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EMERY W. DAWES v. COMMONWEALTH PENNSYLVANIA. PENNSYLVANIA LIQUOR CONTROL BOARD (12/12/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 12, 1980.

EMERY W. DAWES, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA. PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania v. Emery Dawes, Inc., No. 2355 May Term, 1979.

COUNSEL

Thomas M. Nocella, for appellant.

J. Leonard Langan, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Harvey Bartle III, Acting Attorney General, for appellee.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 55 Pa. Commw. Page 302]

Emory W. Dawes, Incorporated (licensee) appeals from an order of the Court of Common Pleas of Philadelphia County, which affirmed the imposition of a $300 fine and revocation of licensee's Sunday liquor sales permit by the Pennsylvania Liquor Control

[ 55 Pa. Commw. Page 303]

Board (PLCB), on the ground that licensee had furnished false information to the PLCB regarding sales of food and beverages in connection with its application for a Sunday permit under Section 406 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 4-406.

After hearing the case de novo, the trial court found that the PLCB had established that licensee had sumitted false information, based on the following facts.

Licensee applied for the Sunday permit in August 1978 and certified that from September 19, 1977 to August 8, 1978, its total sales were $37,028, of which $15,268, or 41.3%, represented sales of food and non-alcoholic beverages; thus licensee represented sales of alcoholic beverages totaling $21,760. Section 406 requires, as a condition of receiving a Sunday permit, that a minimum of 40% of a licensee's total sales be sales of food and non-alcoholic beverages.

The court concluded that testimony by a PLCB investigator demonstrated that licensee's sales of alcoholic beverages in fact totaled $33,969 in that period, as opposed to the submitted figure of $21,760; taking into account the submitted figure of $15,268 in sales of food and non-alcoholic beverages, the relevant percentage was in fact 31%, as opposed to the 41.3% figure submitted by the licensee.

The court thus affirmed the action taken by the PLCB and dismissed licensee's appeal.

Our scope of review is limited to a determination of whether the board's order is supported by sufficient evidence and whether or not the lower court committed an error of law or abused its discretion. The question here is thus whether the PLCB's revocation order is supported by substantial evidence. Diana Appeal, 31 Pa. Commonwealth Ct. 363, 375 A.2d 1386 (1977).

[ 55 Pa. Commw. Page 304]

"The substantial evidence required to support findings of an administrative agency is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Rabinowitz v. Unemployment Compensation Board, 15 Pa. Commonwealth Ct. 51, 55, 324 A.2d 825, 827-8 (1974).

Licensee here contends that the calculation employed by the PLCB, and accepted by the court, was erroneous in several respects.

Licensee initially challenges the markup ratios*fn1 used by the investigator as being unexplained. However, the investigator explained them in sufficient, although very general, terms. Because the licensee offered no evidence to discredit them, the court was justified in accepting them.

Licensee's major claim is that the PLCB did not credit licensee with high enough closing inventory figures; higher ending inventory figures produce lower alcoholic sales figures. First, licensee asserts that the allowance of only $500 as beer inventory at the close of the period is wrong. The court accepted that value on the basis of the investigator's testimony, which stated that the licensee supplied the $500 figure to him; licensee controverted that testimony, claiming that final beer inventory was "about $2000." The question is plainly one of credibility; we will not disturb the court's resolution of that conflict.

Secondly, licensee claims that the PLCB "did not consider any [closing] inventory for whiskey or wine in his computation." Although we have had to search through the record because no clear compendium or exhibit of the calculations has been presented to us, we have analyzed all the figures on this point.

The investigator testified, as noted above, that total sales of alcoholic beverages came to $33,969. Deducting

[ 55 Pa. Commw. Page 305]

    from that figure the sum of $29,563 for beer sales revenue (which we have calculated in a footnote)*fn2 leaves $4,406 as the sales value of licensee's liquor and wine sales.

When we compare that liquor and wine sales receipts result of $4,406 to the figure of $5,767 agreed to be the liquor and wine initial cost (with no beginning inventory), a substantial closing inventory figure for liquor and wine is indicated, approximately $4,135, according to our analysis.*fn3

[ 55 Pa. Commw. Page 306]

The licensee contends for a closing liquor and wine inventory a figure of $3,000. But, as noted above, the court could mathematically infer that the PLCB credited the licensee with a closing liquor inventory figure even higher than that for which he contends, closer to licensee's claim of $5,000 or $5,500 as his total closing inventory for liquor, wine and beer.

Obviously, a lower ($500) closing inventory for beer (with higher markup) and the higher closing inventory for liquor and wine (with lower markup) could be at the heart of the licensee's difficulty, which is insuperable because it rests, as noted above, on matters of credibility within the exclusive province of the trial judge.

Because the conclusion of the trial judge, based on the evidence, cannot be dismissed as impossible or beyond reason, we affirm the decision.

Order

And Now, this 12th day of December, 1980, the November 19, 1979 order of the Court of Common Pleas of Philadelphia County at Misc. 79/05-2355 is affirmed.

Disposition

Affirmed.


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