decided: September 15, 1967.
BELVEDERE LITERARY CLUB LIQUOR LICENSE CASE
Appeal from judgment of Court of Quarter Sessions of Westmoreland County, Jan. T., 1966, No. 30, in the matter of revocation of club liquor license No. C-3889 issued to Belvedere Literary Club of Jeannette.
Donald D. Doerr, Special Assistant Attorney General, with him Floyd R. Warren, Special Assistant Attorney General, Thomas J. Shannon, Assistant Attorney General, and William C. Sennett, Attorney General, for Pennsylvania Liquor Control Board, appellant.
John D. Lyons, Jr., with him Scales and Shaw, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J.
[ 210 Pa. Super. Page 508]
This is an appeal by the Pennsylvania Liquor Control Board from an order of the court below modifying the board's revocation of a liquor license issued to the Belvedere Literary Club of Jeannette.
On July 26, 1965 the board issued a citation against the licensee, charging it with sixteen violations of the Pennsylvania Liquor Code and regulations of the board. On October 21, 1965, the day set for the hearing, the licensee's secretary-treasurer executed and filed a waiver admitting all of the charges and authorizing the board to enter a final order without a hearing.*fn1 The following day, the waiver was authorized by a resolution of the licensee which was also filed with the board. On December 14, 1965 the board found the licensee guilty of eleven violations and revoked its license. Notwithstanding its earlier admission and waiver of hearing, the licensee appealed to the court below.
At the hearing de novo, the board moved for dismissal on the ground that licensee, having admitted the charges and authorized entry of a final order, had waived its right to appeal. This motion was denied
[ 210 Pa. Super. Page 509]
by the court. The waiver was admitted into evidence without objection or denial by the licensee. After hearing testimony by both sides, the court dismissed six of the eleven violations found by the board*fn2 and reduced the penalty to a suspension of ninety days.
Two questions are presented: (1) whether the licensee, by filing a waiver, relinquished its right to appeal the board's decision; (2) whether the lower court abused its discretion by modifying the findings and penalty.
Section 471 of the Pennsylvania Liquor Code, Act of 1951, April 12, P. L. 90, 47 P.S. § 4-471, as amended, provides: "In the event the person whose license was suspended or revoked by the board shall feel aggrieved by the action of the board, he shall have the right to appeal. . . in the same manner as herein provided for appeals from refusals to grant licenses. Upon appeal, the court so appealed to shall, in the exercise of its discretion, sustain, reject, alter or modify the findings, conclusions and penalties of the board, based on the findings of fact and conclusions of law as found by the court." (Emphasis added.)
[ 210 Pa. Super. Page 510]
In other cases where licensees filed similar waivers with the board, a hearing de novo was granted on appeal. See Gay Nineties, Inc. Liquor License Case, 193 Pa. Superior Ct. 384, 165 A.2d 94 (1960); Janiro Page 510} Liquor License Case, 163 Pa. Superior Ct. 398, 62 A.2d 102 (1948). The waiver before us contains no language expressly relinquishing the right of appeal. An agreement not to appeal "should be very clear in its terms, and leave no doubt of the intention of the party to cut himself off from the right of appeal." 4 Am. Jur. 2d, Appeal and Error § 236, at 733 (1962). In light of the statutory language granting the right to a trial de novo on both issues of fact and conclusions of law, this waiver did not foreclose the right of appeal.
However, the licensee's admission of the violations charged constituted substantive evidence at the hearing de novo and should have been so considered. ". . . [I]n the case of a party to the proceeding, a prior statement by him inconsistent with his claim or testimony at trial . . . is . . . admissible as an admission against interest and, as such, constitutes substantive proof of the truth of the matter therein contained." Gougher v. Hansler, 388 Pa. 160, 166, 130 A.2d 150 (1957). The law is clear that the court below may not change or modify a penalty imposed by the board unless it finds a different set of facts and these different findings must concern issues which are material. Maple Liquor License Case, 207 Pa. Superior Ct. 237, 217 A.2d 859 (1966); Italian Citizens National Association of America Liquor License Case, 178 Pa. Superior Ct. 213, 115 A.2d 881 (1955). The court below may not capriciously disregard competent evidence of violations nor may it reduce the penalty imposed by the board because it is considered too severe. Maple Liquor License Case, supra at 239; Homestead Social and Beneficial Society Appeal, 169 Pa. Superior Ct. 593, 84 A.2d 265 (1951).
In the instant case, the trial court apparently gave no weight to the licensee's written admission of all eleven charges and concluded that the penalty imposed
[ 210 Pa. Super. Page 511]
was "too severe." In so doing, the court improperly substituted its discretion for that of the board.
We reiterate the opinion expressed in Appeal of Halprin, 61 Lack. Jur. 45, 47, 48 (1959), involving a similar waiver: "To accept any such repudiation of a prior deliberately executed waiver and admission of a set of facts would open the way to serious fraud, would unduly handicap the Liquor Control Board in the conduct of its functions of policing the trade, and would place unending burdens on the Courts. . . ."
Judgment reversed and order of the board reinstated.