprive him of his rights by proceeding ex parte and revoking his license if there is substantial evidence in support of such action. [133-4]
Argued January 5, 1971, before Judges KRAMER, MENCER, and ROGERS sitting as a panel of three.
Judge THEODORE O. ROGERS, was appointed to fill the place of Judge BARBIERI who was appointed to the Supreme Court of Pennsylvania. Judge ROGERS was sworn in as member of the Commonwealth Court of Pennsylvania on January 4, 1971.
Appeal to the Court of Common Pleas of Dauphin County from the adjudication of the State Board of Pharmacy. Appeal transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.
Hearing ex parte on charges against Arthur Bersh, a licensed pharmacist. Adjudication filed by the State Board of Pharmacy revoking licensee's Registered Pharmacist's license. Licensee appealed. Held: affirmed.
Leslie B. Handler, with him Handler Handler, Louis Lipschitz, for appellant.
Walter W. Wilt, Assistant Attorney General, with him Marvin I. Block, Assistant Attorney General, and Fred Speaker, Attorney General, for appellee.
The only question presented to this Court by the appellant is whether this case should be remanded for a hearing by the State Board of Pharmacy (Board).
The appellant argues that after having been given one continuance the Board improperly refused to grant him a second continuance requested by a telegram sent by his counsel on the morning of the hearing. The record clearly shows that the appellant failed to appear at a hearing after proper notice, and the Board proceeded ex parte. The hearing resulted in a revocation of appellant's pharmacy license for adequate cause.
The reasons given in the telegram for appellant's refusal to appear and requesting the continuance were partially false inasmuch as the record shows that the Board through its counsel met with counsel for the appellant and a judge of the Common Pleas Court of Philadelphia County for the purpose of removing any reason for the appellant not to appear before the Board. This conference successfully accomplished its purpose.
This appellant was not denied any of his rights; and the action of the Board was based upon substantial evidence and was proper. It is therefore the opinion of this Court that the exceptions to the Board's actions should be dismissed and the order of the State Board of Pharmacy affirmed.
ORDER
AND NOW, January 20, 1971, the appeal of Arthur Bersh from the adjudication and order of the State Board of Pharmacy and the exceptions filed by the appellant thereto are hereby dismissed.