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GRANTING REQUEST FOR TRANSFER A RESTAURANT LIQUOR LICENSE ETC. JOHN T. CHIAVAROLI (11/10/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 10, 1982.

IN RE: GRANTING OF REQUEST FOR THE TRANSFER OF A RESTAURANT LIQUOR LICENSE ETC. JOHN T. CHIAVAROLI, MARIE V. CHIAVAROLI AND MILDRED SANDERS, T/A THE NICKELODEON, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Northumberland County in the case of In Re: Granting of Request for the Transfer of a Restaurant Liquor License of John T. Chiavaroli, Marie V. Chiavaroli and Mildred Sanders, t/a The Nickelodeon, Misc. No. 79-82.

COUNSEL

Vincent V. Rovito, Jr., Rovito & Rovito, for appellants.

Frank J. Konopka, Lark, Makowski, Marateck & Konopka, for appellees.

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

Author: Macphail

[ 70 Pa. Commw. Page 2]

This matter, involving the transfer of a restaurant liquor license, is before us for the second time. Following an earlier consolidated appeal to this Court by the Pennsylvania Liquor Control Board (Board) and John T. Chiavaroli, Marie V. Chiavaroli and Mildred Sanders t/a The Nickelodeon (Applicants), we reversed an order of the Court of Common Pleas of Northumberland County and remanded for further proceedings. Chiavaroli Liquor License Case, 54 Pa. Commonwealth Ct. 588, 422 A.2d 1195 (1980). The court of common pleas order then under review had reversed a Board decision granting Applicants' request for the transfer of a restaurant liquor license. On remand the court accepted additional evidence and reaffirmed its prior decision by entering an order which again reversed the Board. Applicants subsequently filed the instant appeal.*fn1 We affirm.

The facts of this case and the evidence presented prior to our remand have been adequately summarized in Chiavaroli Liquor License Case and need not not be repeated here. In short, the Board originally granted Applicants' requested transfer despite

[ 70 Pa. Commw. Page 3]

    the fact that the proposed restaurant site was within 300 feet of a church and a municipal park plot. The Board also concluded that the transfer would not adversely affect the welfare, peace and morals of residents of the neighborhood within a 500 foot radius of the proposed site.*fn2 On appeal, the court of common pleas conducted a de novo hearing where it was revealed, by stipulation, that the proposed site was also within 300 feet of a second church, the Grace Evangelical Lutheran Church. The pastor of that church, Reverend Souders, testified before the court of common pleas and the court concluded that his testimony, together with the evidence heard by the Board, was sufficient to establish that the transfer would adversely affect the health, welfare, peace and morals of inhabitants of the neighborhood within 500 feet of the premises proposed to be licensed. Thus, the court determined that the additional testimony of Reverend Souders supported its reversal of the Board. In Chiavaroli Liquor License Case, we ruled that the court of common pleas had erred in basing its reversal on the testimony by Reverend Souders and set forth the reasons for our conclusion in that respect.

The law in this area is clear. The trial court may reverse the Board only when the Board has committed a clear abuse of discretion or when additional facts are adduced at the de novo hearing which vary significantly from those presented to the Board. Application of Barone, 43 Pa. Commonwealth Ct. 446, 403

[ 70 Pa. Commw. Page ]

Page 4On remand, the trial court admitted a stipulation into the record which reveals the exact distances between the two churches and the proposed restaurant site, as well as their distances from the originally licensed premises. Of particular importance here is the fact that the Grace Lutheran Church is 227 feet from the proposed site while it was 430 feet from the previous license location. With regard to the location of the second church, the trial court stated on remand as follows:

We find, therefore, that there are two (2) churches within Three Hundred (300') feet of the proposed site, rather than the one acknowledged by the Liquor Control Board. It is our determination that these additional facts vary significantly from those presented to the Board, and justify a substituting of this Court's discretion.

We agree and, accordingly, will affirm the order of the trial court.

Order

It is ordered that the order of the Court of Common Pleas of Northumberland County, dated May 29, 1981, Misc. No. 79-82, is hereby affirmed.

Disposition

Affirmed.


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