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PENNSYLVANIA TAVERN ASSOCIATION ET AL. v. COMMONWEALTH PENNSYLVANIA (01/28/77)

decided: January 28, 1977.

PENNSYLVANIA TAVERN ASSOCIATION ET AL., APPELLEES,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD AND ELEMAR, INC., ET AL., APPELLANTS



COUNSEL

Rodger L. Mutzel, Thomas J. Shannon, Media, for appellants.

John H. Bream, Gregory M. Kerwin, Harrisburg, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which Jones, C. J., joined. Eagen, J., concurs in the result. Manderino, J., filed a dissenting opinion.

Author: Per Curiam

[ 472 Pa. Page 568]

OPINION

On May 8, 1972, the Pennsylvania Liquor Control Board (Board) issued identical citations against the appellants in this action, three Lancaster County beer distributors; Elemar, Inc., Garrett Hill Beverage Co., Inc. and Railsplitter, Inc., all of which were trading under the name "Thrifty Beverage". Each of the licensees was charged with having "permitted a person who has an interest in another Distributor or Importing Distributor License to have an interest in your licensed premises," in violation of Sections 436(f) and 438(b) of the Pennsylvania Liquor Code.*fn1

[ 472 Pa. Page 569]

After an administrative hearing held on August 25, 1972, the Board determined that the franchise agreements between each of the appellant licensees and their managing, consulting firm, General Programming, Inc., did in fact violate the aforementioned Code provisions, and suspended the licensees respective distributor's licenses for a period of twenty-one days and thereafter, until all persons other than the licensees had divested themselves of all interest in the licensed businesses. That decision was subsequently appealed by all three licensees to the Court of Common Pleas of Lancaster County which, after holding a de novo hearing, sustained the Board's order.*fn2

The licensees thereafter filed an appeal before the Commonwealth Court. However, on August 19, 1974, prior to argument and submission of briefs, the Board, the licensees and General Programming, Inc., entered into a stipulation in which the three licensees cancelled and modified all existing contracts with General Programming, Inc. to conform to the opinion of the Court of Common Pleas of Lancaster County. In addition, the Board agreed to vacate its original order and instead of suspension, imposed a fine of $1,000.00 upon each of the licensees. Thereafter, pursuant to the stipulation, which was never approved by the Lancaster County or Commonwealth

[ 472 Pa. Page 570]

Courts, the licensees withdrew their appeals then pending in the Commonwealth Court.

On December 10, 1974, appellees in this appeal, Pennsylvania Tavern Association and P.U.B.L.I.C.,*fn3 initiated the present mandamus action in Commonwealth Court, seeking to compel the Board to enforce the original suspension order.*fn4 The Commonwealth Court, after dismissing preliminary objections filed by the Board,*fn5 concluded that the Board lacked authority to modify its order after it had been judicially reviewed and sustained, and granted appellees' motion for summary judgment. The court issued the requested writ of mandamus, ordering the Board to reinstate and enforce its original order of suspension. This appeal followed.*fn6 Because we do not believe that the relief requested by the appellees and granted by the Commonwealth Court was appropriate on this record, we reverse.

This Court has repeatedly stated that mandamus "is a high prerogative writ representing an extraordinary remedy which will not be granted in doubtful cases."

[ 472 Pa. Page 571]

    raised and record compiled in the enforcement action, was unquestionably in the best position to consider the legal and practical consequences of the Board's proposed modification of its own order. Thus, it would be most consistent with judicial efficiency to require the court whose order is being ignored or modified to pass upon the wisdom of that action. For this reason, we hold that the Commonwealth Court abused its discretion in issuing the writ in view of the availability to appellees of an adequate alternative remedy at law.

Order of the Commonwealth Court reversed.

ROBERTS, Justice, concurring.

I agree that the order of the Commonwealth Court should be reversed, but cannot accept the reasons set forth by the majority. I do not agree with the majority that appellees have an adequate remedy at law. In my view the ...


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