Appeal from the Order of the Court of Common Pleas of Delaware County, in case of In Re: Appeal of Bonner's Cafe, Inc. from Order of Pennsylvania Liquor Control Board, Misc. Q.S. Docket A-31, P-143, September 1970.
John J. McCreesh, III, with him McCreesh & McCreesh, for appellant.
Alexander J. Jaffurs, Chief Counsel, with him J. Leonard Langan, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellee.
Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Rogers. Opinion by Judge Crumlish, Jr. (Concurring in Part and Dissenting in Part).
This appeal was taken by Bonner's Cafe, Inc. from an order of the Court of Common Pleas of Delaware County sustaining the Pennsylvania Liquor Control Board's imposition of a fine for violation of The Liquor Code.
The Board found that the appellant, by its servants, agents or employes, sold liquor and beer on Sunday, in violation of Section 493(16) of The Liquor Code, Act of 1951, April 12, P.L. 90, 47 P.S. 4-493(16).
The hearing de novo was conducted by Judge Edwin E. Lippincott, II. The facts are not in dispute. Two enforcement agents of the Liquor Control Board purchased liquor and beer at appellant's establishment on Sunday. Eugene J. Bonner, joint owner with his wife of the stock of appellant corporation, was not on the premises and the sales, according to his testimony, were made by a person hired by him only to clean the premises. Judge Lippincott's opinion contains the following significant paragraphs:
"At the hearing de novo the testimony as to Sunday sales was clear, precise and not denied by licensee. Two enforcement officers testified (one by stipulation) that they were admitted to the premises on Sunday afternoon, April 5, 1970.
"The bar was in full operation. Each ordered and paid for two drinks, together with three quarts of beer to take out. They also observed four other patrons seated at the bar purchasing and consuming alcoholic beverages. All sales were rung up on the cash register.
"There was also substantial evidence that beverages had been consumed by patrons on Sunday, March 22, 1970, but since the licensee testified that the apparent customers on that date were friends or relatives cleaning up the establishment and the alcoholic beverages were not paid for, the Board apparently made no finding with respect to this Sunday, although the court feels that a violation then was also proved.
"We sustained the finding of the Liquor Control Board and indicated that, although we might be inclined to impose a lesser fine, we were without discretion, having made the same findings as the Board: Yugovich Liquor License Case, 217 Pa. Super. 353, [272 A.2d 510] (1970). The fine of $500 cannot be ...