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APPEAL BRANDYWINE VALLEY INN (07/23/80)

decided: July 23, 1980.

IN RE: APPEAL OF BRANDYWINE VALLEY INN, INC. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT


Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Appeal of Brandywine Valley Inn, Inc., No. 294-P Misc. Term, 1978.

COUNSEL

David Shotel, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel and Edward Biester, Jr., Attorney General, for appellant.

Robert J. Shenkin, MacElree, Harvey, Gallagher, O'Donnell & Featherman, LTD., for appellee.

John H. Bream, for Chester County Tavern Association.

Judges Wilkinson, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 53 Pa. Commw. Page 204]

Brandywine Valley Inn, Inc. (Appellant) filed an application for a liquor license to the Pennsylvania Liquor Control Board (Board) under Section 461(b) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-461(b), the "resort area" exception.*fn1 The Board conducted a hearing and refused to grant the license. An appeal was filed to the Court of Common Pleas of Chester County and a trial de novo was held pursuant to Section 464 of the Liquor Code, 47 P.S. § 4-464. The lower court reversed the Board and ordered that the license be issued. The Board appealed to this Court. We affirm.

[ 53 Pa. Commw. Page 205]

In the instant case, the Board made the following findings:

1. As provided by law, Pennsbury Township, Chester County, has a quota of 1 retail license. There is presently 1 restaurant liquor license in effect which is counted against the quota. Accordingly, the quota is filled.

2. There is no evidence of a necessity for an additional restaurant liquor license in Pennsbury Township, Chester County.

3. It has not been established that the establishment proposed to be licensed is located in a resort area, within the meaning of the Liquor Code.

Under Section 464, these findings are reviewed de novo and the court may make findings different from those made by the Board. Petition of Springdale Sportsmen's Association, 20 Pa. Commonwealth Ct. 479, 342 A.2d 802 (1975). However, the court may not substitute its discretion for that of the Board. Penn State Faculty Club Liquor License Case, 33 Pa. Commonwealth Ct. 320, 381 A.2d 1017 (1978). Where, as here, the lower court makes findings different from the Board, these must be supported by substantial evidence to sustain the court's order. Further, where the findings by the court show that a license should be issued, the court may determine that refusal to grant the license was an abuse of discretion. As the court noted in Bierman Liquor License Case, 188 Pa. Superior Ct. 200, 145 A.2d 876 (1958), no exercise of discretion by the ...


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