Appeal from the Order of the Court of Common Pleas of Delaware County in case of In re: Appeal of Penn Continental Motor Inns, Inc., t/a Green Valley Motor Inns, from a Decision of the Pennsylvania Liquor Control Board, No. A-31, Page No. 352 March Sessions, 1973.
Joseph P. Mylotte, with him Alvin S. Ackerman, for appellant, Board of Commissioners.
J. Leonard Langan, Assistant Attorney General, with him Alexander J. Jaffurs, Assistant Attorney General, and Israel Packel, Attorney General, for appellant, Pennsylvania Liquor Control Board.
Francis R. Lord, with him Lord & Mulligan, for appellee.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Kramer.
[ 10 Pa. Commw. Page 653]
This case involves two appeals filed by the Pennsylvania Liquor Control Board (LCB) and the Board of Commissioners of Upper Darby Township (Township) from an order of the Court of Common Pleas of Delaware County dated February 13, 1973, in which the court sustained the appeal of Penn Continental Motor Inns, Inc., t/a Green Valley Motor Inn (Penn Continental). The order directed the LCB to issue a hotel liquor license to Penn Continental.
As an aid to an understanding of our determination of this matter we will set forth some of the pertinent facts as found by the court below. Penn Continental is a Pennsylvania corporation which is the owner and operator of a motel complex consisting of 82 units, the office for which is located in Clifton Heights Borough in Delaware County. We make this distinction for the reason that although the offices, and the subject restaurant for which application has been made for a hotel liquor license, are located in that borough, the large majority of the motel units are located in the Township of Upper Darby. The record clearly shows that Penn Continental has met all of the requirements under the law entitling it to the liquor license sought with one possible exception which has been raised by the LCB and the Township, i.e., the northerly property
[ 10 Pa. Commw. Page 654]
line of Penn Continental abuts a public playground located in Upper Darby Township, and the northerly edge of the closest motel building is within ten feet of that boundary line. The record also shows that the distance between the closest edge of the restaurant, which the Penn Continental application designates as the area to be licensed, to the boundary abutting the playground property is approximately 400 feet. The record also establishes that the boundary between the motel property and the playground is completely fenced with a seven to twelve feet high cyclone fence, beyond which, on the playground side, is a creek. After the filing of protests by the Township*fn1 and some residents of the area, a hearing was held before the LCB. On November 29, 1972, the LCB issued an order refusing the granting of a new hotel liquor license to Penn Continental for two reasons:
"1. The proposed licensed premises are located within 300 feet of the Bishop Road-Delmar Road playground.
2. The granting of this license will adversely affect the welfare, peace, health and morals of the neighborhood within a radius of 500 feet."
Upon appeal to the court below, counsel for the parties submitted the case on the record which had been made before the LCB. The lower court made extensive findings, none ...