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MATTER REVOCATION DISTRIBUTOR LICENSE NO. D-3562 ISSUED TO ELEMAR (07/27/79)

decided: July 27, 1979.

IN THE MATTER OF REVOCATION OF DISTRIBUTOR LICENSE NO. D-3562 ISSUED TO: ELEMAR, INC., T/A THRIFTY BEVERAGE ET AL. ELEMAR, INC. ET AL., APPELLANTS. IN THE MATTER OF REVOCATION OF DISTRIBUTOR LICENSE NO. D-3562 ISSUED TO: ELEMAR, INC., T/A THRIFTY BEVERAGE ET AL. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD ET AL., APPELLANTS


Appeals from the Order of the Court of Common Pleas of Lancaster County in case of In the Matter of Revocation of Distributor License Number D-3562 Issued to: Elemar, Inc., t/a Thrifty Beverage; License Number D-3526 Issued to Garrett Hill Beverage Co., Inc. t/a Thrifty Beverage; and License Number D-3567 Issued to Railsplitter, Inc. t/a Thrifty Beverage, License Docket No. 1, Pages 93, 94, and 95, 1972.

COUNSEL

Rodger L. Mutzel, with him Kassab, Cherry, Curran & Archbold, for Elemar, Inc., Garrett Hill Beverage Co., Inc., Railsplitter, Inc. and General Programming, Inc.

J. Justin Blewitt, Deputy Attorney General, with him W. William Anderson, Deputy Attorney General, and Robert P. Kane, Attorney General, for Commonwealth.

John H. Bream, with him Gregory M. Kerwin, for intervenors.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt, DiSalle and Craig. Judges Wilkinson, Jr. and MacPhail did not participate. Opinion by Judge Craig.

Author: Craig

[ 44 Pa. Commw. Page 517]

This is an appeal by three distributors (licensees), their managing consulting firm, General Programming, Inc., and the Pennsylvania Liquor Control Board (PLCB) from an order of the Court of Common Pleas of Lancaster County making absolute a rule to show cause why a citation for contempt of court should not be issued against the members of the PLCB. We affirm.

The procedural history of this case is long and complex. On May 8, 1972, the PLCB issued citations against the licensees, charging each of them with having permitted a person who has an interest in another distributor to also have an interest in its business, in violation of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 1-101 et seq.

After a hearing, the PLCB found licensees to be in violation of the Liquor Code because of franchise agreements between each of them and their managing consulting firms. The PLCB suspended licensees' distributor licenses for a period of twenty-one days and thereafter until persons other than the licensees had been divested of all interest in the licensed businesses.

[ 44 Pa. Commw. Page 518]

Licensees appealed to the lower court, which, on October 19, 1973, entered an order specifically affirming the PLCB's suspension.*fn1

Licensees appealed to this court. On August 19, 1974, while the appeal was still before this court, the PLCB, licensees and their managing consulting firm entered into a stipulation and agreement under which licensees would withraw their appeals to this court and would redraft their management agreements in a manner acceptable to the PLCB. The PLCB agreed "to enter into stipulations remanding the cases presently on appeal to the Court of Common Pleas of Lancaster County and further stipulating that the Court of Common Pleas of Lancaster County remand said cases to the Pennsylvania Liquor Control Board for imposition of penalties under said citations," and that " upon remand to the Pennsylvania Liquor Control Board, the Pennsylvania Liquor Control Board shall reconsider the disposition of citations heretofore issued." (Emphasis supplied.)

On the same day, by agreement, licensees withdrew the appeals to this court. However, there is no evidence that the lower court approved the stipulation and agreement, or remanded the matter to the PLCB.*fn2

[ 44 Pa. Commw. Page 519]

On December 10, 1974, the Pennsylvania Tavern Association and P.U.B.L.I.C. (associations), both of which are comprised of competing licensed businesses, brought an action in mandamus in this court to compel the PLCB to enforce the suspension orders. While the mandamus action was pending before this court, the PLCB vacated the suspension orders and substituted a fine of $1,000 upon each licensee.

Subsequently this court granted the mandamus relief and ordered the PLCB to reinstate its earlier order. Pennsylvania Tavern Association v. Pennsylvania Liquor Control Board, 23 Pa. Commonwealth Ct. 264, 352 A.2d 221 (1976). The Pennsylvania Supreme Court reversed this court at 472 Pa. 567, 372 A.2d 1187 (1977), in which three opinions were filed. Justices O'Brien, Pomeroy, and Nix joined in a plurality opinion which stated that mandamus was improper because an adequate remedy was available to the associations by way of a petition to the lower court to enforce its own order sustaining the license suspensions. Justice Roberts, joined by then Chief Justice Jones, concurred in the reversal, arguing that the associations lacked standing. Justice Manderino dissented, arguing that, although the associations had standing, the PLCB had the power to modify its earlier order. Justice Eagen concurred in the result.

As a result of the Supreme Court's ruling, the associations did in fact petition the lower court to enforce its order, and the lower court issued a rule to show cause why a citation for contempt of court should not be issued against the members of the PLCB, which was made absolute on December 27, 1977, ...


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