Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: The Matter of Revocation of Restaurant Liquor License No. R-7792 and Amusement Permit No. AP-7792, issued to Rosemarie Mancini, Mancini's Restaurant, 824-826 Island Avenue, McKees Rocks, Pa. 15136, No. SA 498 of 1981.
Jon C. Botula, for appellant.
Gary F. DiVito, Counsel, with him J. Leonard Langan, Chief Counsel, for appellee.
Judges Rogers, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Rogers.
[ 70 Pa. Commw. Page 438]
Rosemarie Mancini, the holder of a restaurant liquor license, appeals from an order of the Court of Common Pleas of Allegheny County sustaining in part an order of the Liquor Control Board (LCB) and fining her $200.00 for selling liquor to a minor. The trial judge ruled that the notes of testimony of the minor given in the hearing before the LCB were admissible
[ 70 Pa. Commw. Page 439]
at the hearing de novo conducted by the court at which the minor, invoking her privilege against self-incrimination, refused to testify.
The appellant licensee contests the trial judge's ruling that the notes of the minor's testimony were admissible at the court hearing, citing Section 5934 of the Judicial Code, 42 Pa. C.S. § 5934, which provides pertinently:
Whenever any person has been examined as a witness in any civil matter . . . if such witness afterwards . . . becomes incompetent to testify for any legally sufficient reason . . . properly proven notes of the examination of such witness shall be competent evidence in any civil issue. . . .
It is the appellant's thesis that although the minor invoked her privilege against self-incrimination and did not testify, she was nevertheless competent to testify, so that the statute making the notes competent evidence only where the witness is incompetent, must be read as making the notes of her testimony incompetent evidence. The licensee thus insists on a restrictive and limiting reading of the statute. In so doing she runs afoul of more than a hundred years of case law to the effect that Section 5934 and its predecessor enactments were not intended to limit the common law exception to the hearsay rule that the notes of testimony of a witness taken in a pending suit are admissible in a subsequent suit between the parties where the witness is unavailable or where, by reason of witness' interest or a claim of privilege, his testimony is unavailable.*fn1 5 J. Wigmore, Evidence § 1409 (Chadbourn rev. ed. 1974).
[ 70 Pa. Commw. Page 440]
Section 5934 of the Judicial Code is a reenactment of Section 9 of the Act of May 23, 1887, P.L. 89. The predecessor, in part, of the Act of 1887 was the Act of April 15, 1869, P.L. 31, permitting interested parties and persons to be witnesses and providing that their testimony might be perpetuated by deposition or commission, excepting, however, from its rule of admissibility the testimony of ...