Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, No. C 1602 of 1968, in re matter of revocation of importing distributor's license No. ID-1197 issued to Pittsburgh Beer Corporation.
Thomas J. Shannon, Assistant Attorney General, with him John W. Pollins, III, Special Assistant Attorney General, and William C. Sennett, Attorney General, for Pennsylvania Liquor Control Board, appellant.
I. Portnoy, with him S. David Litman, and Litman, Litman, Harris & Specter, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.
[ 216 Pa. Super. Page 72]
This is an appeal by the Pennsylvania Liquor Control Board from an order of the Court of Common Pleas of Allegheny County setting aside an Order of the Board imposing a ten-day suspension of license against appellee, the Pittsburgh Beer Corporation, a licensed importing distributor, and substituting therefor a two hundred dollar fine. The license was suspended after hearing by the Board for the following reasons:
1. The licensee, by its servants, agents or employees sold malt or brewed beverages on credit on May 1, 9, 17, 22, 26, June 2, 8, 1967.
2. The licensee, by its servants, agents or employees, failed to keep records on the licensed premises.
Upon appeal by the licensee the lower court heard the matter de novo, reversed the Board's finding that the licensee failed to keep records on the licensed premises, modified the Board's finding of credit sales on seven different occasions to a finding of one sale on June 8, 1967, and changed the Board's ten-day suspension of license penalty to a two hundred dollar fine.
The complicating factor in this case is that according to even the modified findings of the lower court the licensee is guilty of a third violation of the Liquor Code within a four-year period. The Board contends that under the provisions of the Liquor Code a revocation or suspension of license penalty is therefore mandatory and that consequently the ten-day suspension of license penalty imposed on the licensee by the Board cannot be changed or reduced to a fine by the lower
[ 216 Pa. Super. Page 73]
court. The licensee on the other hand contends that only the Board and not the lower court is bound by the mandatory provision of the Code relating to revocation or suspension penalty in cases involving three or more violations within a four-year period.
Section 471 of the Act of April 12, 1951, P. L. 90, as amended, 47 P.S. 4-471, known as the ...