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COMMONWEALTH PENNSYLVANIA v. ITALIAN MUTUAL SOCIETY GALLITZIN (11/28/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 28, 1974.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT,
v.
THE ITALIAN MUTUAL SOCIETY OF GALLITZIN, PA., APPELLEE

Appeal from the Order of the Court of Common Pleas of Cambria County in case of Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. The Italian Mutual Society of Gallitzin, Pa., No. 1 December Term, 1972.

COUNSEL

Albert B. Miller, Special Assistant Attorney General, with him Alexander J. Jaffurs, Assistant Attorney General, and Israel Packel, Attorney General, for appellant.

Eugene A. Creany, and Englehart, Creany, Englehart & Leahey, for appellee.

Judges Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 11 Pa. Commw. Page 79]

On August 29, 1972, after an appropriate citation, notice, and hearing, the Pennsylvania Liquor Control Board imposed a fine of $500 on the appellee based on a finding that it sold liquor or malt or brewed beverages to non-members on March 12, April 9, and April 15, 1972. An appeal was taken to the Court of Common Pleas which had a de novo hearing. At the de novo hearing, the record before the Board was offered by stipulation and additional testimony was received from one witness on behalf of appellee. The Common Pleas Court found that illegal sales to non-members took place on March 12 and April 15, but reversed the finding of an illegal sale on April 9, and reduced the fine from $500 to $300. The Board filed this appeal. We must reverse.

Although there may have been some doubt as to the scope of the authority of the Court of Common Pleas and of this Court in appeals from the Pennsylvania Liquor Control Board prior to the Supreme Court of Pennsylvania's decision on September 19, 1973, in Appeal of Carver House, Inc., 454 Pa. 38, 310 A.2d 81 (1973), there can be no doubt following that decision. In making its findings, the lower court may not capriciously

[ 11 Pa. Commw. Page 80]

    disregard competent evidence of violations by the licensee, and may not alter a penalty imposed where it is within the Board's statutorily conferred powers. This Court invited a reconsideration of this rule by the Supreme Court when Carver was before this Court. See The Carver House, Inc. v. Liquor Control Board, 3 Pa. Commonwealth Ct. 453, 281 A.2d 473 (1971); however, the Supreme Court has chosen to reaffirm the rule.

Appellee has never offered any evidence to contradict the testimony of the Board officers that they made the illegal purchases from the appellee on the dates found by the Board. The only evidence offered by appellee with regard to purchases was that on one occasion, the bartender had gone to the rest room and that a patron had gone behind the bar and served one of the Board officers. However, the clear testimony of the officer was that on that day, April 9, he was in the club from 3:55 p.m. until 5:10 p.m., and that he had made two purchases. Before the Common Pleas Court, it was stipulated that on April 9, a patron had served the Board officer. This stipulation was entered by the Board's attorney who, after conferring with the attorney for the appellee, put on the record: "Just an explanatory note. On the matter of the visit of Mr. Harkins, an officer of the Board, on the date of April 9th, after Mr. Harkins received service from a patron, shortly thereafter the bartender returned to his position as a bartender, and Mr. Harkins did receive service from him."

There is no doubt that the court below was sympathetic to the position of the appellee and was impressed with the only testimony presented by appellee which, its attorney stated, was offered to show "extenuating circumstances." Under the mandate of our Supreme Court, neither this Court nor the Common Pleas Court can permit "extenuating circumstances"

[ 11 Pa. Commw. Page 81]

    to alter uncontradicted testimony of violations or to alter the penalty.

The decision of the Court of Common Pleas is reversed, and the order of the Pennsylvania Liquor Control Board, dated August 29, 1972, is reinstated.

Disposition

Reversed. Order of Board reinstated.

19741128

© 1998 VersusLaw Inc.



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