Wilmington Vitamin & Cosmetic Corp. v. Tigue
| Decision Date | 18 July 1962 |
| Citation | 55 Del. 20,183 A.2d 731 |
| Court | Delaware Superior Court |
| Parties | , 55 Del. 20 WILMINGTON VITAMIN & COSMETIC CORP., a corporation of the State of Delaware, Petitioner, v. Paul C. TIGUE, G. Edward Casper, C. Emerson Johnson, F. Perry Raggains, and W. Lemar Pierce, as Members of the Delaware State Board of Pharmacy, Respondents. |
Ernest S. Wilson, Jr., of Wilson & Lynam, Wilmington, for appellant, Wilmington Vitamin & Cosmetic Corp.
Thomas Herlihy, III, and Peter W. Green, Deputy Attys. Gen., and Joseph Donald Craven, Wilmington, for Delaware State Board of Pharmacy, appellees.
On December 1, 1961 Wilmington Vitamin & Cosmetic Corp. (referred to hereafter as Appellant 1) filed an application with the Delaware State Board of Pharmacy (referred to hereafter as Board), pursuant to the pertinent provisions of the State Laws, for a permit to open and establish a pharmacy. The application was made on the form prescribed by the Board and all the information called for by the statute and the application form was submitted to the Board.
The pertinent provisions of the statute 2, found in Title 24 Del.C., Chapter 25, are herewith set out:
'(1) the pharmacy for which the permit is sought will be conducted in full compliance with the law and with the rules and regulations of the Board;
'(2) the location and appointments of the pharmacy are such that it can be operated and maintained without endangering the public health or safety; and
'(3) the pharmacy will be constantly under the personal and immediate supervision of a registered pharmacist, a permit shall be issued to such persons as the Board shall deem qualified to conduct such pharmacy.
'(b) No permit shall be issued * * * for the conduct of a pharmacy unless the premises of such pharmacy shall be equipped with proper sanitary appliances and kept in a clean and orderly manner.'
The Board caused an inspection to be made of Appellant's premises on December 15, 1961 by its Secretary, David Krigstein. Assumedly, the Secretary found Appellant's premises, § 2553(a)(2) and (3) and (b), were satisfactory. No immediate action, however, was taken by the Board on the application, so on February 7, 1962 Appellant instituted Civil Action No. 143, 1962 in this Court, seeking an issuance of a peremptory writ of mandamus, 'directing' the Board 'to issue a permit pursuant to 24 Del.Code § 2553' or in the alternative 'to notify the [appellant] in writing of its refusal to issue a permit pursuant to 24 Del.Code, Section 2554.'
The petition in that case, inter alia, alleged:
It further alleged that:
This Court held a hearing on this petition and the Board's answer thereto, following which hearing Judge Christie of this Court issued 3 a Peremptory Writ of Mandamus, on March 7, 1962, ordering the Board to take action on the application for a permit and to give notice of the Board's action not later than March 31, 1962.
Following the issuance of the Peremptory Writ of Mandamus the Board met at Dover on March 25, 1962 and acted on the application. The pertinent minutes of the Board (which are a part of the record on appeal) set out the action taken by the Board. These minutes are set forth in full, so far as they pertain to Appellant's application:
'Application for discussion: Wilmington Vitamin and Cosmetic Corp. of 613 Market Street, Wilmington, Delaware. Inspector's report was given:
'1) Edward Pastor initiated the request for the original application. A report was read concerning Mr. Pastor's previous record from Narcotic Division of Treasury Department.
'2) Violation of trademark act and Section 2589 of Delaware Code Title 24 Chapter 25 substitution of drugs.
'3) Affidavit from Mr. Marshall Kalen was read as received from attorney Mr. Ernest Wilson representing Wilmington Vitamin & Cosmetic Corp. '4) Letter was read as received from Deputy Attorney General Thomas Herlihy III. This letter 4 concerned recommendations to the Board concerning this application under discussion.
'5) Letter from Pennsylvania State Board of Pharmacy concerning Mr. Pastor's suspension of Pharmacy license from July 13, 1960 to September 17, 1961.
'This completed inspector's report.
'Following discussion from Board Members:
'1) Mr. Edward Pastor has been seen behind the counter in 613 Market Street of Wilmington Vitamin & Cosmetic Corporation by Mr. G. Edward Casper.
'2) Firm has violated Delaware Fair Trade Law--Title 6 Chapter 19.
On March 27, 1962 a letter was mailed to Wilmington Vitamin & Cosmetic Corp., signed by David J. Krigstein, Secretary of the Delaware State Board of Pharmacy. That letter reads in full as follows:
'Gentlemen:
'The application for a pharmacy permit at 613 Market Street, Wilmington, Delaware has been denied.
'The denial is based on Del.Code Title 24, Chapter 25, Section 2553(a)(1)' 5.
'Cordially,
'/s/ David J. Krigstein
'Secretary'
On March 29, 1962, two days after the issuance of the Board's letter of denial of the application, Appellant filed this appeal, pursuant to 24 Del.Code, Section 2557(a), which statute is quoted in footnote 1, supra, page 2.
The minutes, as set forth above on pages 7 and 8, refer to an inspector's report followed by two numbered paragraphs which the Court regards as the findings required by the statute, Title 24 Del.C. § 2553, showing the reasons for denial of the application. It is to be noted that these findings in their entirety are as follows:
'1) Mr. Edward Pastor has been seen behind the counter in 613 Market Street of Wilmington Vitamin & Cosmetic Corporation by Mr. G. Edward Casper.
'2) Firm has violated Delaware Fair Trade Law--Title 6, Chapter 19.'
Some comment is necessary as to whether the reasons given by the Board are legally sufficient to justify denial of the application. This comment will include some references to the record certified by the Board to this Court, and on which record Appellant's application was considered and determined, as it shows the basis for the reasons given by the Board for denying the application. Reference will be made too to the law, so that a proper perspective of the entire situation can be established for a determination by this Court of the case on appeal.
The record shows first that one Edward Pastor addressed a letter in November 1961 to Mr. Krigstein, Secretary of the Board reading:
'Kindly send Application for Opening a Pharmacy in State of Delaware.
'I would greatly appreciate Application soon as possible.'
There was a Postscript to the letter, reading:
The application from Appellant and as received by the Board made no reference whatsoever to the name of Edward Pastor; his name did not appear therein; moreover, there was an affidavit in the record, made by President of Appellant, stating:
'No person having the name of Edward Pastor or any similar name is now or has ever been an officer, director, or employee of Wilmington Vitamin & Cosmetic Corp.'
Notwithstanding this, the name of Edward Pastor is written into the application, in brackets, under the heading--'Names of all unregistered employees in Pharmacy'.
A Stipulation was filed with the Court, signed by counsel for the parties, stating that Pastor's name 'was inserted in the pharmacy application by David Krigstein, who is Secretary of the Board, and was not inserted by the applicant'. A like statement appears in the Certification of the record, made over the hand of David Krigstein, 'Secretary State Board of Pharmacy'. Five different papers pertaining to Mr. Pastor's past activities and to his record with the Pennsylvania State Board of Pharmacy and the Federal Bureau of Narcotics appear in the record.
No possible relationship of Mr. Casper's 6 having been Mr. Pastor 'behind the counter in 613 Market Street of Wilmington Vitamin & Cosmetic Corporation' is shown with respect to the action of the Board in giving this as a reason for denying of the application, and in light of the application, as submitted, and the affidavit of the Appellant's President, I can see no relevancy under the law between what Mr. Casper saw as to Mr. Pastor's having been on Appellant's premises 7 or to Mr. Pastor's past record with the Pennsylvania State Board of Pharmacy or with the Federal Bureau of Narcotics and the application. This reference to Mr. Pastor has no place in this case on the present record and I propose to and will disregard such references as having no proper place in the record or as affording the Board a reason to refuse the application.
The second reason advanced by the Board for its denial of the application was
'2) Firm has violated Delaware Fair Trade Law--Title 6, ...
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