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COMMONWEALTH v. BACKA (09/19/73)

decided: September 19, 1973.

COMMONWEALTH, APPELLANT,
v.
BACKA



Appeals from order of Court of Common Pleas, Criminal Division, of Allegheny County, Nov. T., 1971, Nos. 7191 and 7192, in case of Commonwealth of Pennsylvania v. John P. Backa and Daniel F. Backa; Commonwealth of Pennsylvania v. David M. Alton and John P. Backa.

COUNSEL

Louis R. Paulick, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellant.

Carl Max Janavitz, with him Joseph G. Kanfoush, and Janavitz, Janavitz & Kanfoush, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Cercone, J.

Author: Cercone

[ 225 Pa. Super. Page 225]

The defendants, David Alton, John Backa and Daniel Backa were indicted and stood trial on a charge that they did "expose and keep for sale and offer for sale and did sell for consumption on the premises where sold, beer, not then and there being holder of a valid license in violation of Section 492, Subsection 2 of the Liquor Code". The uncontradicted facts appearing of record, as stated by the lower court in its opinion, are as follows: Officer Donald Kidd, an enforcement officer with the Pennsylvania Liquor Control Board, testified that at approximately 9:15 p.m. on July 11, 1971, he arrived at the premises known as the Alpine Ice Chalet located in Swissvale. He noticed a sign on the outside of the premises stating "Swimming, Dancing and Free Beer, $3.00". As he approached the entrance he was met by John Backa, who collected a

[ 225 Pa. Super. Page 226]

$3.00 admission fee. The officer then entered the premises and noted that there were approximately 150 to 200 patrons there. Daniel Backa was behind a make-shift bar and was dispensing plastic cups of beer. A band was playing and approximately 50 people were dancing. It was a rather cold night and only 5 people were swimming. Approximately one-half of the remainder of the patrons had beer cups in their hands.

On July 18, 1971, Officer Kidd returned to the same premises accompanied by Officers Falta and Ehenspear. As they approached they again saw the same sign posted. The officer paid $3.00 to John Backa and entered. This time the bar was being tended by David Alton. Approximately one-third of the patrons were dancing and about twice that many were holding beer cups. At approximately 10:00 p.m. a raid was conducted and John Backa and David Alton were arrested and the beer confiscated. Daniel Backa was arrested later. After being informed of his rights, John Backa stated that they did not possess a license to sell beer. Also implicit in the record and standing uncontested is the fact that the activities engaged in by the defendant did not constitute an isolated social event but represented a business activity engaged in with regularity.

It was the opinion of the court below that these facts did not sustain a finding of sale of the beer for a consideration. We cannot agree with this conclusion. It is our opinion and holding that there was a sale in violation of Section 492, Subsection 2 of the Pennsylvania Liquor Code of April 12, 1951, P. L. 90, Article 4, which provides: "it shall be unlawful for any person to sell to another for consumption upon the premises where sold or to permit another to consume upon the premises where sold, any malt or brewed beverages, unless such a person holds a valid retail dispenser's license or a valid liquor license issued by the board authorizing

[ 225 Pa. Super. Page 227]

    the sale of malt or brewed beverages for consumption upon such premises."

The trial judge in reaching the conclusion that there was no sale laid emphasis on and gave great weight to the fact that no specific amount was stated to be a consideration for the beer, the court's opinion including statements such as "Officer Kidd admitted that once he was inside the premises he noticed no monetary consideration being exacted for the beer. At no time did he observe money passing between people obtaining the beer and the bartender . . . there is no evidence of such a sale to anyone on the premises for a specific consideration . . . nowhere in the testimony has the Commonwealth shown that a specific consideration was exacted for ...


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