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COMMONWEALTH PENNSYLVANIA v. JIMMY PAUL'S INC. (05/08/84)

decided: May 8, 1984.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
JIMMY PAUL'S INC., T/A JIMMY'S FAMILY RESTAURANT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of In Re: Appeal of Patricia Paul, t/d/b/a Jimmy's Family Restaurant, No. 35 Civil, 1982.

COUNSEL

Eileen S. Maunos, Assistant Counsel, with her, Felix Thau, Assistant Counsel, and Gary F. DiVito, Chief Counsel, for appellant.

Carmine V. Molinaro, Jr., with him, Mary Ann Czajkowski, Molinaro Law Offices, and Gregory T. Nichols, for appellee.

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 82 Pa. Commw. Page 281]

The Pennsylvania Liquor Control Board appeals an order of the Court of Common Pleas of Westmoreland County, which reversed the board's refusal of an application for a new restaurant liquor license and provisional Sunday sales permit filed by Jimmy Paul's, Inc., trading as Jimmy's Family Restaurant.

[ 82 Pa. Commw. Page 282]

The court of common pleas heard the matter de novo under section 464 of the Liquor Code,*fn1 47 P.S. ยง 4-464. The trial court may not substitute its discretion for that of the board and may reverse only if the board has committed a clear abuse of discretion or when the court finds de novo facts varying from those found by the Board. Darlene Bar, Inc. v. Pennsylvania Liquor Control Board, 51 Pa. Commonwealth Ct. 274, 414 A.2d 721 (1980). In order to justify a substitution of discretion, the additional facts adduced before the court on appeal must vary significantly from those presented to the board. Chiavaroli Appeal, 54 Pa. Commonwealth Ct. 588, 422 A.2d 1195 (1980).

Our review of the record indicates that the additional evidence presented to the trial court did not vary significantly from that presented to the board, but was cumulative, with the same witnesses offering testimony quite similar to that presented to the board. Nevertheless, the trial court concluded that the board abused its discretion by finding that the applicant's premises were not located within a resort area, and ordered the board to issue the requested license. We must determine whether substantial evidence supports the trial court's findings, and whether the trial court abused its discretion or erred as a matter of law. Daras Appeal, 65 Pa. Commonwealth Ct. 456, 442 A.2d 859 (1982).

Jimmy's Restaurant is located in East Huntingdon Township, about one and one-quarter miles south of Mt. Pleasant in Westmoreland County. At the time of application, East Huntingdon had exceeded its statutory quota of four retail liquor licenses, with six restaurant licenses issued and counted against the quota. In addition, one hotel liquor license and one

[ 82 Pa. Commw. Page 283]

    catering club license, which are not counted against the quota, were in effect.

Jimmy Paul's applied for its liquor license, arguing that it is located in a resort area and therefore falls within the resort area exception set forth ...


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