Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Dilworthtown Inn, Inc. v. Pennsylvania Liquor Control Board, No. 2326 January Term, 1979, PLCB Appeal 766 C.D. 1979.
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 the appellee.
Judges MacPhail, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 58 Pa. Commw. Page 203]
This is an appeal from an order of the court of common pleas which sustained an appeal from a Pennsylvania Liquor Control Board (Board) decision imposing a $350 fine on the appellant, Dilworthtown Inn, Inc. (Dilworthtown). We reverse.
[ 58 Pa. Commw. Page 204]
On March 21, 1978, pursuant to a valid search warrant, police searched the Dilworthtown Inn, a licensed tavern owned and operated by Dilworthtown, and discovered several slips of paper which suggested that illegal sports betting and "tallying work" was being conducted on the premises. A Board investigation followed, and thereafter, Dilworthtown was notified to show cause why it should not be fined or why its license should not be suspended or revoked and its bond forfeited. Following a hearing on this matter, the Board concluded that Dilworthtown had indeed maintained gambling devices and/or paraphernalia in its tavern and imposed a $350 fine. Notice of this opinion and order, sent to Dilworthtown, also advised that if the fine was not paid within 20 days of notice the Board would be compelled by Section 471 of the Liquor Code (Code),*fn1 Act of April 12, 1951, P.L. 90, as Page 204} amended, 47 P.S. § 4-471, to suspend or revoke Dilworthtown's license.
On January 4, 1979, some 37 days after the issuance of the Board's order, Dilworthtown filed an appeal without paying the fine. Four days later, on January 8, 1979, the Board issued a new order suspending Dilworthtown's license for a period of seven days, effective on February 6, 1979, for failure to pay the $350 fine. The Board subsequently revoked this suspension order on January 29, 1979, and reimposed the $350 fine pending the outcome of Dilworthtown's appeal.
When the matter came before the court of common pleas on March 19, 1979, the Board moved for the appeal to be quashed as untimely. In support of this motion the Board argued that Section 471 of the Code required Dilworthtown to file its appeal within 20 days of the Board's order imposing the fine, and that Dilworthtown's appeal was therefore 17 days late. Dilworthtown opposed this motion by arguing that its appeal was not from the Board's order imposing the fine, but instead was from the Board's suspension order. The Board countered by arguing that Section
[ 58 Pa. Commw. Page 205471]
does not permit appeals from mandatory suspension orders, and noted that Dilworthtown's appeal was filed before the issuance of the Board's suspension order in any event. After considering these arguments, the court concluded that Section 471 permits appeals from suspension orders, and stated that the parties should agree to treat this appeal as if it were filed after the issuance of a Board suspension order. The court then denied the Board's motion to quash and granted the Board a continuance until March 22, 1979.
On March 22, 1979, the Board once again made a motion to quash. The court denied the motion and once again stated that the parties should agree to treat Dilworthtown's appeal as if it were filed after the issuance of a suspension order for the purpose of filing an appeal to this Court. Dilworthtown's ...