Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In the Matter of Revocation of Restaurant Liquor License No. R-3986 and Amusement Permit No. AP-15935, issued to Barrone's, Inc., No. 1945 May Term, 1972.
Herbert Brener, with him Meshon and Brener, for appellant.
J. Leonard Langan, Assistant Attorney General, with him Alexander J. Jaffurs, Assistant Attorney General, and Israel Packel, Attorney General, for appellee.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Kramer.
[ 10 Pa. Commw. Page 565]
This is an appeal filed by Barone's, Inc. (Barone) from an order of the Court of Common Pleas of Philadelphia County which in effect reversed an order of the Pennsylvania Liquor Control Board (Board), which had revoked the license of Barone, and substituted a 90-day suspension for the Board's revocation.
On January 10, 1972, the Board issued an amended citation in which it charged three specific violations. After a hearing before the Board, it issued an adjudication (dated May 25, 1972) in which it found Barone to be in violation of only one specified violation committed on two different dates. The Board's finding reads as follows: "The licensee [Barone], by its servants, agents or employes permitted persons to be solicited or enticed for the purpose of the purchase of beverages or other items for others on September 13, November 12, 1971." Based upon its findings, the Board revoked Barone's restaurant liquor license.
Barone filed an appeal with the court below, and by stipulation of counsel, the matter was heard de novo by the court based upon the record made before the Board. The court made new findings of fact in which it found and concluded that Barone was in violation of a regulation of the Board on only one of the two dates mentioned in the Board's finding, namely, November 12, 1971. In view of the court's new findings, it reduced the penalty imposed by the Board from a revocation, to a 90-day suspension. Barone has appealed to this Court, contending that (1) the findings of the court were not supported by the record, and (2) that the court abused its discretion in suspending Barone's license for 90 days.
The court below quite properly held a de novo hearing. See Section 464 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-464. The Liquor Code gives specific direction to the courts of
[ 10 Pa. Commw. Page 566]
common pleas in appeals of this nature, wherein at Section 471, 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 on the findings of fact and conclusions of law as found by the court."
In Noonday Club of Delaware County, Inc., Liquor License Case, 433 Pa. 458, 252 A.2d 568 (1969), our Supreme Court sets forth the guideline. In that case, the Court said: "Pursuant to this section [47 P.S. § 4-471] the lower court on appeal is required to hold hearings de novo, make its own findings of fact and conclusions of law and then in the exercise of its own discretion either sustain, reverse, or modify the action taken by the Board. The court is in no way limited either by statute or by case authority to a review of the Board's discretion, but rather makes a completely independent determination of all facets of the case in rendering its own decision. The only limitation placed upon the court is in the area of imposing penalties when no material changes are made in the findings of the Board." (Emphasis in original.) 433 Pa. at 467, 252 A.2d at 573.
Further guidelines are found in the case of Maple Liquor License Case, 207 Pa. Superior Ct. 237, 217 A.2d 859 (1966) where our Superior Court stated: "The law is well settled that the court below may not change or modify a penalty imposed by the Board unless it finds a different set of facts: Heights Fire Company Liquor License Case, 181 Pa. Superior Ct. 56, 121 A.2d 902. These different findings must concern issues which are material: Italian Citizens National Association of America Liquor License Case, 178 Pa. Superior Ct. 213, 115 A.2d 881. The court below ...