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APPEAL ZERMANI (TWO CASES). APPEAL LEPUTA. APPEALS PENNSYLVANIA LIQUOR CONTROL BOARD. (ZERMANI LIQUOR LICENSE CASE.) (07/14/53)

July 14, 1953

APPEAL OF ZERMANI (TWO CASES). APPEAL OF LEPUTA. APPEALS OF PENNSYLVANIA LIQUOR CONTROL BOARD. (ZERMANI LIQUOR LICENSE CASE.)


COUNSEL

Harold R. Bair, Special Deputy Atty. Gen., Horace A. Segelbaum, Deputy Atty. Gen., Robert E. Woodside, Atty. Gen., for appellant.

Edward A. Tobias and Tobias & Weilersbacher, Pittsburgh, Paul N. Barna, Donora, for Henry Zermani.

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

Author: Reno

[ 173 Pa. Super. Page 430]

RENO, Judge.

The 1950 census made available one additional retail liquor license in Carroll Township, Washington County. Seven applications were filed and the Liquor Control Board, after its examiner had held separate hearings upon all the applications, issued a restaurant license to Walter Cox and William Rishert, hereafter called the Cox license or grant. From the Board's order, Henry Zermani, one of the unsuccessful applicants, filed two appeals in the court below; one from the grant of the Cox license and another from the refusal of his application; and John J. Leputa appealed from the refusal of his application. In one order applying to all cases, the court below sustained the appeals, reversed the Board's refusal of licenses to Zermani and Leputa and its grant of the Cox license, and remanded the proceedings to the Board for further consideration. The Liquor Control Board brought three separate appeals to this Court.

I. It is immediately apparent that Zermani had no standing to appeal from the grant of the Cox license. The Liquor Code of April 12, 1951, P.L. 90, § 464, 47 P.S. § 4-464, so far as here pertinent, provides: 'Any applicant who has appeared before the board or any agent thereof at any hearing, * * * may appeal, or any church, hospital, charitable institution, school or public playground located within three hundred feet of the premises applied for, aggrieved by the action of the board in granting the issuance of any such license * * * may take an appeal limited to the question of such grievance, within twenty days from date of refusal or grant, to the court of quarter sessions of the county in which the premises applied for is located * * *.' Plainly, the provision limits applicants ' appeals to the refusal of the Board to issue licenses to them and allows only churches, hospitals, charities and public playgrounds

[ 173 Pa. Super. Page 431]

    to appeal from the granting of licenses, and then only upon the ground that the licensed place is within three hundred feet of appellants' premises. Zermani's appeal from the granting of the Cox license should have been dismissed by the court below. It is not entitled to consideration here.

II. Referring to the appeals of Zermani and Leputa to the refusal of their separate applications, we observe that some averments in their appeal petitions attacked the grant of the Cox license. Of course, since they have no standing to appeal from the granting of that license, they cannot indirectly accomplish that which they cannot do directly. They cannot collaterally attack the action of the Board.

III. Recently this Court has said: 'The exercise of administrative discretion under the Liquor Code is always subject to judicial review.' Burrell I.B.P.O.E. of W. 737, Liquor License Case, 172 Pa. Super. 346, 348, 94 A.2d 110, 111. See also Hotckiss Liquor License Case, 169 Pa. Super. 506, 83 A.2d 398. However, as pointed out in the Burrell case, 172 Pa. Super. page 350, 94 A.2d at page 111, quoting from Mielcuszny v. Rosol, 317 Pa. 91, 93, 176 A. 236, 'An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused'. This rule requires a party who questions the action of the Board to convince the reviewing court, whether lower or appellate, that the evidence before the court discloses the tokens of abused discretion.

The record before us does not support such a conclusion. The testimony taken at the separate hearings of the seven applicants has not been printed, and the court ...


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