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APPEAL TO COMMONWEALTH COURT PENNSYLVANIA FROM ORDER COURT COMMON PLEAS WARREN COUNTY (05/03/84)

decided: May 3, 1984.

IN RE: APPEAL TO THE COMMONWEALTH COURT OF PENNSYLVANIA FROM THE ORDER OF THE COURT OF COMMON PLEAS OF WARREN COUNTY, PA. ETC. LOUIS PAUL PESANTE, T/A LOUIS PESANTE RESTAURANT, APPELLANT


Appeal from the Order of the Court of Common Pleas of Warren County in case of In Re: Appeal from decision of Pennsylvania Liquor Control Board refusing Application for a New Restaurant License by Louis Paul Pesante t/a Louis Pesante's Restaurant, Kane Road, R.D. 1, P.O. Box 883, Sheffield, Pennsylvania, No. 439 of 1981.

COUNSEL

Edward P. Zemprelli, with him, Robert V. Campedel, Zemprelli, Clipper and Campedel, for appellant.

Eileen S. Maunus, Assistant Counsel, with her, Gary F. DiVito, Chief Counsel, for appellee.

Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge MacPhail dissents.

Author: Williams

[ 82 Pa. Commw. Page 244]

In June of 1981, the Pennsylvania Liquor Control Board (Board) entered a decision denying the application of Louis P. Pesante for a restaurant liquor license. When the Board's decision was affirmed by the Court of Common Pleas of Warren County, Pesante filed the instant appeal from the trial court's order.

On December 30, 1980, Louis Pesante applied to the Board for a retail liquor license, to be used in connection with a new, "family-style" restaurant he was proposing to build in Sheffield Township, Warren County. According to Mr. Pesante, his restaurant would have plush appointments, table service and piped-in music; would be open seven days a week; and would be a place to which an entire family could go. At the time of Pesante's application, Sheffield Township had a legal quota of one retail liquor license, as was mandated by the terms of Section 461(a) of the Liquor Code (Code).*fn1 There were two existing restaurant liquor licenses, which counted against the Township's quota. In addition, there were three hotel liquor licenses, one club license, and one club retail dispenser license: none of which counted against the quota.

Although the municipality's quota was already exceeded, Mr. Pesante based his application on Section 461(b) of the Code,*fn2 which provides that: "The [B]oard shall have the power to increase the number of licenses in any such municipality which in the opinion of the [B]oard is located within a resort area." (Emphasis added.)

At a hearing before the Board, Pesante presented testimonial and epistolary evidence intended to support his contention that Sheffield Township is a resort

[ 82 Pa. Commw. Page 245]

    area, and that there is an actual need for the type of licensed establishment he proposed. Pesante's evidence notwithstanding, the Board rejected his application on the grounds that (1) he had failed to show convincingly that the location of the proposed restaurant is in a resort area, and (2) he had failed to demonstrate an actual need for an additional retail liquor license in the Township. Pesante followed with an appeal to the Court of Common Pleas of Warren County, which heard the matter de novo.

In the proceedings before the trial court, Pesante again adduced testimonial evidence and some of the letters he had presented at the Board hearing. According to the applicant's evidence, Sheffield Township is in the center of Allegheny Federal Forest; and is 16 miles from the Kinzua Dam, around which camping grounds and other recreational facilities have been created. A witness who worked at the Kinzua Dam testified that more than a million people visited that site in 1980, the year in which Pesante applied for a liquor license. This witness added that Sheffield Township is one of the major approaches to the Kinzua Dam. Trout streams and hunting grounds were also included on the list of recreational attractions in or accessible from the Township.

Additional testimony on behalf of Pesante represented that, in 1980, the population of Sheffield Township increased from 2,655 to over 6,000 during the "tourist season," which was described as extending from the beginning of the fishing season in April to the end of the hunting season in December. Pesante himself testified that there were 1496 assessed properties in the Township, and that 20% of them were owned by seasonal visitors. Another Pesante witness, ...


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