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DENNIS J. GIANNILLI AND LOUIS J. LOTTO (04/27/84)

decided: April 27, 1984.

IN RE: DENNIS J. GIANNILLI AND LOUIS J. LOTTO, GINO'S PIZZA PALACE ETC. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT


Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of In Re: Dennis J. Giannilli and Louis J. Lotto, Gino's Pizza Palace, No. 80 Civil of 1982.

COUNSEL

Felix Thau, Associate Counsel, with him Patrick M. McHugh, Deputy Chief Counsel, and Gary F. DiVito, Chief Counsel, for appellant.

Gregory T. Nichols, for appellees.

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

Author: Macphail

[ 82 Pa. Commw. Page 143]

The Pennsylvania Liquor Control Board (PLCB) has appealed from an order of the Court of Common Pleas of Westmoreland County which reversed the PLCB's denial of a restaurant liquor license application filed by Dennis J. Giannilli and Louis J. Lotto, t/a Gino's Pizza Palace (Applicants).

The subject of the liquor license application is an existing fast-food restaurant located on Route 119 in the Borough of South Greensburg. Since the Borough's quota of one license for the retail sale of alcoholic beverages has already been exceeded,*fn1 Applicants sought to employ the "resort area" exception

[ 82 Pa. Commw. Page 144]

    to obtain their license. See Section 461(b) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-461. Following a hearing, the PLCB denied the application based on its findings that the restaurant is not located in a resort area and that the need for an additional restaurant liquor license in the Borough had not been established.

On appeal, the court of common pleas conducted a hearing de novo pursuant to Section 464 of the Code, 47 P.S. § 4-464. In its decision the court noted evidence that the subject restaurant is strategically located along a major traffic artery through the Laurel Highlands, a highly promoted area for tourism which includes all of Westmoreland County. The court also noted that municipalities surrounding the Borough of South Greensburg had previously been found to constitute resort areas and that to deny the Borough such status would create an isolated island surrounded by declared resort areas. The court, accordingly, found that the Borough is a resort area.

Regarding the issue of necessity, the court found that the Applicants' restaurant fulfills a need different from other licensed establishments in the Borough which are more formal and expensive. The court also focused on the fact that no similar establishments exist along Route 119 between Greensburg and New Stanton and that such a licensed facility is needed along that major thoroughfare. The court concluded that necessity had been demonstrated and ordered that the license be granted. The instant appeal followed.

[ 82 Pa. Commw. Page 145]

Our scope of review is limited to a determination of whether the trial court committed an error of law or abuse of discretion and whether or not the PLCB's order is supported by sufficient evidence. Parks v. Page 145} Pennsylvania Liquor Control Board, 44 Pa. Commonwealth Ct. 87, 403 A.2d 628 (1979). The discretion to determine whether a municipality is located within a resort area is clearly vested in the PLCB by Section 461(b) of the Code. In order for the PLCB's decision to be set aside by the courts, there must be a clear abuse of ...


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