Paul Auerbach, Philadelphia, for appellant.
Harry Bowytz, Chief Counsel, J. Leonard Langan, Asst. Atty. Gen., Harrisburg, for appellee, Pennsylvania Liquor Control Bd.
Ronald H. Surkin, Philadelphia, for appellee, Cobblestones, Inc.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., concurs in the result.
This is an appeal*fn1 from an order of the Commonwealth Court dismissing the complaint of appellant Befwick
of Philadelphia (Befwick) against the Pennsylvania Liquor Control Board (PLCB), and transferring the action to the court of common pleas for adjudication of the dispute between Befwick and Cobblestones, Inc. We agree that PLCB is not a proper party to the action and affirm.
In August 1973, Befwick entered into an agreement to sell its restaurant liquor license to Cobblestones. It was necessary for PLCB to approve the transfer of the license. The agreement of sale provided:
"3. In the event that the [PLCB] shall fail to approve the transfer of the said license by the 31st day of December, 1973, the application for transfer may be withdrawn at the option and election of [Befwick]. Simultaneously with the execution of this agreement, the parties shall execute a letter of withdrawal dated December 31, 1973, authorizing the withdrawal of the application of transfer. This letter of withdrawal shall be held in escrow . . . and shall be delivered to [Befwick] upon notice in writing of its election to withdraw from the agreement and to terminate the application for transfer."
PLCB had not approved the transfer by December 31, 1973, and in a letter dated January 7, 1974, Befwick notified Cobblestones that the agreement of sale was to be terminated "forthwith." The letter also requested, pursuant to paragraph 3 of the sales agreement, that the letter withdrawing the transfer application be forwarded immediately. Cobblestones apparently never transmitted the executed letter of withdrawal, despite the provisions of paragraph 3 of the agreement.
On January 14, 1974, Befwick forwarded to PLCB's Philadelphia district office a copy of the letter it had sent to Cobblestones, advising Cobblestones that it was under agreement to withdraw the transfer application. On February 5, 1974, Befwick informed the ...