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HONEY BEAR (08/21/79)

decided: August 21, 1979.

IN RE: HONEY BEAR, INC. REVOCATION OF LIQUOR LICENSE. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Honey Bear, Inc., Revocation of Liquor License, No. 319 of 1977.

COUNSEL

David Shotel, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Gerald Gornish, Attorney General, for appellant.

Mark L. Glosser, with him Robert G. Sable, and Lampl & Sable, for appellee.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge DiSalle.

Author: Macphail

[ 45 Pa. Commw. Page 187]

The Liquor Control Board (Board) appeals from an order of the Court of Common Pleas of Allegheny County reversing the Board's revocation of a liquor license issued to Honey Bear, Inc. (Honey Bear) and ordering the Board to renew Honey Bear's license. The only issue raised by the Board in this appeal is whether the order of the Court of Common Pleas is in error. Before deciding that issue, however, we must determine whether this case is controlled by Section 468 of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-468 which was in effect at the time the Board revoked Honey Bear's license or by Section 468(b.1) of the Code, added by Section 2 of the Act of November 26, 1978, P.L. 1389, which became effective while the case was on appeal. For the reasons which follow, we hold that Section 468 of the Code is the controlling statute and that the lower court erred as a matter of law in reversing the Board's revocation of Honey Bear's license.

The facts of this case, although not in dispute, are important to an understanding of our disposition. On October 14, 1976, a Petition for Dissolution of Honey Bear was filed in the Court of Common Pleas of Allegheny County by Bennie Andy, a shareholder, officer and creditor of Honey Bear alleging, inter alia, that Honey Bear was insolvent. The Court, on the same day, entered an order appointing a receiver pendente lite and on December 6, 1976 made that appointment permanent. In January, 1977, the Board notified Honey Bear through Andy that the Board had received information that the licensee was insolvent and that a citation to show cause why the license should not be suspended or revoked might issue. On February 21, 1977, following an exchange of correspondence with the Board, the receiver placed the license in safekeeping with the Board. On March 1,

[ 45 Pa. Commw. Page 1881977]

, the Board issued a show cause citation why the license should not be revoked and fixed a hearing on the petition for April 29, 1977. On March 2, 1977, the receiver filed with the Board an application for renewal of the license.*fn1 On April 14, 1977, the receiver's application for renewal was denied by a letter from the Board. On April 29, the Board conducted a hearing on the show cause citation and on May 23, 1977 entered an order revoking the license. On May 30, 1977, the receiver appealed from the Board's denial of the application for renewal of the license. The receiver filed a timely appeal with the Allegheny County Court of Common Pleas from the Board's order of May 23, 1977 revoking the license. On August 15, 1977, the Court of Common Pleas of Allegheny County entered the order from which the Board now appeals.

At the time of Honey Bear's insolvency and for more than a year thereafter, Section 468 of the Code was in effect. That section read:

(b) In the event that any person to whom a license shall have been issued under the provisions of this article shall become insolvent, . . . the license of such person shall immediately terminate and be cancelled without any action on the part of the board, and there shall be no refund made or credit given for the unused portion of the license fee for the remainder of the license year for which said license was

[ 45 Pa. Commw. Page 189]

    granted. Thereafter, no license shall be issued by the board for the premises wherein said license was conducted to any assignee, committee, trustee, receiver, or successor of such licensee, until a hearing has been held by the board as in the case of a new application for license. In all such cases, the board shall have the sole and final discretion as to the propriety of the issuance of a license for such premises and as to the time it shall issue and the period ...


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