Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Pittsburgh International Development Corporation, a Pennsylvania Corporation v. Pennsylvania Liquor Control Board, No. S.A. 296 of 1971.
Alexander J. Jaffurs, Assistant Attorney General, with him Albert B. Miller, Special Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellant.
J. Craig Kuhn, with him Kuhn, Engle and Blair, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer. President Judge Bowman joins in this dissent.
This is an appeal from an order of the Court of Common Pleas of Allegheny County directing the Liquor Control Board (Board) to consider an application for transfer of a retail dispenser's beer license. The Board refused to transfer the license holding that it ceased to exist after the term of one year safekeeping period with the Board had expired.
The original licensee, Joseph Vogel, obtained the transfer of a restaurant liquor license to his premises
on June 3, 1969 and on the same date surrendered his retail dispenser's beer license to the Board in accordance with Board Regulation 115, Section 115.13. Regulation 115.13 provides: "Surrender of Licenses for Cancellation or Transfer. No individual, partnership, association, or corporation, shall hold more than one retail license of the same type to cover the same establishment. . . . In the event an application for transfer of an existing retail license of a different type to the premises already licensed is approved, the license which is then in effect in the name of the application for that establishment must be surrendered to the Board before the transferred license is actually issued in the applicant's name. In such case, the license which has been surrendered to the Board or any renewal thereof in possession of the Board shall be held available for the benefit of the licensee solely for transfer for a period which shall not exceed one year from the date of surrender. In the event that a transfer of the license is not effected within the said one year period, the license shall automatically be cancelled and there shall be no refund of the license fee or any portion thereof, provided, however, that any transfer application pending at the expiration of the said one year period may be processed to conclusion."
On May 28, 1970, an application was filed with the Board to transfer the retail dispenser's license surrendered by Vogel to Pittsburgh International Development Corporation, the present appellee, for use at 7215 McKnight Road, Ross Township. Because of the inability to obtain a lease at those premises, appellee attempted to amend the transfer application and change the address from 7215 McKnight Road to 4814 McKnight Road.*fn1 Appellee was told by a Board enforcement
officer that it would be advisable for him to withdraw the original application and file a new one.
Appellee did withdraw its application on September 3, 1970 and subsequently submitted a re-application for a transfer of 4814 McKnight Road on December 9, 1970, after having finalized the lease for those premises. The delay between September 3 and December 9 was caused by appellee's decision not to ...