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WARREN P. PHELAN v. COMMONWEALTH PENNSYLVANIA (05/17/77)

decided: May 17, 1977.

WARREN P. PHELAN
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Warren P. Phelan v. Pennsylvania Liquor Control Board, No. 364 March Term, 1975.

COUNSEL

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

Joseph A. Malloy, Jr., with him Walter T. Darmopray, Christopher F. Stouffer, and Hamilton, Darmopray & Malloy, for appellee.

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

Author: Wilkinson

[ 30 Pa. Commw. Page 200]

This appeal arises from an order of the Court of Common Pleas of Bucks County reversing the Pennsylvania Liquor Control Board (Board) and ordering the approval of appellee's application for the renewal

[ 30 Pa. Commw. Page 201]

    and transfer of a restaurant liquor license. We reverse.

In December of 1971 the Board granted prior approval of appellee's application for a liquor license for a new restaurant to be located at 198 York Road, Warminster Township. The license was renewed annually, finally expiring on October 31, 1975. During this period appellee never started construction of the restaurant, he having decided that the proposed site was not desirable because of traffic problems and limited parking facilities. On or about August 28, 1974, appellee applied to transfer his license to another location in Warminster Township. The Board denied the application on the basis that the transfer was prohibited by Section 403(a) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 4-403(a). The court below reversed and this appeal was filed.

Section 403(a) reads in pertinent part:

After approval of the application, the licensee shall make the physical alterations, improvements and changes to the licensed premises, or shall construct the new building in the manner specified by the board at the time of approval . . . . The board may require that all such alterations or construction or conformity to definition be completed within six months from the time of issuance or transfer of the license. Failure to comply with these requirements shall be considered cause for revocation of the license. No such license shall be transferable between the time of issuance or transfer of the license and the approval of the completed alterations or construction by the board and full compliance by the licensee with the requirements of this act, except in the case of death of the licensee prior to full compliance with all of the aforementioned requirements. . . . (Emphasis added.)

[ 30 Pa. Commw. Page 202]

The express statutory prohibition on transfers of new restaurant licenses prior to the completion of construction was modified by this Court in Pennsylvania Liquor Control Board v. Rauwolf, 3 Pa. Commonwealth Ct. 95, 281 A.2d 205 (1971). In that case the licensee, despite serious efforts to comply with the statutory requirements, could not obtain the necessary building permits. He, therefore, applied to transfer his license to a new owner at a new location. The Court believed that where the licensee was faced with the impossibility of finishing construction, that prohibiting a transfer would be "an absurd or unreasonable result." Id. at 101, 281 A.2d at 208. Under a literal construction of the section, Rauwolf ...


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