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EMERSON-HARRELL BAR CORP. v. COMMONWEALTH PENNSYLVANIA (02/10/78)

decided: February 10, 1978.

EMERSON-HARRELL BAR CORP., INC., PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, DEFENDANT



Original jurisdiction in case of Emerson-Harrell Bar Corp., Inc. v. Pennsylvania Liquor Control Board.

COUNSEL

Ralph Schwartz, for plaintiff.

David Shotel, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for defendant.

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

Author: Disalle

[ 33 Pa. Commw. Page 579]

This proceeding, a Petition for Review, was initiated by Emerson-Harrell Bar Corp., Inc. (Petitioner) against the Pennsylvania Liquor Control Board (Board). The Board filed preliminary objections contending that the petition did not set forth a valid claim for equitable relief.

Petitioner was the owner of a restaurant-liquor license issued by the Board and, on August 22, 1973, entered into an agreement for the sale of said license to RVA Enterprises, Inc. (RVA). On August 20, 1974, the Board approved the transfer of the license to RVA on a prior approval basis, subject to RVA's completion of certain remodeling of premises located at 101-05 Queen Street in the City of Philadelphia.

[ 33 Pa. Commw. Page 580]

The premises on Queen Street had been leased by RVA from R.V.R. Enterprises, Inc. (RVR). On August 28, 1974, the leased premises were totally destroyed by fire. RVR, the landlord and owner of the premises, was financially unable to rebuild the premises and consequently RVA was unable to remodel the premises in accordance with the requirements set forth by the Board in granting the pre-approval application.

In May of 1975, both Petitioner and RVA requested the Board by letter to rescind the transfer and return the license to Petitioner. The Board responded that it was not empowered by the Liquor Code to rescind the transfer between Petitioner and RVA. RVA then entered into an agreement of sale for the transfer of said license to a third party, but the Board refused to approve the transfer, for reasons not here relevant.

RVA refuses to pay Petitioner the final consideration due Petitioner for its purchase of the license because the payment is contingent upon RVA's receiving final approval of the transfer of the license from the Board. Since RVA cannot make the remodeling alterations because the premises were destroyed, final approval of the transfer has never been issued by the Board.

In the present petition, which is in the nature of a complaint in equity, Petitioner asks this Court to direct the Board to rescind the transfer of the license to RVA or, in the alternative, to permit RVA to transfer its license to an acceptable third party. (RVA has not been made a party to these proceedings.)

Under the circumstances, there is no cause of action against the Board. Recently, our Supreme Court, in the case of Befwick of Philadelphia, Inc. v. Cobblestones, Inc., 466 Pa. 488, 353 A.2d 459 (1976), ...


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