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CENTRUM PRIME MEATS v. COMMONWEALTH PENNSYLVANIA (02/04/83)

decided: February 4, 1983.

CENTRUM PRIME MEATS, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Centrum Prime Meats, Inc. v. Pennsylvania Liquor Control Board, No. 80-10-2414.

COUNSEL

Lawrence J. Richette, for appellant.

Gary F. DiVito, Associate Counsel, with him J. Leonard Langan, Chief Counsel, for appellee.

Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 71 Pa. Commw. Page 561]

This case involves an appeal from a common pleas court determination that the Pennsylvania Liquor Control Board (Board) did not abuse its discretion when it denied an application for a liquor license transfer under the pertinent provisions of Section 404 of the Pennsylvania Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 4-404.*fn1

In February, 1980, The Walnut Tree, Inc. applied for the transfer of an Eating Place Retail Dispenser License,*fn2 to be used at The Corner, a delicatessen located at 1034 Spruce Street, Philadelphia, Pennsylvania. That application was approved by the Board effective August 6, 1980. On April 15, 1980, Centrum

[ 71 Pa. Commw. Page 562]

Prime Meats, Inc. (applicant) had filed an application, on a prior approval basis,*fn3 for a similar license transfer, to be used at 239-241 South 10th Street, Philadelphia, around the corner from The Corner delicatessen. A hearing on that application was held August 5, 1980, and the Board refused to grant the license transfer by order dated September 15, 1980.

The Board made three findings of fact*fn4 relative to that denial: (1) the applicant's premises are within 200 feet of other licensed establishments, (2) the said premises are within 300 feet of the Jefferson Hospital and the Wills Eye Hospital, and (3) granting the license would have an adverse effect on the welfare, health, peace, and morals of the neighborhood within a radius of 500 feet of the premises. The applicant appealed that decision to the common pleas court, which heard the appeal de novo.*fn5 At the hearing, the applicant presented no witnesses;*fn6 the record consists of the testimony of the Commonwealth's witnesses, who were extensively cross-examined by applicant's attorney,

[ 71 Pa. Commw. Page 563]

    the notes of testimony made before the Board hearing examiner, and various letters, documents, and signed petitions, both favoring and protesting the application. When the common pleas court decided that the Board had not exceeded its statutorily granted discretion in denying the license transfer, an appeal was filed in this Court.

Applicant argues before us: (1) that the Board was guilty of invidious discrimination because it approved a similar license transfer to The Corner deli, filed only two months prior to the applicant's; (2) that the determination of the Board that the health, welfare, and morals of the community would be adversely affected was not suported by the evidence; (3) that the Board abused its discretion and violated applicant's due process rights by burying within its decision its submission to political pressures ...


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