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COMMONWEALTH v. M.S.G. (12/08/72)

decided: December 8, 1972.

COMMONWEALTH
v.
M.S.G., INC.



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal of Liquor License Suspension by the M.S.G., Inc., No. S.A. 834 of 1971.

COUNSEL

Alexander J. Jaffurs, Assistant Attorney General, with him J. Leonard Langan, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellant.

Anthony V. DeCello, with him DeCello, Bua & Manifesto, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 7 Pa. Commw. Page 541]

This is an appeal filed by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Allegheny County, dated April 17, 1972, affirming, in part, an order of the Board suspending the liquor license of M.S.G., Inc. (licensee) for a violation of Section 493(1) of the Pennsylvania Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47

[ 7 Pa. Commw. Page 542]

P.S. § 4-493(1). The order of court, however, modified the suspension from ten days to two days. The Board has appealed from the order of the court below contending that the lower court improperly reduced the suspension period, and thereby committed an error of law.

After a period of surveillance, agents of the Board, together with police of the City of Pittsburgh, at about 11 P.M. on July 15, 1971, conducted what is known as "an open inspection," whereby an examination is made of identification papers of patrons at a licensee's establishment. At the time of the inspection of this licensee's bar there were between forty and fifty patrons present. The inspection disclosed the presence of one minor girl, age eighteen, who had purchased a glass of apple wine. The licensee was cited. A hearing was held before the Board, after which on November 5, 1971, it issued its adjudication wherein it made the following single finding of fact: "The licensee, by its servants, agents or employees sold, furnished and/or gave or permitted such sale, furnishing and/or giving of liquor and/or malt or brewed beverages to a minor, on July 15, 1971." The Board concluded that the licensee had violated the law and the regulations of the Board, and therefore issued a suspension for a period of ten days.

The licensee appealed to the Court of Common Pleas of Allegheny County where a hearing de novo was held. The court below issued its opinion and order wherein it determined from additional testimony, not developed at the hearing before the Board, that the suspension issued by the Board should be modified from ten days to two days. The Board thereafter appealed to this Court.

The court below quite properly held a de novo hearing. See 47 P.S. § 4-464. The Liquor Code gives specific direction to the court of common pleas in appeals

[ 7 Pa. Commw. Page 543]

    of this nature, wherein at Section 471 of the Code, 47 P.S. § 4-471, it is stated: "Upon appeal, the court so appealed to shall, in the exercise of its discretion, sustain, reject, alter or modify the findings, conclusions and penalties of the board, based ...


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