Appeal, No. 302, Oct. T., 1958, from order of Court of Quarter Sessions of Philadelphia County, Dec. T., 1957, No. 1177, Miscellaneous Docket, in case of Clinton Management, Inc. v. Pennsylvania Liquor Control Board. Order affirmed.
Harry W. Steinbrook, with him Blank, Steinberg, Balder & Steinbrook, for appellant.
Russell C. Wismer, Special Assistant Attorney General, with him Horace A. Segelbaum, Assistant Attorney General, and Thomas D. McBride, Attorney General, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Watkins, JJ. (ervin, J., absent).
[ 188 Pa. Super. Page 10]
This case involves the refusal of the Pennsylvania Liquor Control Board to approve the transfer of a hotel liquor license. The action of the Board was sustained by the court below, and the applicant for the transfer has appealed.
Clinton Management, Inc., referred to hereinafter as Clinton, formerly operated and held a hotel liquor license for premises known as the Hotel Clinton at 303-09 South 10th Street in the City of Philadelphia. Said premises were destroyed by fire on February 28, 1952, and the license has since been in the custody of the Pennsylvania Liquor Control Board. Clinton is also the owner and operator of premises known as the King Hotel located at 1029-31 Spruce Street. On December 21, 1956, Clinton filed with the Board an application, apparently the third, for transfer of the license to the King Hotel. At the hearing on July 17, 1957, before the Board's examiner, the transfer was protested by the Jefferson Medical College of Philadelphia, hereinafter referred to as Jefferson, by the Spruce Street Area Improvement Association, and by the Brith Achim Beneficial Association. Testimony of the following witnesses was heard: an enforcement officer of the Board, Jefferson's assistant superintendent, its assistant director of nurses, and a representative of the Brith Achim Beneficial Association. In its opinion and order dated November 27, 1957, the Board refused to approve the transfer on the ground that the premises were located within 300 feet of the Nurses' Home, the Brith Achim Beneficial Association, and the
[ 188 Pa. Super. Page 11]
Priory House. Appellant concedes the necessary inference to be a finding by the Board that these were restrictive institutions under the relevant provision of the Liquor Code.*fn1 Upon appeal to the Court of Quarter Sessions, the testimony before the examiner was made part of the record, and additional testimony was heard from the following witnesses: the executive secretary of the Brith Achim Beneficial Association, a member of the board of directors of the Priory House, and two representatives of the Spruce Street Area Improvement Association. In its opinion and order filed April 24, 1958, the court below found that both the Priory House and the Nurses' Home (but not the Brith Achim Beneficial Association) were restrictive institutions within the meaning of the Liquor Code, and that the Board had not abused its discretion in refusing to approve the transfer.
Appellant's first contention is that there was nothing in the record before the Board to show the existence of a restrictive institution, and therefore the refusal of the application by the Board constituted an abuse of its discretion. Appellant stresses the fact that the only evidence before the Board as to the nature of the Priory House was the brief testimony of the enforcement officer.*fn2 It should perhaps be noted that this witness was not cross-examined, and that appellant offered no contradictory evidence. Additional testimony
[ 188 Pa. Super. Page 12]
as to the exact nature of the Priory House was taken at the hearing de novo before the Court of Quarter Sessions.*fn3 As to the Nurses' Home, the testimony before the Board was in complete detail, and no further testimony was taken in this regard at the hearing de novo. In any event, it is proper for the Court of Quarter Sessions to hear all relevant and competent evidence which the parties desire to present on the issue before it: Weiss Liquor License Case, 187 Pa. Superior Ct. 89, 142 A.2d 385. It is upon the record made at the hearing de novo that the Court of Quarter ...