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APPEAL CLARENDON V. F. W. HOME ASSN. (CLARENDON V.F.W. HOME ASSOCIATION LIQUOR LICENSE CASE.) (07/20/50)

July 20, 1950

APPEAL OF CLARENDON V. F. W. HOME ASSN. (CLARENDON V.F.W. HOME ASSOCIATION LIQUOR LICENSE CASE.)


COUNSEL

Carl A. Cassone, Allentown, for Pennsylvania, Federation of Fraternal and Social Organization, amicus curiae intervenor.

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

Author: Reno

[ 167 Pa. Super. Page 46]

RENO, Judge.

The Pennsylvania Liquor Control Board refused the application of Clarendon V. F. W. Home Association, appellant, for a club liquor license because the quota of licenses for the Borouth of Clarendon was filled. Act of June 24, 1939, P.L. 806, § 2, 47 P.S. § 744-1002. Upon appeal the court below by an order dated October 26, 1949, and entered during its November, 1949 term of court, held that the quota provisions did not apply to clubs, reversed the board, and ordered issuance of a license to the club. The board did not appeal, and the order became final 30 days after its date. Act of May 20, 1949, P.L. 1551, § 2, 47 P.S. § 744-404. The board nevertheless did not issue a license, and on December 30, 1949, during the February, 1950 term of court, petitioned the court to reconsider its order of October 26, 1949, pending a decision of this Court of an appeal involving the construction of the quota provisions

[ 167 Pa. Super. Page 47]

    of the Act. The appeal referred to was Goodwill Fire Company of Bethlehem Liquor License Case, 166 Pa. Super. 42, 70 A.2d 706, which was argued here on November 14, 1949, and decided on January 12, 1950. After the Goodwill case was decided, the court below, on February 13, 1950 and during its May, 1950 term,*fn1 pronounced the order of October 26, 1949, 'without force and effect', and held that a license 'cannot issue.' The club appealed from the last order.

The court below was without authority to enter the order of February 13, 1950, and it will be reversed. The reasons which support that conclusion can be stated almost categorically:

1. After the expiration of the November, 1949 term the court was without power to reconsider, alter, amend, or to do any act in derogation of an order, adjudication or sentence entered during that term. Commonwealth ex rel. Billman v. Burke, 362 Pa. 319, 66 A.2d 251; Commonwealth ex rel. Micholetti v. Ashe, 359 Pa. 542, 59 A.2d 891; Moskowitz's Registration Case, 329 Pa. 183, 196 A. 498; In re Kensington and Oxford Turnpike Co., 97 Pa. 260; Commonwealth v. Mayloy, 57 Pa. 291; Commonwealth ex rel. Nagle v. Smith, 154 Pa. Super. 392, 36 A.2d 175. Cf. In re Petition of McNeal, 71 Pa. Super. 101, and In re Long's License, 65 Pa. Super. 10, where liquor licenses had been refused and during the same term petitions for rehearings were filed, grants of licenses at subsequent terms were held proper.

2. The rule applies 'particularly where the time for appeal also has expired'. Opening of Parkway, between City Hall and Fairmount Park, 267 Pa. 219, 226, 110 A. 144, 146.

[ 167 Pa. Super. Page 483]

. The rule applies even where the purpose of the reconsideration, after the expiration of the term, is to correct an order which is erroneous in law. Frantz v. City of Philadelphia, 333 Pa. 220, 3 A.2d 917; Fitzpatrick v. Bates, 92 Pa. Super. 114; Betts v. Y.M.C.A., 88 Pa. Super. 568.

4. A litigant cannot, by a petition to reconsider an appealable order from which no appeal has been taken within the period allowed by law, reopen the order and thereby nullify the limitation for appeal fixed by statute. Beaver Valley Water Co. v. P. U. C., 140 Pa. Super. 297, 14 A.2d 205. See also Philadelphia Suburban Transp. Co. v. DiFrancesco, 362 Pa. 326, 66 A.2d 254; ...


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