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CARVER HOUSE v. LIQUOR CONTROL BOARD (09/23/71)

decided: September 23, 1971.

THE CARVER HOUSE, INC.
v.
LIQUOR CONTROL BOARD



Appeal from the Order of the Court of Common Pleas of Philadelphia County, No. 1855 July Term, 1969, in case of In the Matter of Revocation of Restaurant Liquor License No. R-4989 Issued to The Carver House, Inc.

COUNSEL

Abraham J. Levinson, for appellant.

Albert B. Miller, Special Assistant Attorney General, with him Thomas J. Shannon, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellee.

Judges Crumlish, Jr., Manderino and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 3 Pa. Commw. Page 454]

This is an appeal by Carver House, Inc., a licensee of the Pennsylvania Liquor Control Board from an order of the Common Pleas Court of Philadelphia County revoking appellant's restaurant liquor license. Carver House contends that the penalty imposed by the Liquor Control Board and affirmed by the court below was excessive. We find this contention to be without merit.

On March 29, 1967, the Board issued a citation to show cause why appellant's restaurant liquor license should not be revoked, alleging that appellant's employee had sold narcotics in the licensed premises on two occasions. After hearing, the Board issued an Opinion and Order revoking appellant's license.

On August 16, 1967, appellant filed an appeal from this order to the Court of Quarter Sessions of Philadelphia County. Judge Raymond Pace Alexander heard the appeal on the basis of testimony taken before the Board. The appeal was dismissed on January 5, 1968 because the appellant's counsel had failed to file a brief within the time allowed by the court. After an explanation of the circumstances which led to failure to file the brief, the dismissal order was vacated on January 12, 1968 and leave was granted to counsel to file a brief.

[ 3 Pa. Commw. Page 455]

On December 12, 1968, Judge Alexander sustained the appeal and remanded the matter to the Board for reconsideration in accordance with his opinion. The opinion of Judge Alexander noted that in other cases involving very similar circumstances, a suspension penalty, and not a revocation penalty, had been imposed.

The Board did not then appeal this order nor did it petition for reconsideration. Instead, on May 22, 1969, the Board orally requested reconsideration of the matter and while that request was pending, it filed a new opinion and order on June 26, 1969, again revoking appellant's license. This order was appealed by Carver House, Inc. On February 24, 1971, Judge Alexander filed an opinion and order dismissing the appeal and affirming the Board's order of June 26, 1969.

The order of Judge Alexander dismissing the licensee's appeal is the subject of the appeal now before us.

Appellant advances three arguments in this appeal: (1) that the court below was without the authority to affirm the second opinion of the Board, Clarendon V.F.W. Liquor License Case, 167 Pa. Super. 44, 75 A.2d 171 (1950); (2) that the Board was bound by the lower court's initial order to abate the revocation penalty; and (3) that for the ...


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