Appeal from the Order of the Court of Common Pleas of McKean County in case of In Re: Appeal of Veterans of Foreign Wars, Post No. 6347, Mt. Jewett, Pennsylvania, No. 149 February Term, 1976.
David Shotel, Assistant Attorney General, with him J. Leonard Langan, Assistant Attorney General, Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellant.
John H. Yoder, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 35 Pa. Commw. Page 557]
This is an appeal from a decision of the Court of Common Pleas of McKean County which set aside an order of the Pennsylvania Liquor Control Board (Board) and directed that a club liquor license be granted to the appellee. We reverse the trial court and reinstate the order of the Board refusing the application.
Appellee is Post No. 6347 of the Veterans of Foreign Wars, and is located in the Borough of Mt. Jewett (Borough), McKean County. The quota for liquor
[ 35 Pa. Commw. Page 558]
licenses in the Borough is already exceeded. In addition, there is also one hotel liquor license and one club liquor license in effect, neither of which is counted against the quota. The Board found that while the Borough is located in a resort area, there was no substantial need for the appellee's license, and further that appellee's premises are located within 300 feet of the Mt. Jewett Elementary School and playground. The trial court, which heard the matter de novo, concluded that there was a substantial need for the license. Furthermore, the trial court concluded that the Board had erred in finding that the appellee's premises were within 300 feet of the Mt. Jewett Elementary School and playground. We cannot agree with the latter determination.
The record clearly demonstrates that the appellee's premises are located about 145 feet from the school playground, and about 345 feet from the school building itself. The trial court concluded that since the Board's finding stated that the premises to be licensed are located within 300 feet of the school and the playground, it was erroneous and could therefore be disregarded. We must disagree.
Under Section 404 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-404, the Board in its discretion may refuse to grant a license "if such place proposed to be licensed is within three hundred feet of any church, hospital, charitable institution, school, or public playground. . . ." See In Re: Appeal of Rusch, 32 Pa. Commonwealth Ct. 578, 379 A.2d 1375 (1977); In Re: Appeal of Elks of the World, Summit Lodge No. 115, 30 Pa. Commonwealth Ct. 526, 374 A.2d 747 (1977). As was stated by Judge Blatt in Elks of the World, supra, at 528, 374 A.2d at 748:
We have previously recognized that, by this section, the Legislature has given ...