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CARVER HOUSE (09/19/73)

decided: September 19, 1973.

CARVER HOUSE, INC. LIQUOR LICENSE CASE


Appeal from order of Commonwealth Court of Pennsylvania, No. 236 C.D. 1971, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1969, No. 1855, in the matter of: Revocation of Restaurant Liquor License No. R-4989, issued to The Carver House, Inc.

COUNSEL

Abraham J. Levinson, for appellant.

Alexander J. Jaffurs, Assistant Attorney General, with him Albert B. Miller, Special Assistant Attorney General, and J. Shane Creamer, Attorney General, for Liquor Control Board, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Manderino took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice O'Brien joins in this dissenting opinion.

Author: Roberts

[ 454 Pa. Page 39]

On August 3, 1967, the Pennsylvania Liquor Control Board [Board] cited appellant, a restaurant liquor licensee in Philadelphia, for violations of the Liquor Code. An evidentiary hearing was held, at which it was affirmatively established that one of appellant's employees had, on two occasions, sold narcotics on the licensed premises. On the basis of this factual finding, appellant's liquor license was revoked.

Carver House appealed that order to the Philadelphia Court of Common Pleas. Act of April 12, 1951, P.L. 90, art. IV, as amended, 47 P.S. ยง 4-471 (Supp.

[ 454 Pa. Page 401972]

). That court, without making findings at variance with those found by the Board examiner, vacated the Board-imposed revocation on the ground that the penalty was inconsistent with sanctions applied in similar cases. The matter was remanded to the Board "for further consideration in accordance with this opinion."

No appeal was taken, and on June 29, 1969, the Board, without developing additional facts, entered a second order revoking appellant's license. Carver House again appealed to the court of common pleas; however, on this appeal, the court determined that since it was unable to make findings of facts materially at odds with those of the Board, it was without authority to modify the Board's order of revocation. On appeal, the Commonwealth Court affirmed. Carver House, Inc. v. Liquor Control Board, 3 Pa. Commonwealth Ct. 453, 281 A.2d 473 (1971). This Court granted allocatur and we now affirm.

The Commonwealth Court correctly held, in accordance with all prior decisions of this Court and the Superior Court, that the court was without authority to alter a penalty imposed by the Liquor Control Board, where such penalty was obviously within the Board's statutorily conferred powers.

"Under the [Liquor] Code (Act of April 12, 1951, P. L. 90, Art. IV, sec. 471, [as amended] 47 P.S. sec. 4-471 [Supp. 1972]), the court on appeal from a suspension . . . 'shall, in the exercise of its discretion, sustain, reject, alter, or modify the findings, conclusions and penalties of the board, based on the findings of fact and conclusions of law as found by the court.' It is by now well established that on such appeal the lower court must make findings of fact on the material issues different from those as found by the board before the action taken by the board can be reversed or changed. Unless the lower court's change or modification is so grounded, it cannot stand. Appeal of Homestead

[ 454 Pa. Page 41]

Social and Beneficial Society, 169 Pa. Superior Ct. 593, 85 A.2d 265; Turner v. Pennsylvania Liquor Control Board, 161 Pa. Superior Ct. 15, 53 A.2d 849; Enlisted Men's Club of Trafford Liquor License Case, 166 Pa. Superior Ct. 26, 27, 70 A.2d 696." Italian Citizens Nat'l Ass'n of America Liquor License Case, 178 Pa. Superior Ct. 213, 216, 115 A.2d 881, 882 (1955). Here, no different findings of fact on material issues were made by the hearing court. Accordingly, that court was correct in its ruling (as was the Commonwealth Court in affirming) that it was without authority to modify the penalty imposed by the Liquor Control Board. See also Banterla Liquor License Case, 166 Pa. Superior Ct. 544, 72 A.2d 602 (1950); Pacewicz Liquor License Case, 152 Pa. Superior Ct. 123, 31 A.2d 361 (1943).

The interpretation of Section 471 of the Liquor Code, as set out above, has remained constant for over twenty years. In 1960, the ...


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