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MATTER REVOCATION DISTRIBUTOR LICENSE NUMBER D-3562 ISSUED TO ELEMAR (10/08/82)

decided: October 8, 1982.

IN THE MATTER OF REVOCATION OF DISTRIBUTOR LICENSE NUMBER D-3562 ISSUED TO: ELEMAR, INC., T/A THRIFTY BEVERAGE. IN THE MATTER OF REVOCATION OF DISTRIBUTOR LICENSE NUMBER D-3526 ISSUED TO: GARRETT HILL BEVERAGE COMPANY, INC., T/A THRIFTY BEVERAGE. IN THE MATTER OF REVOCATION OF DISTRIBUTOR LICENSE NUMBER D-3567 ISSUED TO: RAIL SPLITTER, INC., T/A THRIFTY BEVERAGE. APPEAL OF ELEMAR, INC., GARRETT HILL BEVERAGE COMPANY, INC., RAIL SPLITTER, INC.


No. 405 January Term, 1979, Appeal from the Order of July 27, 1979 of the Commonwealth Court of Pennsylvania at Nos. 67 and 123 C.D. 1978, Remanding to Court of Common Pleas of Lancaster County at License Docket No. 1, Pages 93, 94 and 95, 1972.

COUNSEL

Roger L. Mutzel, Chadds Ford, for appellant.

John H. Bream, Harrisburg, for Pa. Tavern Assoc.

John G. Knorr, III, Dep. Atty. Gen., for Liquor Control Bd., amicus curiae.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Larsen and McDermott, JJ., concur in the result. Nix and Hutchinson, JJ., file dissenting opinions.

Author: Roberts

[ 499 Pa. Page 10]

OPINION

Appellants, licensees of the Pennsylvania Liquor Control Board ("Board"), appeal from an order of the Commonwealth Court affirming an order of the Court of Common Pleas of Lancaster County which made absolute a rule to show cause why the Board should not be held in contempt for failing to enforce an order of suspension entered by the Board against appellants in August of 1972. On this record the order of the Commonwealth Court must be reversed and the matter remanded to the Board for proceedings consistent with this opinion.*fn1

The procedural history of this case is long and complex. On May 8, 1972, the Board issued citations against appellants, charging each of them with having permitted a person with an interest in another distributorship to have an interest in its business, a violation of the Liquor Code. Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-436(f) and

[ 499 Pa. Page 11]

§ 4-438(b) (1969 and Supp. 1982-83). Following an administrative hearing on August 25, 1972, the Board determined that appellants were in fact operating in violation of the Code and entered an order suspending each of appellants' licenses for a period of twenty-one days and thereafter until all persons except appellants had been divested of all interest in the licensed premises.

Appellants appealed to the Court of Common Pleas of Lancaster County. On October 19, 1973, after hearing the case de novo, the court sustained the Board's findings and decision and entered an order identical to that of the Board. Appellants then appealed to the Commonwealth Court. On August 19, 1974, while these appeals were pending, appellants and the Board entered into a stipulation and agreement under which appellants agreed to withdraw their appeals and to redraft their management agreements in a manner acceptable to the Board. In turn, the Board agreed, upon appellants' performance of the provisions of the stipulation, to reconsider the disposition of the citations it had previously issued. Appellants withdrew their appeals, redrafted their agreements, and then filed a petition for reconsideration and modification of penalty with the Board.

On December 10, 1974, appellees Pennsylvania Tavern Association and P.U.B.L.I.C., associations comprised of appellants' competitors, brought an action in mandamus in the Commonwealth Court, seeking to compel the Board to enforce the original suspension order. While the mandamus action was pending, the Board granted appellants' petition for reconsideration and, on February 3, 1975, issued an amended order vacating its original order and imposing upon each appellant in lieu of suspension a fine of $1,000, the maximum permitted under the Liquor Code. See 47 P.S. § 4-471.

[ 499 Pa. Page 12]

On February 10, 1976, the Commonwealth Court held that the Board lacked the authority to modify its suspension order after it had been judicially reviewed and thus granted appellees' requested relief in mandamus, directing the Board to reinstate its original order of suspension. Pennsylvania Page 12} Tavern Association v. Pennsylvania Liquor Control Board, 23 Pa. Commw. 264, 352 A.2d 221 (1976). On appeal, this Court reversed the order of the Commonwealth Court in a decision in which three opinions were filed. 472 Pa. 567, 372 A.2d 1187 (1977). A plurality per curiam opinion, in which three justices joined, found mandamus to be improper because an adequate remedy at law was available to appellees by way of a petition to the court of common pleas to enforce its own order sustaining the license suspensions. Justice Eagen concurred in the result. This writer, joined by then Chief Justice Jones, concurred in the reversal but would have dismissed the action on the ground that appellee associations lacked standing to maintain a mandamus action against the Board. Justice Manderino dissented, arguing that, although appellees did have standing, the Board had the power to modify its earlier order.

On October 3, 1977, appellees filed a petition in the court of common pleas for a rule to show cause why a citation for contempt should not be issued against the Board for its failure to enforce its original order of suspension. The court granted appellants' petition to intervene and, following a hearing, made the rule absolute on December 27, 1977. Appellants appealed to the Commonwealth Court, which, after determining that the rule absolute was an appealable order, affirmed the ruling of the trial court. Elemar, Inc. Liquor License Case, 44 Pa. Commw. 515, 404 A.2d 734 (1979).

On August 27, 1979, appellants filed a timely petition for allowance of appeal to this Court, as well as an application for a stay of the Commonwealth Court's order. Two days later, on August 29, the Board complied with the order of the Commonwealth Court and reinstated its original order of suspension. The Board, however, did not attempt to enforce its order. On September 25, 1979, the court of common pleas held the Board in civil contempt for failing to enforce its reinstated order and held that the Board could purge itself by immediately obtaining possession of appellants' licenses. On the following day, September 26, this Court

[ 499 Pa. Page 13]

    granted appellants' petition for allowance of appeal and issued a stay of the contempt citation.

Initially, we reject appellees' argument that this appeal should be dismissed as moot because the Board reinstated its original order of suspension in August of 1979. As the reinstatement was entered only in response to the order of the Commonwealth Court and has not been enforced, an actual controversy continues to exist. See generally In re Gross, 476 Pa. 203, 382 A.2d 116 (1978).

On this record, we must likewise reject appellants' argument that appellees were without standing to institute the contempt proceeding in the court of common pleas. In this Court's first decision in this case, the three justices joining the plurality opinion stated:

"In our view, an adequate remedy was available to the appellees in this action [(Pennsylvania Tavern Association and P.U.B.L.I.C.)] by way of a petition to the Lancaster County Court to enforce its order sustaining the license suspension imposed by the Board."

Pennsylvania Tavern Association v. Pennsylvania Liquor Control Board, supra, 472 Pa. at 571, 372 A.2d at 1189. Although the question of appellees' standing was not expressly resolved, it must be concluded from the above statement that the plurality opinion implicitly found appellees to have standing to maintain the present action. When the view of Justice Manderino that "appellees do have standing," id., 472 Pa. at 581, 372 A.2d at 1193 (Manderino, J., dissenting), is added to the view of the three justices joining in the plurality opinion, it is apparent that a majority of the Court found that appellees could properly maintain the action that is the basis of this appeal. Accordingly, on this record, appellants' challenge to appellees' standing must be denied.

Unlike the issue of appellees' standing, the question of whether the Board had the authority to modify its original order following affirmance of that order by the court of common ...


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