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JACK'S DELICATESSEN (03/17/64)

March 17, 1964

JACK'S DELICATESSEN, INC. LIQUOR LICENSE CASE.


Appeal, No. 295, Oct. T., 1963, from order of Court of Quarter Sessions of Philadelphia County, June T., 1963, No. 1362, in re transfer of retail dispenser eating place malt beverage license for Jack's Delicatessen, Inc. Order reversed.

COUNSEL

J. Leonard Langan, Assistant Attorney General, with him I. Harry Checchio, Special Assistant Attorney General, Thomas J. Shannon, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Pennsylvania Liquor Control Board, appellant.

David P. Trulli, which him Bernstein & Gembala, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 202 Pa. Super. Page 482]

OPINION BY WRIGHT, J.

On November 29, 1962, Jack's Delicatessen, Inc., filed with the Pennsylvania Liquor Control Board an application for the transfer of a retail dispenser's eating

[ 202 Pa. Super. Page 483]

    place license to premises at No. 12319 Academy Road in the City of Philadelphia. There was a hearing before the Board's examiner on March 19, 1963. After reviewing the testimony, the Board made, inter alia, the following finding of fact: "4. The premises proposed to be licensed are within 300 feet of the property occupied by the Shallcross Residential School, and within 200 feet of another licensed place". On May 20, 1963, an order was entered by the Board refusing to approve the transfer. Upon appeal to the Court of Quarter Sessions, there was a hearing de novo an June 27, 1963, following which an order was entered reversing the Board and directing the transfer. This appeal by the Board followed.

The record discloses that the Shallcross Residential School is located at Byberry and Woodhaven Roads, and is a part of the Philadelphia school system. Its property line extends to within fifty feet of No. 12319 a quarter of a mile distant. Shallcross proximately a quarter of a mile distant. Shallcross Residential School is a minimum type security institution for emotionally disturbed children. Part of the rehabilitation of the children at the school is learning how to farm, and the land of the school is used for farm purposes. The record also discloses that Parkwood, Inc., holds a restaurant liquor license for premises at No. 12339 Academy Road, which is one hundred seventeen feet distant from No. 12319 Academy Road.

The court below took the position that, in determining that the Shallcross Residential School was within a distance of 300 feet, the Board "was guilty of misapplying the law and an abuse of discretion". The opinion below states that the school was "realistically far beyond the 300 foot limitation, and it did not subserve the purpose of the Act to invoke that restriction in this case". It is our view that, in so concluding, the lower court clearly exceeded its authority.

[ 202 Pa. Super. Page 484]

The law is firmly established that the court of quarter sessions may not substitute its discretion for that of the Board: Booker Hotel Corp. Liquor License Case, 175 Pa. Superior Ct. 89, 103 A.2d 486; Her-Bell, Inc., Liquor License Case, 176 Pa. Superior Ct. 206, 107 A.2d 572. There must be a clear abuse of administrative discretion before the court of quarter sessions is authorized to set aside the Board's action: 425-429, Inc., Liquor License Case, 179 Pa. Superior Ct. 235, 116 A.2d 79. Administrative discretion is lodged exclusively with the Board: Teti Liquor License ...


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