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B.D.B. v. COMMONWEALTH PENNSYLVANIA (06/04/82)

decided: June 4, 1982.

B.D.B., INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of B.D.B., Inc. v. Pennsylvania Liquor Control Board, No. SA 374 of 1980.

COUNSEL

Richard Wile, for appellant.

J. Leonard Langan, Chief Counsel, for appellee.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 67 Pa. Commw. Page 73]

B.D.B., Inc. seeks reversal of an order of the Court of Common Pleas of Allegheny County affirming two orders of the Liquor Control Board suspending B.D.B.'s restaurant liquor license for 35 days.

The Board found, after hearings, that the B.D.B. had sold alcoholic beverages, and permitted dancing and/or entertainment on its premises, during hours when such conduct was prohibited on the Sundays July 27, November 16 and November 23, 1980, violations of Section 406(a) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-406(a), and 40 Pa. Code § 5.35(a).

The court below conducted a consolidated de novo hearing at which Liquor Board enforcement agents testified in detail as to their observations of activities at the licensed premises at the times in issue.

The licensee argues that the testimony of the Board's witnesses was inadmissible hearsay and the lower court erred in failing to exclude it. It contends that both witnesses testified solely from notes without the Board's counsel laying a proper foundation for the admission of the contents of those notes pursuant to the recorded recollection exception to the hearsay rule.*fn1 Its argument is misplaced. B.D.B.'s trial counsel did not object to this testimony when it was adduced; indeed, he neither objected to nor moved to strike the testimony of one of the witnesses, and moved to strike the testimony of the Board's other witness only after the completion of both direct and cross-examination of that witness.

[ 67 Pa. Commw. Page 74]

It is well established that hearsay evidence, admitted without objection, is accorded the same weight as evidence legally admissible as long as it is relevant and material to the issues in question. . . .

Once evidence is admitted, it is well settled: "Where either party to a proceeding discovers at any time that improper testimony has been inadvertently admitted, he may have the error corrected by applying to the court to have the evidence stricken. . . . As a rule, such motion will be allowed only in cases where the ground of objection was unknown and could not have been known with ordinary diligence at the time ...


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