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decided: May 21, 1984.


Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of Theodore Laukemann, Jr., t/d/b/a Countryside Inn v. Pennsylvania Liquor Control Board, No. 1181 Civil, 1983.


Dusan Bratic, for appellant.

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

Judges Craig, Barry and Blatt, sitting as a panel of three. Opinion by Judge Craig. Judge Hoffer's sound decision is affirmed.

Author: Craig

[ 82 Pa. Commw. Page 503]

The proprietor of the Countryside Inn has appealed from an order by Judge Hoffer, of the Court of Common Pleas of Cumberland County, affirming the Pennsylvania Liquor Control Board's suspension of the Inn's liquor license, for violation of section 493(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 4-493(1), which prohibits the furnishing of liquor or malt beverages to any person "visibly intoxicated."

In a hearing de novo before the trial court, a Liquor Control Board enforcement officer testified that, while observing for a period of more than an hour, he saw alcoholic beverages served to three persons who, in his view, were visibly intoxicated. The agent described one person as loud and boisterous, staggering and as having difficulty lighting a cigarette. The second person was, according to the agent, also staggering, with bloodshot eyes and poor coordination as indicated by the fact that he bumped into several patrons. The agent described the third person as being slurred in his speech and also as staggering and having difficulty in lighting a cigarette.

As the issues on appeal, we must consider if the evidence of the violation was insufficient, and whether the trial judge erred in rejecting some expert medical testimony which the licensee offered.

[ 82 Pa. Commw. Page 504]

Inc. v. Rullo, 289 Pa. Superior Ct. 230, 433 A.2d 40 (1981).

The licensee offered the testimony of a physician who had no firsthand knowledge. The physician was not present at the time of the violation. His testimony was not based upon any examination of the individuals alleged to have been visibly intoxicated, as distinguished from the medical opinion testimony admitted for the purpose of rebutting evidence of intoxication in Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959), or in the common pleas court cases cited on behalf of the licensee.

As the licensee's brief states the issue, the physician

     should have been permitted to give his opinion as to whether the vague descriptions provided by the agent were sufficient to permit an impartial observer to determine by a fair preponderance of the evidence that the persons in question were visibly intoxicated at the time they were served.

The proposed testimony -- that other physical and medical conditions or afflictions can produce staggering, bloodshot eyes and like manifestations -- constituted a mere recitation of possibilities, amounting to an abstract speculation having no utility beyond belaboring the obvious.

Essentially, the offered opinion testimony represented an effort to attack the rule that the opinion of a lay observer is admissible to prove a state of intoxication, a rule too well established to be invalidated in such a manner.

Moreover, we know of no principle of evidence which authorizes the impeachment of a witness through a recitation of alternative possibilities by an expert, nor has the licensee cited any authority for such a proposition.

[ 82 Pa. Commw. Page 506]

Finally, in defining the violation as the dispensation of alcoholic beverages to a person "visibly intoxicated," the statute displays considerable logic in placing stress upon what can be seen. The law does not hold a licensee or its agent responsible on any basis, such as the blood alcohol level of a patron, which would not be externally apparent; instead, the law decrees that the alcoholic beverage dispenser shall not provide more alcohol when the signs of intoxication are visible. The practical effect of the law is to insist that the licensee be governed by appearances, rather than by medical diagnoses. The wisdom of the legislative approach is plain.

Judge Hoffer's sound decision is affirmed.


Now, May 21, 1984, the order of the Court of Common Pleas of Cumberland County, dated June 3, 1983, is affirmed.




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