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COMMONWEALTH PENNSYLVANIA v. PITTSBURGH PUBLIC THEATER CORPORATION (05/04/83)

decided: May 4, 1983.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
PITTSBURGH PUBLIC THEATER CORPORATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Pittsburgh Public Theater Corporation v. Pennsylvania Liquor Control Board, No. SA 150 of 1982.

COUNSEL

Kenneth W. Makowski, with him, Gary DiVito, Patrick M. McHugh, Assistant Counsel, and J. Leonard Langan, Chief Counsel, for appellant.

Roslyn M. Litman, Litman, Litman, Harris & Portnoy, P.A., for appellee.

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

Author: Macphail

[ 74 Pa. Commw. Page 119]

Before this Court is the appeal of the Pennsylvania Liquor Control Board (Board) from an order of the

[ 74 Pa. Commw. Page 120]

Court of Common Pleas of Allegheny County in a matter which might appropriately be called "the case of the mixed-up modifier." For the reasons which follow, we affirm.

Pittsburgh Public Theater Corporation (PPT) is a nonprofit performing arts group in the city of Pittsburgh. On August 7, 1981, PPT applied to the Board for the transfer of a restaurant liquor license to a city-owned theater facility, having a seating capacity of approximately 350 persons, which PPT occupies under a rent-free lease with the city. The Board denied the transfer application on the basis that the facilities did not provide a minimum seating capacity of 1000. The Common Pleas Court reversed on the grounds that the facilities were not subject to a minimum seating requirement.

The resolution of this case depends upon the interpretation to be given to Section 408.7(a) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, added by Section 3 of the Act of December 12, 1980, P.L. 1195, 47 P.S. ยง 4-408.7(a). Section 408.7(a) provides, in pertinent part:

The board is authorized to transfer a restaurant liquor license purchased by any person . . . for the retail sale of liquor and malt or brewed beverages . . . for consumption on any city-owned premises utilized as a performing arts facility or any other premise [sic] utilized as a performing arts facility where there is an available seating capacity within the premises of one thousand or more . . .

As is readily apparent, the above-quoted provision is susceptible to two interpretations. The Board contends that the clause "where there is an available seating capacity within the premises of one thousand ...


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