Appeals from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth v. Washington Sporting Club, No. 1987 March Term, 1973.
Albert B. Miller, Special Assistant Attorney General, with him Welton J. Fischer, Assistant Attorney General, and Israel Packel, Attorney General, for appellant-appellee, Pennsylvania Liquor Control Board.
James Dunworth, with him Lynwood F. Blount, for appellant-appellee, Washington Sporting Club.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
[ 13 Pa. Commw. Page 258]
On March 26, 1973, after hearing following a citation, the Pennsylvania Liquor Control Board (Board) entered an order revoking the club liquor license of the Washington Sporting Club. This order was based upon the following finding of fact: "The licensed organization, by its servants, agents or employes sold liquor
[ 13 Pa. Commw. Page 259]
and/or malt or brewed beverages on the licensed premises to non-members, on October 22, November 5, 1972." This was the licensee's seventh violation since receiving its license in 1934.
The licensee appealed to the Court of Common Pleas of Philadelphia County and that tribunal entered an order June 22, 1973, denying the appeal and modifying the Board's order by substituting a 30-day suspension of the club license for the Board's revocation of that license. Both the Board and the licensee have appealed to this Court.
The court below found, after hearing, that "on October 22, November 5, 1972 the [Washington Sporting Club] sold liquor and/or malt beverages on its premises to non-members" and "[t]hese acts were in violation of the applicable provisions of the Pennsylvania Liquor Code." In view of this finding, there was no justification for a modification of the order of the Board. The court of common pleas may change the penalty imposed by the Board "only when it has made significant and material changes in the findings of the Board." Noonday Club of Delaware County, Inc. Liquor License Case, 433 Pa. 458, 464, 252 A.2d 568, 572 (1968).
It is now firmly established that the lower court must make findings of fact on the material issues different from those made 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. Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A.2d 81 (1973).
Here there are no findings of fact on material issues made by the lower court which are different from those made by the Board. Therefore, this case can be distinguished from Commonwealth v. M.S.G., Inc., 7 Pa. Commonwealth Ct. 540, 297 A.2d 556 (1972), wherein we approved a lower court ...