Appeals from the Order of the Court of Common Pleas of Northumberland County in the case of In Re: Granting of Request for the Transfer of a Restaurant Liquor License of John T. Chiavaroli, Marie V. Chiavaroli and Mildred Sanders, t/a The Nickelodeon.
Vincent V. Rovito, Jr., Rovito & Rovito, for appellants, John T. Chiavaroli, Marie V. Chiavaroli and Mildred Sanders.
I. Leonard Langan, with him David Shotel, Assistant Attorney General, and Kenneth W. Makowski, Acting Chief Counsel, for appellant, Commonwealth of Pennsylvania.
Frank J. Konopka, Lark, Makowski, Marateck & Konopka, for protestants.
Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 54 Pa. Commw. Page 589]
This is a consolidated appeal by the Pennsylvania Liquor Control Board (Board) and John F. Chiavaroli, Marie V. Chiavaroli and Mildred Sanders, t/a The Nickelodeon (Applicants) from an order of the Court of Common Pleas of Northumberland County which reversed a Board decision granting the transfer of a restaurant liquor license.
[ 54 Pa. Commw. Page 590]
On January 17, 1979, Applicants filed an application for the transfer of a restaurant liquor license and amusement permit from 100 South Market Street, Shamokin, Pennsylvania to a premises located about 200 feet diagonally across the street identified as 41 South Market Street, Shamokin. At a hearing held by the Board's examiner on June 21, 1979, two property owners whose residences nearly adjoined the premises proposed to be licensed and the pastor of Shamokin Gospel Tabernacle Church which is located within 300 feet of the premises proposed to be licensed appeared and objected. The Board granted the transfer finding, inter alia, that the premises proposed to be licensed were located within 300 feet of a church but that granting the transfer would not adversely affect the welfare, peace and morals of inhabitants of the neighborhood located within 500 feet of the premises. A Reverend Souders, paster of Grace Evangelical Lutheran Church, and the neighbors who appeared before the Board appealed that decision to the Court of Common Pleas of Northumberland County.
At the de novo hearing before that court, the testimony taken before the Board was admitted by stipulation. It was also stipulated that Grace Evangelical Lutheran Church is situated within 300 feet of the premises and that notice of the Board's hearing was not given to that institution. The testimony of the pastor of that church was received by the trial court. Additional testimony was also received from the pastor of the Gospel Tabernacle Church.*fn1 The trial court sustained the appeal and reversed the Board.
In the opinion in support of his order, the trial judge noted that the Board had not abused its discretion
[ 54 Pa. Commw. Page 591]
based upon the evidence it had before it. However, the trial judge also held that the additional testimony of Reverend Souders was sufficient together with the evidence heard by the Board, to prove that the transfer would affect the welfare, health, peace and morals of ...