Appeal, No. 253, Oct. T., 1960, from order of Court of Quarter Sessions of Philadelphia County, March T., 1960, No. 1216, in matter of revocation of club liquor license No. C-3715 issued to East End Social Club of Frankford. Order reversed; reargument refused December 1, 1960.
Russell c. Wismer, Special Assistant Attorney General, with him George G. Lindsay and Horace A. Segelbaum, Assistant Attorneys General, and Anne X. Alpern, Attorney General, for Pennsylvania Liquor Control Board, appellant.
Robert M. Borden, with him Alexander H. Borden, for appellee.
Before Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (rhodes, P.j., absent).
[ 193 Pa. Super. Page 585]
The Pennsylvania Liquor Control Board has appealed from an order of the Court of Quarter Sessions of Philadelphia reversing the board's order of revocation and substituting a suspension of the appellee's club liquor license.
In revoking the appellee's license the board found that "The licensed organization, by its servants, agents or employes sold liquor and/or malt or brewed beverages on the licensed premises to non-members, on April 26, 1959." This was the appellee's sixth violation. On October 31, 1942, it received a ten days suspension for maintaining gambling devices. Since then, its license was suspended in 1945, 1953, 1956 and 1957 for sales to non-members.
The court below found that Officer Alfred Haggerty a non-member "requested and was served two bottles of beer. He put money on the bar, which was taken by the bartender, but there was no evidence that such money was recorded or deposited in the cash register. Haggerty then left the club, and returned shortly thereafter, this time representing his desire to become a member. He was permitted to fill out a membership application and to enter the licensed premises once again. He requested and was served two more bottles of beer; again he put money on the bar, which money was taken by the bartender but as in the previous instance, there was no evidence to indicate such money was recorded or deposited in the cash register."
The court below believed that Haggerty gained admission by "falsely and deceptively telling the doorman that he was looking for a friend inside," and that "Rosenbloom, who was an officer of the club, overheard the conversation and, suspecting that something might be peculiar about Haggerty's admittance, instructed the bartender that if Haggerty attempted to
[ 193 Pa. Super. Page 586]
order any drinks, Haggerty was to be served as guest of Mr. Rosenbloom" and then left the club and did not thereafter return. Speculating on these facts, the court said, "the money which Haggerty left on the counter could very well have been appropriated by the bartender to his own use." The court felt a doubt that the facts established a sale, and found that "if there was it was contrary to the express instructions of the club officer on the scene." It, thereupon, concluded that the penalty imposed by the board was too severe, reversed the revocation, and substituted a sixty day suspension for the board's order.
For the reasons set forth by the late President Judge KELLER in Pacewicz Liquor License Case, 152 Pa. Superior Ct. 123, 127, 128, 31 A.2d 361 (1943), it has long been settled that unless the findings of fact of the court below are different from those of the board, the penalties imposed by the board in the proper exercise of its discretion must stand. Enlisted Men's Club of Trafford Liquor License Case, 166 Pa. Superior Ct. ...