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NOONDAY CLUB DELAWARE COUNTY (09/15/67)

decided: September 15, 1967.

NOONDAY CLUB OF DELAWARE COUNTY, INC. LIQUOR LICENSE CASE


Appeals from orders of Court of Quarter Sessions of Delaware County, March T., 1966, Miscellaneous Docket No. A-28, in re revocation of catering club liquor license No. CC-5219 issued to Noonday Club of Delaware County, Inc.

COUNSEL

Angelo A. DiPasqua, with him Caine & DiPasqua, for appellant.

James J. Phelan, Jr., Special Assistant Attorney General, with him I. Harry Checchio, Special Assistant Attorney General, Thomas J. Shannon, Assistant Attorney General, and William C. Sennett, Attorney General, for Pennsylvania Liquor Control Board, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J.

Author: Watkins

[ 210 Pa. Super. Page 402]

These are appeals from the orders of the Court of Quarter Sessions of Delaware County, affirming the decisions of the Pennsylvania Liquor Control Board in revoking the catering club license of the appellant, Noonday Club.

The Noonday Club is a nonprofit corporation formed in 1949 as an eating club. Its members consist of approximately 600 to 700 members who are prominent business and professional men in Eastern Delaware County. The violations in these appeals are the first ever charged against the club.

The board issued two separate citations and both were heard together and the following charges were sustained. Citation No. 1354: "(1) The licensed organization, by its servants, agents or employes sold, furnished and/or gave alcoholic beverages between the hours of three o'clock ante meridian and seven o'clock ante meridian, on June 6, 7, 13 and 14, 1964. (2) The licensed organization, by its servants, agents or employes sold alcoholic beverages on the licensed premises to non-members without prior arrangements for such services, on June 6 and 13, 1964. (3) The licensed organization, by its servants, agents or employes sold alcoholic beverages on the licensed premises to non-members, on the following Sundays June 7 and 14, 1964. (4) The licensed organization, by its servants, agents or employes refilled State Store liquor bottles on June 26, 1964."

Citation No. 1856: "(1) the licensed organization was not a bona fide club, operated for the mutual benefit of the entire membership, in that it was operated by and for the benefit of Anthony Kostick. (2) The licensed

[ 210 Pa. Super. Page 403]

    organization employed persons also employed by another licensee, on divers occasions between November 1, 1963 and June 27, 1964. (3) The licensed organization, by its servants, agents or employes failed within thirty (30) days after any change was made in its officers, to report such change in writing to the Board."

The board then issued separate orders in each citation revoking the catering license of the club. We will treat both citations, which grew out of the same audit and investigation, and the violations found in both as the basis of the revocation, as common sense dictates there can be only one revocation. The court below, after a hearing de novo, sustained the findings of the board with the exception of the finding of what is commonly called a "one man" club. The court below found that the record demonstrates that the club was not operated for the benefit of Anthony Kostick to the exclusion of the club membership, as the court below found, "The record, in our opinion, demonstrates that the Club functions as a Club."

The court below said: "The Superior Court has consistently held that the appropriate penalty in such a case is for the Board and not for the Court. Unless there is a material change in the findings, the Court has no right to substitute its judgment for that of the Board." This is a correct statement of the law. Ashlar Club Liquor License Case, 203 Pa. Superior Ct. 502, 504, 201 A.2d 298 (1964). But in the instant case there is a material change in the ...


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