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1412 SPRUCE v. COMMONWEALTH PENNSYLVANIA (12/22/82)

decided: December 22, 1982.

1412 SPRUCE, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENT



Original jurisdiction in case of 1412 Spruce, Inc. v. Commonwealth of Pennsylvania, Liquor Control Board.

COUNSEL

Norman A. Oshtry, for petitioner.

A. Jay Molluso, Deputy Attorney General, Chief of Collections Section, with him J. Leonard Langan, and LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 70 Pa. Commw. Page 502]

Before us in this matter is the motion of petitioner 1412 Spruce, Inc. for summary judgment.

The petitioner is a corporation whose principal place of business was and whose corporate registered address is 1412 Spruce Street, Philadelphia, Pennsylvania. Upon its cessation of business it forwarded its restaurant liquor license to respondent Pennsylvania Liquor Control Board (PLCB) for safekeeping in accordance with standard PLCB procedures. Subsequently, the holder of an outstanding money judgment against the petitioner filed a writ of execution directing the Sheriff of Dauphin County to attach and publicly sell the petitioner's liquor license, and the PLCB, after being served with a copy of this writ as garnishee, gave the license to the Sheriff. At a public Sheriff's sale the license was sold for $95.14, and the PLCB then began the process of transferring or issuing the petitioner's license to the successful bidder. Meanwhile, the petitioner, having learned of the "sale," requested here a preliminary injunction to enjoin

[ 70 Pa. Commw. Page 503]

    the PLCB from transferring the license. After a hearing, this Court enjoined the PLCB as requested.

Summary judgment will be granted where there is no genuine issue of material fact remaining and where the movant is entitled to judgment as a matter of law. Burd v. Department of Transportation, 66 Pa. Commonwealth Ct. 129, 443 A.2d 1197 (1982). Both parties here agree that no genuine issue of fact remains, and that the legal question is: Does a restaurant liquor license, while in safekeeping with the PLCB, constitute "personal property" within the meaning of Pa. R.C.P. No. 3107*fn1 and, if so, is it therefore subject to the execution process?

The petitioner argues that Section 468(b.1) of the Liquor Code,*fn2 which refers to the placing of a license in safekeeping with the PLCB, leaves no doubt that the legislature intended that a liquor license be considered a privilege as opposed to a property right. This section in pertinent part provides: "[t]he license shall continue as a personal privilege granted by the board and nothing herein shall constitute the license as property." Id. (emphasis added). The petitioner further contends that Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. ยง 1921(b), would preclude any contrary construction of Section 468(b.1), because it directs that "when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."

The PLCB, however, argues that a liquor license has a status dependent upon the relationship of the parties involved. It ...


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