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GISMONDI LIQUOR LICENSE CASE. (12/12/62)

December 12, 1962

GISMONDI LIQUOR LICENSE CASE.


Appeal, No. 178, April T., 1962, from order of Court of Quarter Sessions of Fayette County, Sept. T., 1961, No. 63, in re application of Michele Gismondi and Michelina Gismondi for transfer of restaurant liquor license. Order reversed.

COUNSEL

Ira B. Coldren, Jr., with him Coldren & Adams, for appellants.

David E. Cohen, with him Hugh J. Lane, for appellees.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Wright

[ 199 Pa. Super. Page 620]

OPINION BY WRIGHT, J.

This appeal involves the refusal of the Pennsylvania Liquor Control Board to approve the transfer of a restaurant liquor license to premises at 303 Morgantown Street in the City of Uniontown. The action of the Board was reversed by the Court of Quarter Sessions of Fayette County, and the protestants have appealed to this court.

This appeal has been thoroughly briefed and ably argued on both sides. The relevant statutory provisions are contained in Sections 404 and 464 of the Liquor Code.*fn1 Section 404 (47 P.S. 4-404) reads in pertinent part as follows: "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 which is within two hundred feet of any other premises which is licensed by the board, or if such new license or transfer is applied for a place where the principal business is the sale of liquid fuels

[ 199 Pa. Super. Page 621]

    and oil: And provided further, That the board shall refuse any application for a new license or the transfer of any license to a new location if, in the board's opinion, such new license or transfer would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of five hundred feet of the place proposed to be licensed". Section 464 (47 P.S. 4-464) reads in pertinent part as follows: "Any applicant who has appeared before the board or any agent thereof at any hearing, as above provided, who is aggrieved by the refusal of the board to issue any such license or to renew or transfer any such license 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 or the transfer 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 or the county court of Allegheny County ... The court shall bear the application de novo on questions of fact, administrative discretion and such other matters as are involved, at such time as it shall fix, of which notice shall be given to the board. The court shall either sustain or over-rule the action of the board and either order or deny the issuance of a new license or the renewal or transfer of the license to the applicant. The parties to the proceeding may, within thirty days from the filing of the order or decree of said court, appeal therefrom to the Superior Court".

The first question for our determination is whether protestants have the right to appeal. They are "inhabitants of the neighborhood within a radius of five hundred feet of the place proposed to be licensed". The record discloses that, upon learning of the proposed

[ 199 Pa. Super. Page 622]

    transfer, appellants filed written objections with the Board. On September 26, 1961, there was a hearing on the application before the Board's examiner at which time appellants appeared by counsel, submitted the testimony of two witnesses, and read into the record the names of sixteen other protestants who were present and prepared to give similar testimony. On October 5, 1961, the Board filed an order refusing to permit the proposed transfer. The applicants then appealed to the Court of Quarter Sessions. At the outset of the initial hearing before Judge FEIGUS on November 10, 1961, counsel for the protestants entered his appearance. Before cross-examining the Board's first witness, counsel for the protestants offered to read into the record the names and addresses of the persons whom he represented. The hearing judge ruled "that any protestant who desires should appear in person and protest ... And we will permit Mr. Coldren to appear on behalf of the protestants". During the course of the several hearings, some twenty of the protestants appeared in person and gave testimony in opposition to the proposed transfer. On February ...


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