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COMMONWEALTH v. MARIANO J. DIMARCO AND MARY E. DIMARCO. COMMONWEALTH PENNSYLVANIA (10/06/76)

decided: October 6, 1976.

COMMONWEALTH
v.
MARIANO J. DIMARCO AND MARY E. DIMARCO. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT. MARIANO J. DIMARCO AND MARY E. DIMARCO, APPELLANTS V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Appeals from the Order of the Court of Common Pleas of Lycoming County in case of Commonwealth v. Mariano J. DiMarco and Mary E. DiMarco, No. 74-0920.

COUNSEL

J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for Commonwealth.

John P. Campana, with him Campana & Campana, for DiMarco.

Judges Crumlish, Jr., Wilkinson, Jr., and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 26 Pa. Commw. Page 505]

Both the Pennsylvania Liquor Control Board and Mariano J. DiMarco and Mary E. DiMarco, his wife, owners of Yano's White Horse Inn, Lycoming County, have appealed from an opinion and order of the Court of Common Pleas of Lycoming County modifying a Liquor Board order by reducing a fine imposed by the Board on the DiMarcos from $1000 to $500.

The Liquor Control Board argues that the court below, which conducted a hearing de novo, capriciously disregarded uncontradicted evidence when it found that "the evidence is not sufficient to show that defendants

[ 26 Pa. Commw. Page 506]

    permitted the . . . dancer to contact and/or associate with patrons in the licensed premises." The finding complained of differs from a finding by the Board that the DiMarcos permitted entertainers "to contact and/or associate with patrons." Since the court itself took testimony and made a finding different from that of the Board, the Board, quite properly, does not question the court's power to modify its order;*fn1 rather the Board says that the court capriciously ignored its evidence.

The regulation alleged to have been violated by the DiMarcos is 5.32(d) of the Liquor Board, to be found at 40 Pa. Code ยง 5.32(d), and reads as follows:

"No licensee shall permit any person engaged directly or indirectly as an entertainer in the licensed establishment or any room or place connected therewith, to contact or associate with the patrons in such establishment, room or place for any purpose. A copy of this restriction shall be constantly and conspicuously displayed on the wall of the dressing room or rooms used by such entertainers."

We agree with the Board that the description by its witnesses of the dancer's activities would sufficiently prove contact and association with patrons during the course of her performance. On the other hand, most of this testimony was refuted by the DiMarcos' witnesses, including the dancer. We find no fault with the court's action in making a finding different from that of the Board in these circumstances. Therefore, the court had the power, which in our judgment it did not err in asserting, to modify the penalty by ...


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