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425-429 (07/21/55)

July 21, 1955

425-429, INC. LIQUOR LICENSE CASE.


Appeal, No. 49, Oct. T., 1955, from order of Court of Quarter Sessions of Philadelphia County, Jan. T., 1954, No. 1081, in re appeal of 425-429, Incorporated. Order reversed. Appeal by applicant from decision of Liquor Control Board refusing transfer of restaurant liquor license. Before SPORKIN, J.

COUNSEL

Henry A. Frye, for appellant.

Stanley M. Greenberg, with him Bernard S. Ochman, for appellees.

Russell C. Wismer, Special Deputy Attorney General, Horace A. Segelbaum, Deputy Attorney General, and Herbert B. Cohen, Attorney General, for Pennsylvania Liquor Control Board, intervenor, submitted a brief.

Before Rhodes, P.j., Hirt, Ross, Wright, Woodside, and Ervin, JJ. (gunther, J., absent).

Author: Ross

[ 179 Pa. Super. Page 237]

OPINION BY ROSS, J.

This is an appeal involving the transfer of a restaurant liquor license to premises located 60 feet from the appellant religious institution.

Early in 1953 the appellee corporation purchased a restaurant liquor license and applied to the Pennsylvania Liquor Control Board for the transfer to premises located at 425-429 Spring Garden Street, Philadelphia. The two principal shareholders of the corporation operate, at this location, a restaurant. They are both men of excellent character and reputation and their restaurant is operated in an exemplary manner. The appellant filed a protest to the transfer and a hearing on the matter was held before an examiner for the Liquor Control Board. The Board on the basis of this testimony refused the transfer, finding: "1. The premises proposed to be licensed are within 300 feet of the following institutions: The Wesley Hall Methodist Home for Transient Men, the Fifth Street Community Center, the Community Christian Mission, the Friends Neighborhood Guild Playground Extension, St. Vladimir's Russian Orthodox Church, the Church of the Advent, Roman Emanuel Baptist Church and the Non-Denominational Church of God."

[ 179 Pa. Super. Page 238]

Appellee then appealed to the Court of Quarter Sessions, which held a complete hearing de novo, made additional findings of fact without changing those as found by the Board concerning the religious institutions, and concluded that the Board had abused its administrative discretion. It thereupon ordered the license transferred to the premises of appellee and this appeal followed.

At the hearing de novo before the lower court there were substantially the same witnesses as had testified before the board, and admittedly the testimony was practically identical in all material respects. The testimony on behalf of the appellee came from 31 witnesses whose major theme concerned the good character of the appellee, and the need for a gracious place to dine and drink. Testimony on behalf of protestant-appellant concerned the nature of its work, the number and types of persons aided, as well as the detrimental effect such transfer would have upon these people and its work.

The function of the court of quarter sessions is delineated by the Liquor Code in section 464. "The Court shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved ..." Act of April 12, 1951, P.L. 90, Art. IV, section 464, 47 PS sec. 4-464. Recently in Her-Bell, Inc. Liquor License Case, 176 Pa. Superior Ct. 206, 107 A.2d 572, at page 209, we cited with approval the language and holding of the Booker Hotel Corporation Liquor License Case, 175 Pa. Superior Ct. 89, 103 A.2d 486 (allocatur refused) at pages 92-93: "It was not for the court below to substitute its discretion on the same facts as found by the Board. On such ...


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