decided: January 14, 1980.
IN THE MATTER OF REVOCATION OF CLUB LIQUOR LICENSE NO. C-1105, RURAL CLUB OF BRUSHTON, 507 BRUSHTON AVENUE, PITTSBURGH, PA. 15208. 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 the Matter of Revocation of Club Liquor License No. C-1105, Rural Club of Brushton, No. SA 1068 of 1978.
J. Leonard Langan, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Edward Biester, Jr., Attorney General, for appellant.
No appearance for appellee.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the expiration of the term of office of Judge DiSalle.
[ 48 Pa. Commw. Page 475]
The Pennsylvania Liquor Control Board (LCB) has appealed from an order of the Court of Common Pleas of Allegheny County. The court order complained of was made after a hearing de novo of Rural Club of Brushton's appeal from an LCB order suspending its club liquor license for 45 days for selling liquor and beer to nonmembers and for after hours transactions. The court below could not have and did not disturb the LCB's findings on the merits. The court concluded, however, that it was unreasonable for the LCB in fixing the penalty to have considered past violations occurring more than three years prior to the offense in question. Characterizing this conclusion as finding of fact different from LCB's, the court reduced the period of suspension to ten days. We reverse.
It is clear law that a court may not reverse or change the action of the LCB unless it makes findings of fact on material issues different from those made by LCB. Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A.2d 81 (1973). In Crangi Liquor License Case, 25 Pa. Commonwealth Ct. 322, 361 A.2d 488 (1976), we held that the lower court's view that the LCB gave erroneous or arbitrary consideration to prior violations in fixing the penalty was not a material
[ 48 Pa. Commw. Page 476]
additional finding of fact upon which a modification of the penalty could be based.
We reverse the order of the Court of Common Pleas of Allegheny County and reinstate the order of the LCB suspending the Club license of the appellee, Rural Club of Brushton, for forty-five days.
And Now, this 14th day of January, 1980, the order of the Court of Common Pleas of Allegheny County dated January 5, 1979 is reversed and the order of the Pennsylvania Liquor Control Board dated September 5, 1978 is reinstated.
This decision was reached prior to the expiration of the term of office of Judge DiSalle.
Reversed. Suspension reinstated.
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