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BOARDWALK (12/20/82)

decided: December 20, 1982.

IN RE: THE BOARDWALK, INC. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: The Boardwalk, Inc., appealing from the Order of the Pennsylvania Liquor Control Board, Citation No. 942, 1979, No. SA 992 of 1979.

COUNSEL

Gary F. DiVito, Assistant Counsel, with him J. Leonard Langan, Chief Counsel, for appellant.

No appearance for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 70 Pa. Commw. Page 417]

With respect to the power of a court of common pleas to revise or reduce a penalty imposed by the Pennsylvania Liquor Control Board, the established rule is that the common pleas court may effect a change in penalty only when it has made significant and materials changes in the findings of the board. Pennsylvania Liquor Control Board v. Latrobe Armed Services Association, 16 Pa. Commonwealth Ct. 199, 329 A.2d 549 (1974); Pennsylvania Liquor Control Board v. Washington Sporting Club, 13 Pa. Commonwealth Ct. 257, 320 A.2d 851 (1974).

This case presents a variation on the theme. The question is: Where the common pleas court finds that action taken by the Liquor Control Board in a case lacks factual foundation, may the court reduce the penalty imposed by the board in a subsequent case

[ 70 Pa. Commw. Page 418]

    involving a different violation, which the court finds to have been factually established, where the board's penalty decision in the later case was partly weighted by an express reference to the earlier violation?

Here the licensee, The Boardwalk, Inc., had been fined $200 by the board for an alleged 1978 insufficient-food violation at Citation No. 226. In a distinctly separate case, Citation No. 942, the board later found the licensee guilty of a 1979 insufficient-food violation and also guilty, in the same month, of serving minors; for the 1979 offenses, the board imposed a three-day license suspension, expressly noting that the board "has also considered" the record of Citation No. 226 "and the penalty imposed thereon," as presented in evidence in the second case.

After the licensee took separate appeals to the Common Pleas Court of Allegheny County, the court proceeded to hear the 1978 offense first, and the trial judge sustained a demurrer to the evidence, thus eliminating the $200 fine arising from the 1978 offense.

Proceeding thereafter with the hearing on the 1979 violations, the trial judge then fully sustained the factual basis for those violations, but he changed the three-day suspension for the 1979 violations to a fine of $500, noting on the record that:

[I]n view of the fact that the first citation presented to the Board has been, in effect, dismissed by the Court, there is a material change in the ...


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