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COMMONWEALTH PENNSYLVANIA v. JOHNSTOWN TURN-VEREIN (01/28/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 28, 1983.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
JOHNSTOWN TURN-VEREIN, APPELLEE

Appeal from the Order of the Court of Common Pleas of Cambria County in the case of In the Matter of Revocation of Club Liquor License No. C-411, issued to Johnstown Turn-Verein, 632 Railroad Street, Johnstown, Pa. 15901, No. C-Misc. 1981-52.

COUNSEL

J. Leonard Langan, Chief Counsel, for appellant.

No appearance for appellee.

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

Author: Crumlish

[ 71 Pa. Commw. Page 452]

The Pennsylvania Liquor Control Board (Board) appeals a Cambria County Common Pleas Court order which reversed Johnstown Turn-Verein's (licensee) liquor license suspension. We reverse.

The licensee, a club, was cited with a violation of the Liquor Code*fn1 which prohibits the sale of alcoholic beverages to non-members. After two refusals, an agent was served two drinks on his third visit. Based

[ 71 Pa. Commw. Page 453]

    on this violation, the Board ordered a seven-day license suspension.

In the trial court, by agreement, no additional testimony was heard. The licensee argued that the one violation was de minimis and could not sustain the penalty imposed.*fn2 The court agreed, but we must reverse.

Our scope of review is limited to a determination of whether this record supports the Board's action and whether the trial court abused its discretion or committed an error of law. Pennsylvania Liquor Control Board Appeal, 49 Pa. Commonwealth Ct. 255, 261, 411 A.2d 1258, 1259 (1980). The trial court did abuse its discretion by concluding that, because the proved violation was de minimis, it did not justify this penalty. In Road Drivers' Association of Pennsylvania Liquor License Case, 30 Pa. Commonwealth Ct. 323, 326, 373 A.2d 1161, 1163 (1977), we sustained a license revocation, holding that the sale of alcoholic beverages to non-club members was indeed a serious offense.

Moreover, it is well settled that a common pleas court may not change a penalty except when it has made significant and materially different findings from the Board. In Re: The Boardwalk, Inc., 70 Pa. Commonwealth Ct. 416, A.2d (1982). Here, the trial court made no findings materially different from the Board. A finding that the severity of the penalty was in issue is error until our Legislature or our Supreme Court orders otherwise. We must hold that this constituted an abuse of discretion.

Reversed.

[ 71 Pa. Commw. Page 454]

Order

The order of the Cambria County Common Pleas Court, No. C-Misc. 1981-52, dated September 30, 1981, is reversed and the suspension reinstated.

Disposition

Reversed.


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