Appeal, No. 128, March T., 1956, from decision of Superior Court, April T., 1955, No. 169, affirming order of County Court of Allegheny County, 1955, No. C-343, in re: appeal of Louis Obradovich, from decision of Pennsylvania Liquor Control Board. Order reversed. Same case in Superior Court: 180 Pa. Superior Ct. 383. Appeal by applicant from decision of Pennsylvania Liquor Control Board refusing transfer of liquor license. Before KAUFMAN, J. Order entered dismissing appeal; exceptions to order dismissed and final order entered, before LENCHER, P.J., BROWN and KAUFMAN, JJ., opinion by KAUFMAN, J. Applicant appealed to the Superior Court, which affirmed the order of the court below. Appeal by applicant to Supreme Court allowed.
Roslyn M. Litman, with him S. David Litman, and Litman & Litman, for appellant.
Horace A. Segelbaum, Deputy Attorney General, with him Herbert B. Cohen, Attorney General, for Pennsylvania Liquor Control Board, appellee.
Abe R. Cohen, with him Charles E. Hawkins and Crone and Cohen, for protestants, appellees.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Appellant, Louis Obradovich, applied to the Pennsylvania Liquor Control Board for the transfer to him at 401 Hastings Street, Pittsburgh, of the restaurant liquor license owned by August J. and Mabel E. Anderson for premises 136 South 21st Street in that city. Persons residing in the vicinity of the Hastings Street property protested on the ground that the area was predominantly residential even though zoned commercial.
A hearing was held by the Board which found as a fact that the applicant was a reputable person and that the establishment proposed to be licensed met the requirements prescribed by the law, but the Board nevertheless refused the application and its action was sustained by the County Court of Allegheny County. That court also, on a hearing de novo, found that the applicant was a reputable person and that the establishment met the legal requirements of the Liquor Code, but it was of opinion that the objections of the neighbors were entitled to consideration, that the transfer of the license would threaten the quiet character of the neighborhood, and that the restaurant in its new location would be passed by children attending school (the school itself was more than 300 feet away), and this would have derogatory effects on them. Obradovich appealed to the Superior Court, which affirmed the order of the County Court (180 Pa. Superior Ct. 383, 119 A.2d 839), three judges dissenting. We granted appellant's petition for the allowance of an appeal to this court.
Because, as will appear, of our construction of the applicable provisions of the Liquor Code of April 12, 1951, P.L. 90, we need decide only the principal question here raised, namely, whether, if an applicant for the transfer of a liquor license is of good repute, if the premises applied for and the restaurant business to be conducted therein meet the requirements of the Code, if all the other requirements of the Code are complied with, and if the premises are not within the 300 foot prohibition of a church, hospital, school, etc. (all of which facts are admitted in this case), has the Liquor Control Board a discretion to refuse the transfer because of remonstrances of neighbors or other considerations?
In the case of the original issuance of a liquor license to a restaurant the Board undoubtedly has no such discretion. Section 404 of the Code provide that "Upon receipt of the application, the proper fees and bond, and upon being satisfied of the truth of the statements in the application that the applicant is the only person in any manner pecuniarily interested in the business so asked to be licensed and that no other person will be in any manner pecuniarily interested therein during the continuance of the license, except as hereinafter permitted, and that the applicant is a person of good repute, that the premises applied for meet all the requirements of this act and the regulations of the board, that the applicant seeks a license for a hotel, restaurant or club, as defined in this act, and that the issuance of such license is not prohibited by any of the provisions of this act, the board shall, in the case of a hotel or restaurant, grant and issue to the applicant a liquor license, and in the case of a club may, in its discretion, issue or refuse a license: Provided, however, That in the case of any new license or the transfer of any license to a new location the board may, in its discretion, grant or refuse such new license or transfer if such place proposed to be licensed is within three hundred feet of any church, hospital, charitable institution, school, or public playground, or if such new license or transfer is applied for a place where the principal business is the sale of ...