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decided: November 14, 1974.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Roosevelt Democratic Club of the 35th Ward of Philadelphia v. Pennsylvania Liquor Control Board, No. 2014 November Term, 1973.


Leo H. Loffel, for appellant.

J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Israel Packel, Attorney General, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 15 Pa. Commw. Page 453]

This appeal is from a January 30, 1974 order of the Court of Common Pleas of Philadelphia County affirming the October 22, 1973 order of the Pennsylvania Liquor

[ 15 Pa. Commw. Page 454]

Control Board (Board) revoking the club liquor license of the Roosevelt Democratic Club of the 35th Ward of Philadelphia (appellant). On June 20, 1973, the Board issued a citation to the appellant to show cause why its club liquor license No. C-3226 should not be revoked and the bond forfeited.

A hearing was held before the Board which found that the evidence established that the appellant had violated the laws of the Commonwealth and/or the regulations of the Board. Since this was the fifth citation issued against the appellant, the Board noted that a severe penalty was warranted and, on October 22, 1973, revoked the appellant's license, effective November 14, 1973.

The appellant appealed from this order of the Board to the Court of Common Pleas of Philadelphia County. The Court held a de novo hearing and affirmed the revocation of appellant's club liquor license after making the following findings of fact: "[O]n August 17, 1972, September 6, 1972 and February 28, 1973 the appellant by its servants, agents or employes sold liquor and/or malt or brewed beverages on the licensed premises to nonmembers. It is also clear and we find as a fact that on August 17th and September 6, 1972 the appellant by its agents, servants or employes permitted persons to be solicited for the purpose of purchasing beverages for others. Moreover, we also find, as a fact, that the appellant on August 17, 1972 and September 6, 1972 sold liquor and/or malt or brewed beverages between the hours of three o'clock ante meridian and seven o'clock ante meridian."

The appellant contends in this appeal that there is insufficient competent evidence to support the findings of the lower court. After a careful review of the record, we must disagree simply because the record convinces us that the order of the lower court is supported by sufficient competent evidence.

[ 15 Pa. Commw. Page 455]

A member of the Pennsylvania State Police testified that on the three dates in question he was admitted to appellant's club, although not a member of the club, and served drinks, some of which were ordered and served after the legal closing time. In addition, he testified that on each of three occasions, while he was seated at the bar, he was approached by a woman. These women, sometimes in the presence of employees of the appellant, requested the trooper to purchase them drinks. He also testified to the use of different colored plastic drink stirrers used by appellant's employees and that the drinks with red plastic stirrers were always served to the women, who would remove them and place them in their pocketbooks.

On appeal it is the duty of this Court to determine whether the court below abused its discretion or committed an error of law. The matter of credibility of the witnesses is for that court to determine. We cannot here weigh the testimony given before the court below. An appeal from an order revoking a liquor license is in the nature of a certiorari, and this Court is required to review the record to determine whether the evidence supports the order of the lower court. See Secrist Liquor License Case, 195 Pa. Superior Ct. 73, 169 A.2d 314 (1961).

This case is primarily one of fact. The court below, believing the witnesses of the Board, was justified in affirming the revocation of the Board.*fn1

[ 15 Pa. Commw. Page 456]

Appellant asserts in this appeal that the lower court erred in rendering a decision in this case in violation of a stipulation agreement. The alleged stipulation supposedly provided that the lower court would await the "outcome" of another appeal before another judge of the court below before deciding the case which is the subject of this appeal. This assertion is without merit since the alleged stipulation is not of record and, at most, it was a suggestion to the lower court with no indication of record whether the suggestion resulted in a definite agreement or a unilateral understanding only. Further, appellant has failed to persuade us that it was in any way prejudiced by the lower court's deciding this case prior to the decision in the other pending appeal. Even if we could conclude that there was error in this regard, we are satisfied that it would be, on this record, harmless error.

Likewise without merit is appellant's contention that it was error for the lower court to admit testimony by a Pennsylvania State Police trooper that while he was seated at the bar in appellant's establishment he was approached on three occasions by women and each woman identified herself by a first name and asked

[ 15 Pa. Commw. Page 457]

    the trooper to buy her a drink. The admission of such testimony is original evidence and, being a part of a transaction that constitutes a violation of the Board's regulation, is in fact material and an exception to the hearsay rule. 1 G. Henry, Pennsylvania Evidence ยง 441 (4th ed. 1953).

Order affirmed.



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