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APPEAL ENLISTED MEN'S CLUB TRAFFORD. (ENLISTED MEN'S CLUB TRAFFORD LIQUOR LICENSE CASE.) (01/12/50)

SUPERIOR COURT OF PENNSYLVANIA


January 12, 1950

APPEAL OF ENLISTED MEN'S CLUB OF TRAFFORD. (ENLISTED MEN'S CLUB OF TRAFFORD LIQUOR LICENSE CASE.)

COUNSEL

Andrew G. Uncapher, Special Deputy Attorney General, Horace A. Segelbaum, Deputy Attorney General, T. McKeen Chidsey, Attorney General, for appellant.

Scales & Shaw, A. C. Scales, Greensburg, Carroll Caruthers, Greensburg, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Fine, JJ.

Author: Rhodes

[ 166 Pa. Super. Page 27]

RHODES, President Judge.

On December 14, 1948, the Pennsylvania Liquor Control Board issued citations directed to Enlisted Men's Club of Trafford to show cause why its club license should not be revoked and the license bond forfeited for violations of the Liquor Control Act and regulations of the board alleged in said citations. Hearings upon such citations were held before an examiner of the board at which time the licensee appeared by counsel, and testimony was submitted on behalf of the board and on behalf of the licensee.

The board on April 19, 1949, in its opinion made the following findings:

'1. The licensed organization is not operated for the mutual benefit of the entire membership in that it is operated by and for James J. Todaro and W. L. Todaro.

[ 166 Pa. Super. Page 28]

'2. The licensed organization, by its servants, agents or employes, failed to conduct its business through officers regularly elected.

'3. The licensed organization, by its servants, agents or employes, failed to fulfill the purpose of its charter.

'4. The licensed organization, by its servants, agents or employes, failed to adhere to its by-laws.

'5. The sale of liquor and/or malt or brewed beverages is the primary purpose of the licensed organization.

'6. Persons are admitted to membership in the licensed organization without written application, investigation and ballot.

'7. The licensed organization, by its servants, agents or employes, failed to charge and collect dues from elected members.

'8. The licensed organization, by its servants, agents or employes, failed and neglected to keep complete and truthful records covering its operation.

'9. On May 21, 1948; on August 15, 1948, and on November 9, 1948, the licensed organization, by its servants, agents or employes, maintained gambling devices and permitted gambling on the licensed premises.

'10. During the month of November, 1948, the licensed organization, by its servants, agents or employes, stored malt or brewed beverages on premises not covered by its license.'*fn1

In pursuance of its findings the board by its orders of April 19, 1949, revoked the license issued to the Enlisted Men's Club of Trafford and ordered the bond filed with the application for license forfeited. See section

[ 166 Pa. Super. Page 29410]

of the Act of 1933, as amended by the Acts of April 16, 1943, P.L. 60, No. 37, May 27, 1943, P.L. 688, 47 P.S. § 744-410.

The licensee appealed on April 27, 1949, to the Court of Quarter Sessions of Westmoreland County. On June 3, 1949, the matter came before the court for hearing de novo in accordance with the provisions of the Act. It was stipulated and agreed by and between counsel for the board and counsel for the licensee that the testimony taken before the examiner would constitute the testimony upon which the court of quarter sessions would determine the appeal. No additional testimony was presented.

The court below did not find the facts to be otherwise than found by the board. The testimony established the violations charged in the citations and as found by the board. The court below was of the opinion that a suspension for a period of forty-five days effective the 20th day of June, 1949, was sufficient, and by its order of June 3, 1949, it sustained the appeal and reversed the board's order of revocation.

The Pennsylvania Liquor Control Board then appealed from the order of the court below on July 6, 1949, to this Court.

The court below in an opinion filed August 13, 1949, stated 'that the revocation was administering too severe a penalty even in the light of the infractions appearing in this record.' The reversal of a board's order on such a ground has been held unwarranted repeatedly. In re Reichwein Liquor License Case, 160 Pa. Super. 71, 49 A.2d 869; In re Lande Liquor License Case, 163 Pa. Super. 365, 368, 62 A.2d 101. The court of quarter sessions does not have discretionary power to act in an arbitrary manner in reversing such an order of the board, In re Janiro Liquor License Case, 163 Pa. Super. 398, 402, 62 A.2d 102; and it is our duty on this appeal to determine

[ 166 Pa. Super. Page 30]

    whether the court below has abused its discretion or committed an error of law. Pacewicz Liquor License Case, 152 Pa. Super. 123, 126, 31 A.2d 361. It should be unnecessary for us to repeat that unless the court's findings of fact are different from those of the board, the penalties imposed by the board in the proper exercise of its discretion must stand. See In re Reichwein Liquor License Case, supra, 160 Pa. Super. 71, 49 A.2d 869; In re Andracchio Liquor License Case, 160 Pa. Super. 74, 49 A.2d 843; In re East End Ex-Service Men's Association Liquor License Case, 162 Pa. Super. 512, 58 A.2d 194; In re Janiro Liquor License Case, supra, 163 Pa. Super. 398, 62 A.2d 102; In re Ortuglio Liquor License Case, 163 Pa. Super. 402, 62 A.2d 69.

Appellee has filed a motion to quash the appeal on the ground that it was not taken and perfected within the time prescribed by the applicable Act of Assembly. The board filed an answer. The motion is based upon section 410 of the Act of 1933, as further amended by the Act of May 20, 1949, No. 469, 47 P.S. § 744-410. Section 4 of the amendatory act of 1949 provides, inter alia: 'The said licensee or the board may, within thirty days from the filing of the order or decree of said court, file an appeal therefrom to the Superior Court.' The same limitation has been made applicable to appeals under sections 404 and 408 of the Act, 47 P.S. §§ 744-404, 408. Previously section 404 provided that there should be no further appeal from the action of the court of quarter sessions; section 410 did not contain this prohibition. See In re Pacewicz Liquor License Case, supra, 152 Pa. Super. 123, 125, 126, 31 A.2d 361.

Section 5 of the Act of May 20, 1949, No. 469, 47 P.S. § 744-403 note, provides as follows: 'The provisions of this amendatory act shall not apply to nor affect any application for the grant of a license or the renewal or transfer thereof made or pending before the Pennsylvania Liquor Control

[ 166 Pa. Super. Page 31]

Board, or any appeal made to the court from action of the board before the effective date of this act.'

In the present case the action of the board was on April 19, 1949; the appeal was taken to the court of quarter sessions therefrom on April 27, 1949; the order of the court below is dated June 3, 1949; the appeal to this Court was filed on July 6, 1949, which was within the forty-five days allowed under the law as it existed prior to May 20, 1949, the effective date of the Act of 1949. See Act of May 11, 1927, P.L. 972, No. 464, 12 P.S. § 1136. Section 5 of the Act of 1949 is clearly applicable to this appeal under section 410 of the Act of 1933. The motion to quash is dismissed.

The order of the court below is reversed, and the orders of the board are reinstated. Costs to be paid by appellee.

ARNOLD, J., absent.


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