decided: January 30, 1979.
LANCASTER COUNTY TAVERN OWNERS ASSOCIATION, BY RICHARD A. WIDEMAN, EARL C. MUSSER AND JAMES F. COSGROVE, TRUSTEES AD LITEM, PETITIONERS
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENT
Original jurisdiction in case of Lancaster County Tavern Owners Association, by Richard A. Wideman, Earl C. Musser and James F. Cosgrove, Trustee ad Litem v. Pennsylvania Liquor Control Board.
William E. Haggerty, with him James F. Heinly, and Morgan, Hallgren & Heinly, for petitioner.
J. Leonard Langan, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Gerald Gornish, Acting Attorney General, for respondent.
Judges Mencer, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.
[ 40 Pa. Commw. Page 202]
The Lancaster County Tavern Owners Association (petitioner), representing tavern and restaurant liquor licensees from Lancaster County, has filed a petition for review in the nature of mandamus against the Pennsylvania Liquor Control Board (Board). Petitioner seeks to compel the Board to reopen an application proceeding in which Lampeter Restaurant Associates, Inc. (Lampeter) was granted a restaurant liquor license pursuant to the resort area exception of Section 461(b) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-461(b). In addition, petitioner seeks to compel the Board to issue a citation pursuant to Section 471 of the Code, 47 P.S. § 4-471, to show cause why Lampeter's license, which issued on September 24, 1976, should not be suspended or revoked or why a fine should not be imposed on Lampeter. Currently before us are the Board's preliminary objections which contend that petitioner
[ 40 Pa. Commw. Page 203]
does not have standing to bring this action*fn1 and that mandamus does not lie because petitioner has an adequate remedy at law and because the actions sought to be compelled are discretionary.
In the case of Nicolella v. Trinity Area School District School Board, 444 Pa. 544, 281 A.2d 832 (1971), the Supreme Court of Pennsylvania held that mandamus is an extraordinary writ which issues to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy. Moreover, it held that in such a proceeding the court cannot compel one who is vested with discretionary powers to perform it in any particular manner and that it cannot interfere with or control a public official's discretion or judgment. See also Valley Forge Racing Association v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972); Morgan v. Bucher, 442 Pa. 498, 276 A.2d 523 (1971); Martin v. Garnet Valley School District, 441 Pa. 502, 272 A.2d 913 (1971). Mandamus does not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent, or based on a mistaken view of the law. Valley Forge Racing Association v. State Horse Racing Commission, supra.
[ 40 Pa. Commw. Page 204]
Petitioner has failed to sustain its burden of showing, in this mandamus action, that it has a clear right to the remedy requested, because the reopening of an application proceeding after the grant of a restaurant liquor license and the issuance of a citation for the revocation of the license granted are matters within the Board's discretion. On this record, there is no showing that the Board's failure to exercise its discretion relative to reopening the application proceeding or issuing a citation for the revocation of the license granted Lampeter would be arbitrary, fraudulent, or a mistake of law. Thus the petitioners do not have a clear right to a writ of mandamus*fn2 and we will enter the following
And Now, this 30th day of January, 1979, the Pennsylvania Liquor Control Board's preliminary objections to the Lancaster County Tavern Owners Association's petition for review in the nature of mandamus are sustained, and the petition is dismissed.
Preliminary objections sustained. Petition dismissed.