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TAYLOR ET AL. v. WEINSTEIN (03/24/66)

decided: March 24, 1966.

TAYLOR ET AL., APPELLANTS,
v.
WEINSTEIN



Appeal from order of Court of Quarter Sessions of the Peace of Philadelphia County, March T., 1965, No. 1451, in case of Ellen Taylor et al. v. Jack Weinstein.

COUNSEL

Ragan A. Henry, with him Myron A. Hyman, and Folz, Bard, Kamsler, Goodis & Greenfield, for appellants.

Robert M. Borden, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, and Jacobs, JJ. (Flood and Hoffman, JJ., absent). Opinion by Wright, J. Hoffman, J., took no part in the consideration or decision of this case. Dissenting Opinion by Watkins, J.

Author: Wright

[ 207 Pa. Super. Page 253]

We are here concerned with an appeal from an order of the Court of Quarter Sessions of Philadelphia County, entered June 10, 1965, dismissing an appeal from the action of the Pennsylvania Liquor Control Board in belatedly approving the transfer of a liquor license.

On September 25, 1963, Jack Weinstein filed with the Board an application for approval of the transfer of a restaurant liquor license to premises at 2847 North Twenty-Sixth Street in the City of Philadelphia. Appellants are residents of the neighborhood at Twenty-Sixth and Cambria Streets, and represent local civic and religious organizations in that area. They have been vigorously protesting the proposed transfer. A hearing took place before an Examiner of the Board on January 15, 1964. On the basis of the testimony presented at that hearing, the Board concluded that the protests should be sustained. On February 14, 1964, an order was entered that the transfer "be and it is hereby refused".

On March 4, 1964, at No. 1407 March Term 1964, the applicant for the transfer appealed to the Court of Quarter Sessions of Philadelphia County. On December 21, 1964, counsel for the applicant filed the following

[ 207 Pa. Super. Page 254]

    request: "Will you kindly withdraw the appeal of petitioner in the above-captioned matter, and mark the case ended and discontinued". On December 31, 1964, Judge Weinrott entered an order to that effect.

On a subsequent date, not disclosed by the record, a petition for reconsideration was presented to the Board. Appellants received no notice of the filing of this petition. Without taking additional testimony or holding further hearings, the Board entered an order on February 9, 1965, approving the transfer. If there were other contacts involving the Board and the applicant, neither has chosen to make the same a matter of record.

On March 23, 1965, the protestants appealed to the court of quarter sessions. A hearing was scheduled for June 10, 1965, at which time counsel for the applicant moved to strike the appeal as untimely. This motion was overruled and the appeal was allowed nunc pro tunc. The appeal was then dismissed on the ground that there was no abuse of discretion on the part of the Board. As previously indicated, the protestants have now appealed to this court. We find it unnecessary to pass upon all of the contentions which appellants have advanced. The order of the court below must be reversed for two reasons.

(1) The failure to give notice to appellants of the petition for reconsideration was a fatal defect. Administrative discretion must not be permitted to become administrative tyranny: Hotchkiss Liquor License Case, 169 Pa. Superior Ct. 506, 83 A.2d 398. Administrative bodies are bound by the due process provisions of constitutional law and by fundamental principles of fairness: West Penn Power Co. v. Pa. P. U. C., 174 Pa. Superior Ct. 123, 100 A.2d 110. In the words of President Judge Rhodes in the ...


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