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INDEPENDENT STATE STORE UNION v. PENNSYLVANIA LIQUOR CONTROL BOARD (07/02/81)

decided: July 2, 1981.

INDEPENDENT STATE STORE UNION, ET AL., AND PENNSYLVANIA TAVERN ASSOCIATION, MAX M. MCCOMBS AND SANDRA LEE KEIM AND WINE INSTITUTE
v.
PENNSYLVANIA LIQUOR CONTROL BOARD, DANIEL W. PENNICK, CHAIRMAN, AND RALPH O. BARNETT, MARIO MELE, MEMBERS, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANTS



Nos. 80-2-318, 319 and 320, Appeal from the Decrees of the Commonwealth Court at Nos. 2155, 2153 and 2173 C.D. 1980, dated September 24, 1980.

COUNSEL

Andrew S. Gordon, Allen C. Warshaw, Deputy Atty. Gen., for appellants.

John H. Bream, Harrisburg, for appellee Pa. Tavern Assn.

John D. Killian, Harrisburg, for appellee Indep. State Store Union, et al.

Terry Bossert, Harrisburg, for appellee Wine Institute.

Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., and Wilkinson, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 495 Pa. Page 148]

OPINION OF THE COURT

The Pennsylvania Liquor Control Board appeals from decrees of a single judge of the Commonwealth Court granting applications for a preliminary injunction which prohibits the Board from carrying out its plan to implement a new pricing system for State Liquor Store merchandise. We conclude that the preliminary injunction was improperly issued. Hence we vacate the Commonwealth Court's decree and dismiss the applications.

I

The Liquor Code, from which the Board draws its authority,

"shall be deemed an exercise of the police power of this Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth and to prohibit forever the open saloon . . . ."

Act of April 12, 1951, P.L. 90, § 104(a), 47 P.S. § 1-104(a) (1969). The Code's stated purpose

"is to prohibit the manufacture of and transactions in liquor, alcohol and malt or brewed beverage which take place in this Commonwealth, except by and under the control of the [Liquor Control Board] as herein specifically provided, and every section and provision of the act shall be construed accordingly. The provisions of this act dealing with the manufacture, importation, sale and dispensation of liquor, alcohol and malt or brewed beverages within the Commonwealth through the instrumentality of the board and otherwise, provide the means by which such control shall be made effective."

Id., § 104(c), 47 P.S. § 1-104(c).

Included within the broad authority granted to the Board is the power "to fix the wholesale and retail prices at which liquors and alcohol shall be sold at Pennsylvania Liquor Stores . . . ." Id., § 207(b), 47 P.S. § 2-207(b) (Supp. 1981). The Board's power over pricing is limited by the proviso that

[ 495 Pa. Page 149]

"in fixing the sale prices, the board shall not give any preference or make any discrimination as to classes, brands or otherwise . . . ." Id. However, this proviso itself is limited by three exceptions:

(1) "except to the extent and for the length of time necessary to sell such classes or brands in compliance with any Federal action freezing or otherwise ...


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