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November 15, 1951



M. E. Maurer and Nissenbaum & Maurer, all of Philadelphia, for appellant.

Mitchell W. Miller and Levi, Mandel & Miller, all of Philadelphia, for appellee.

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

Author: Reno

[ 170 Pa. Super. Page 35]

RENO, Judge.

Defendant appealed from a judgment entered against him on the pleadings in an action on a book account for beer sold by plaintiff, a New York brewing corporation, to defendant, a Pennsylvania malt beverage licensee.

Defendant relied upon the Beverage License Law of May 3, 1933, P.L. 252, § 23(V), as amended, 47 P.S. § 100f(V), which provides: 'It shall be unlawful * * * (V) for any licensee, * * * to sell, or purchase or receive, any malt or brewed beverages except for cash, * * *. No right of action shall exist to collect any claims for credit extended contrary to the provisions of this clause.' (Emphasis added.)

The court below held that, since plaintiff was not and could not be*fn1 a Pennsylvania licensee, the quoted

[ 170 Pa. Super. Page 36]

    section did not apply, and that the sales were made in interstate commerce and so were beyond the reach of Pennsylvania legislation. It ignored the elementary and fundamental principle that where a buyer lacks legal competence to purchase, the seller lacks legal capacity to collect.*fn2 Moreover, the decision discriminated against Pennsylvania brewers by allowing to outside brewers a privilege denied to our own, a result scarcely within legislative contemplation.

The case is partially governed by § 23(V). That section, however, must be read in its contextual relation to § 29, added to the Law, supra, by the Act of June 16, 1937, P.L. 1827, § 1, 47 P.S. § 100k-1, the pertinent part of which is printed in the margin.*fn3 Under the latter section outside brewers may sell to Pennsylvania

[ 170 Pa. Super. Page 37]

    only upon compliance with the rules and regulations promulgated by the Pennsylvania Liquor Control Board ' In addition to compliance with all other provisions of this act '. The italicized clause unambiguously refers to § 23(V), supra, and imposes upon outside brewers the obligation to sell their products to Pennsylvania licensees for cash only.

Under the authority conferred by the Law,*fn4 the Board promulgated a regulation which provides: 'All sales of malt or brewed beverages intended to be transported into Pennsylvania for delivery or use therein, shall be consummated outside of this Commonwealth and shall be paid for in full prior to or at the time of delivery to the consignee in Pennsylvania, who shall pay all transportation charges.'*fn5 This regulation was made pursuant to express statutory authority, and we are permitted to take judicial notice of it. Cassarello v. U. S., D.C., 271 F. 486, affirmed 3 Cir., 279 F. 396; 20 Am.Jur., Evidence, § 44. Both the Law and the regulation forbid sales on credit, and plaintiff cannot recover.

Sales by outside brewers to Pennsylvania brewers are not protected by the Commerce Clause of the Federal Constitution, art. 1, § 8, cl. 3. The Twenty-first Amendment, which repealed the Prohibition Amendment, expressly provides, § 2: 'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.' Pennsylvania possesses plenary power respecting importation of intoxicating liquors, Ziffrin, Inc., v. Reeves,

[ 170 Pa. Super. Page 38308]

U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128, and exercised it in the Beverage License Law, 47 P.S. § 84 et seq.

At the argument it was stated that defendant had given checks for the shipments of beer, which were dishonored by the banks. Plaintiff argues that, since its complaint impliedly averred that fact, it should be allowed to recover as though it had declared upon the checks instead of the book account. The short answer is that the Law commands cash sales, prohibits extension of credit, and closes the courts to actions to recover the price of liquors sold to Pennsylvania licensees or consumers. This has long been the policy of our law, one instance of which is the Act of May 8, 1854, P.L. 663, § 7, 47 P.S. § 663, which provides: 'No action shall be maintained or recovery had in any case for the value of liquors sold in violation of this or any other act, and defense may be taken in any case against such recovery, without special plea or notice.' This Act is still in force. See also Conemaugh Brewing Co. v. Bennett, 60 Pa. Super. 543; Blandi v. Pellegrini, 60 Pa. Super. 552. The Beverage License Law, supra, cannot be evaded by suit on a book account, a note, or a check, or by any device whereby credit is extended or payment in cash postponed. In the beer business, 'cash' means 'cash on the barrel head.'

The judgment is reversed and is here entered for defendant.

GUNTHER, J., absent.

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