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WHITE OAK BOROUGH v. KUSIC (01/09/73)

decided: January 9, 1973.

WHITE OAK BOROUGH
v.
KUSIC



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Pennsylvania Liquor Control Board, Commonwealth of Pennsylvania v. Gloria Kusic, No. S.A. 336 of 1972.

COUNSEL

Edward J. Osterman, for appellant.

Charles N. Caputo, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 7 Pa. Commw. Page 281]

This case has arisen out of the same fact situation as did Liquor Control Board v. Kusik, 7 Pa. Commonwealth Ct. 274, 299 A.2d 53 (1973). Gloria Kusic (Kusic) possesses a Restaurant Liquor License which she sought to transfer from McKeesport to a location in White Oak Borough (Borough). The Liquor Control Board (Board) refused Kusic's application to transfer and she appealed to the Court of Common Pleas of Allegheny County. That court reversed the order of the Board and directed that Kusic be permitted to transfer the license. The Borough thereafter filed an appeal with this Court. Kusic has filed a motion to quash the appeal on the basis that a municipality is not included among the aggrieved parties listed in § 464 of

[ 7 Pa. Commw. Page 282]

    the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-464, who may appeal from a decision of the Board.*fn1

The Borough contends that although it is not included in this list of those who may appeal from a decision of the Board, it is given that right under the reasoning used by the Superior Court in Gismondi Liquor License Case, 199 Pa. Superior Ct. 619, 186 A.2d 448 (1962). After a careful consideration of this issue, we find that we cannot agree with the Borough and must quash the appeal.

The Borough participated in this case before the Board as a protestant. It was represented by counsel and presented two witnesses, the mayor and the council president. When Kusic appealed to the lower court, the record discloses no effort by the Borough to intervene or to enter an appearance. Such action would be necessary to establish the Borough as a party below (excluding

[ 7 Pa. Commw. Page 283]

    for the moment the issue of whether the Borough had a right to intervene or appear). Because the Borough was not a party below it had no right to appeal to this Court, and for that reason alone the appeal should be quashed. Alloy Metal Wire Company, Inc., Appeal, 329 Pa. 429, 198 A. 448 (1938).

In any case, however, § 464 precludes the Borough from appealing a decision of the Board. Certainly a municipality may appear before the Board and make known its objections to any application which might affect it, but this is "far different from conceding that by so participating in the proceedings they become parties litigant entitled to an appeal on the merits. . . ." Seitz Liquor License Case, 157 Pa. Superior Ct. 553, 556, 43 A.2d 547, 548 (1945). There is no statutory right of appeal for the Borough ...


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