Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Commonwealth v. Lousil, Inc., No. 1894, October Term, 1970.
Arthur S. Lorch, for appellant.
Alexander J. Jaffurs, Assistant Attorney General, with him Albert B. Miller, Special Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellee.
James M. Penny, Jr., Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Levy Anderson, City Solicitor, for Intervenor.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Dissenting Opinion by Judge Mencer. Judge Blatt joins in this dissent.
Once again we are urged, for unquestionably sound reasons of community betterment, to strain the construction of an Act of the General Assembly and to ignore a holding of our Supreme Court; and to do so, furthermore, with reference to a matter readily subject to amelioration by the Legislature, if that be its will. It is not within the authority of this or any court to rewrite the statutory law of the Commonwealth definitively construed by the Supreme Court, however urgent the cause or dim the hope for legislative attention. Even if such authority were conferred upon us, we would hesitate to exercise it, as we are here urged to do, by placing in jeopardy the future transferability of every hotel and restaurant liquor license in the State.
Jochs, Inc., is the holder of a restaurant liquor license for premises 4060 Market Street, Philadelphia, which it desires to transfer to Lousil, Inc. The premises, which has been a licensed establishment since the repeal of prohibition, meets all of the physical requirements of the Liquor Code and regulations of the Liquor Control Board and the transferee is fully qualified to hold a license. However, there is now a church and a school within 300 feet of 4060 Market Street. Further, the Liquor Control Board after a hearing at which city councilmen, school officials, police officers, leaders of community and civic groups, representatives of neighborhood churches, local businessmen and, notably a
State Senator and a State Representative, appeared in opposition to the transfer, found that the ". . . granting of this license will adversely affect the welfare, peace, health and morals of the neighborhood within a radius of 500'." The Board refused the transfer and the Court of Common Pleas, again after hearing, affirmed.
The Liquor Control Board and the City of Philadelphia, which has intervened, contend that the Board has discretion to deny the transfer of this liquor license from one corporation to another corporation because the premises in question is now within 300 feet of a church and a school and, further, that it is required to refuse the transfer because it is of the opinion the continued presence of a licensed operation at this location would adversely affect the welfare, health and morals of the neighborhood within a radius of 500 feet. The Board adheres to this position although it admits that the principals of the proposed transferee corporation might legally have achieved a transfer by simply purchasing the capital stock of the licensee.
Prior to its amendment in 1959, as hereinafter set out, Section 404 of Article IV of the Liquor Code, Act of April 12, 1951, P.L. 90, 47 P.S. § 4-404, read pertinently as follows: "Upon receipt of the application . . . and upon being satisfied . . . that applicant is a person of good repute, that the premises applied for meet all the requirements of this act and the regulations of the board, that the applicant seek a license for a hotel, restaurant or club, as defined in this act, and that the issuance of such license is not prohibited by any of the provisions of this act, the board shall, in the case of a hotel or restaurant, grant and issue to the applicant a liquor license, and in the case of a club may, in ...