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COMMONWEALTH PENNSYLVANIA v. ESTATE HELEN T. MCBRIDE (02/25/81)

decided: February 25, 1981.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
ESTATE OF HELEN T. MCBRIDE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Estate of Helen T. McBride v. Pennsylvania Liquor Control Board, No. 301 Misc. Docket, 1979.

COUNSEL

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

Carl G. Wass, Caldwell, Clouser & Kearns, for appellee.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 57 Pa. Commw. Page 80]

The Pennsylvania Liquor Control Board (Board) appeals from an order of the Court of Common Pleas of Dauphin County reversing an order of the Board which refused the transfer of a liquor license.

Here, an application for transfer of a restaurant liquor license was filed pursuant to Section 468(a) of the Liquor Code, Act of April 12, 1915, P.L. 90, as amended, 47 P.S. § 4-468(a), following governmental exercise of the right of eminent domain.

After a hearing, the Board, by opinion and order dated August 31, 1979, refused the application for transfer making the following pertinent finding of fact: "3. The proposed licensed premises are located within 300 feet of the Rescue Fire Company No. 1."

Upon appeal to the court of common pleas, a de novo hearing was held on November 30, 1979. Thereafter, the lower court reversed the order of the Board and granted the requested transfer. In so doing, the

[ 57 Pa. Commw. Page 81]

    court below adopted the findings of fact submitted by counsel for the appellee, including finding of fact No. 11 which states:

11. The Corporate Charter of Rescue Fire Company No. 1 does not identify any of its purposes as charitable and no testimony was presented which would indicate Rescue Fire Company No. 1 is a "charitable institution" within the meaning of Section 432*fn1 of the Liquor Code. On the other hand, one of its purposes, stated in its Corporate Charter, is the "fellowship of its members", a purpose not inconsistent with the objectives of the Applicant.

Section 404 of the Liquor Code, 47 P.S. § 4-404, provides that in determining the propriety of a license transfer "the [B]oard may, in its discretion, grant or refuse such . . . transfer if such place proposed to be licensed is within three hundred feet of any church, hospital, ...


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