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JAMES ALSTON v. COMMONWEALTH PENNSYLVANIA (01/17/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 17, 1983.

JAMES ALSTON, INCORPORATED, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE

Appeal from the Order of the Court of Common Pleas of Dauphin County in case of James Alston, Inc. v. Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board, Nos. 293 and President Judge Crumlish, Jr. and Judges Blatt and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 71 Pa. Commw. Page 217]

The Dauphin County Common Pleas Court, by order, dismissed James Alston, Inc.'s (licensee) single appeal from two orders of the Pennsylvania Liquor Control Board which revoked the restaurant liquor licenses of two of its establishments. We affirm.

The Board issued two citations, one for each premise. One charged the licensee with (1) furnishing false information regarding the sales of food and beverages in its application for a Sunday sales permit, (2) issuing checks for the purchase of malt or brewed beverages with insufficient funds available, and (3) pleading guilty to failure to remit Pennsylvania sales tax. The other citation charged the licensee with pleading guilty to failure to remit the sales tax.

After a hearing, the Board made findings of fact which substantiated these charges and issued two orders revoking each liquor license. The licensee appealed.

The licensee presented no evidence in its defense at the de novo hearing. The Board's evidence consisted of the prior license violations.

Our scope of review in the appeal of a de novo hearing order is limited to whether the trial court has committed an error of law or has abused its discretion. Pennsylvania Liquor Control Board v. Ronnie's Lounge, 34 Pa. Commonwealth Ct. 213, 383 A.2d 544 (1978).

We find no error or abuse of discretion in the disposition of this case since:

[ 71 Pa. Commw. Page 218]

[t]he law is clear that the lower court may not change or modify a penalty imposed on a licensee by the Board without making specific material changes in the facts as found by the Board.

Carver House, Inc. Liquor License Case, 454 Pa. 38, 41-42, 310 A.2d 81, 83 (1973) (quoting Pace Liquor License Case, 218 Pa. Superior Ct. 300, 302, 280 A.2d 642, 643-44 (1971)). Since the licensee presented no evidence in its defense at the de novo hearing, the court*fn1 could not make factual findings which deviated from the Board's findings.

Affirmed.

Order

The order of the Dauphin County Common Pleas Court, Nos. 293 & 294 Misc. 1979 dated December 13, 1979, dismissing the appeal of the licensee is hereby affirmed.

Disposition

Affirmed.


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