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RUM SELLER v. COMMONWEALTH PENNSYLVANIA (11/17/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 17, 1983.

RUM SELLER, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE

Appeal from the Order of the Court of Common Pleas of Lackawanna County in the case of In Re: Appeal of Rum Seller, Inc., from Pennsylvania Liquor Control Board, No. 81 Misc. 344.

COUNSEL

Brian J. Cali, for appellant.

Felix Thau, Assistant Counsel, with him J. Leonard Langan, Chief Counsel, for appellee.

Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 78 Pa. Commw. Page 415]

Rum Seller, Inc. (licensee) appeals from an order of the Court of Common Pleas of Lackawanna County affirming a decision of the Pennsylvania Liquor Control Board (Board) revoking*fn1 the licensee's restaurant liquor license effective January 11, 1982 and forfeiting its bonds for license years beginning the first of August 1978, 1979 and 1980 and ending, respectively, the thirty-first of July 1979, 1980 and 1981.

[ 78 Pa. Commw. Page 416]

The Board made the following findings:

1. The licensed corporation was not the only one pecuniarily interested in the operation of the licensed business, during the period April 1, 1979 to February 10, 1981.

2. The licensee, by its servants, agents or employes did permit its Wholesale Liquor Purchase Permit Card to be used illegally, during the period April 18, 1979 to January 16, 1981.

3. The licensee falsified its Application for Restaurant Liquor License for the license year expiring July 31, 1981, on May 5, 1980.

4. The licensee's Board-approved manager, Rosemarie Henson, failed to devote full time and attention to the operation of the licensed business, during the period April 1, 1979 to February 10, 1981.

5. The licensee's Board-approved manager, Rosemarie Henson, was employed by other than the licensed corporation, during the period June, 1979 to January 20, 1981.

The Board, in deciding to revoke the license considered the licensee's record of prior citations*fn2 and the

[ 78 Pa. Commw. Page 417]

    penalties imposed therefor, and the common pleas court, after a de novo hearing, adopted all of the Board's factual findings and affirmed the revocation order.

In a liquor license revocation proceeding our scope of review where, as here, the matter was heard de novo by the trial court, is limited to a determination of whether the order appealed from was supported by sufficient evidence and whether the trial court committed an error of law or abused its discretion. New Sorrento, Inc. v. Pennsylvania Liquor Control Board, 64 Pa. Commonwealth Ct. 422, 424, 440 A.2d 676, 677 (1982) (citations omitted).

The licensee's sole contention is that sufficient evidence does not support the trial court's findings of fact. Specifically, the Board enforcement officer's testimony regarding the nature, extent and duration of the involvement of Rosemarie Hensons' licensee's sole corporate officer during the period in question (and, according to the liquor license renewal application for the license year ending July 31, 1981, "the only person pecuniarily interested in the business") is rejected, by the licensee, as inadmissible hearsay.*fn3

Although subpoenaed by the Board, Mrs. Henson did not appear at the common pleas court hearing. A Board enforcement officer then proceeded to testify from his interview with Mrs. Henson held on January 20, 1981. The testimony, objected to by counsel for licensee, established that at the time of the interview,

[ 78 Pa. Commw. Page 418]

    the licensee's sole corporate officer (1) had not been involved with the licensee's business operations since February 1979; (2) had moved to New Jersey and had twice visited the business premises between February 1979 and January 20, 1981; and (3) had been continually employed by a bridal salon from June 1979 to January 20, 1981. Based upon such testimony the trial court found that Mrs. Henson was not alone pecuniarily interested in the operation of the business (in violation of Section 404 of the Code, 47 P.S. § 4-404);*fn4 that Mrs. Henson falsified the liquor license application for the license year expiring July 31, 1981 (in violation of Section 471 of the Code);*fn5 and, that Mrs. Henson, as purported manager, failed to devote full time and attention to the business' operation and was employed by other than the licensee (in violation of Section 5.16 of Board regulations, 40 Pa. Code § 5.16).

We believe that sufficient evidence exists upon which the trial court's findings could be supported. Under Pennsylvania law, "admissions by an officer of a company who stands in a position of authority are competent and binding on the company for whom he speaks." Western Union Telegraph Co. v. N.C. Direnzi, Inc., 442 F. Supp. 1, 4 (E.D. Pa. 1977) (citations

[ 78 Pa. Commw. Page 419]

    omitted). Rosemarie Henson's statements to the Board's enforcement officer, uttered while she was the licensee's sole corporate officer,*fn6 are thus admissible against the licensee as admissions of a corporate officer standing in a position of authority. Id.

The enforcement officer's testimony therefore constitutes evidence sufficient to support the trial court's findings and order revoking the licensee's restaurant liquor license. Accordingly, we affirm.

Order

And Now, this 17th day of November, 1983, the order of the Court of Common Pleas of Lackawanna County, dated April 6, 1982, is affirmed.

Disposition

Affirmed.


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