Appeal from the Order of the Court of Common Pleas of Carbon County in case of In Re: Jim Thorpe Borough Liquor Store Protest, No. 106 Misc. Dkt. 1983.
Felix Thau, Assistant Counsel, with him, Gary F. DiVito, Chief Counsel, for appellant.
Michael J. Garfield, Garfield & Zeigler, for appellees.
Judges MacPhail, Colins and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 83 Pa. Commw. Page 599]
The Pennsylvania Liquor Control Board (Board) appeals here from an order of the Court of Common Pleas of Carbon County which sustained a protest filed by certain taxpayers to the proposed relocation of a state liquor store in the Borough of Jim Thorpe. The appellees, in turn, have filed a motion to dismiss pursuant to Pa. R.A.P. 1972. We shall grant the motion to dismiss.
The taxpayers, alleging that the proposed site of the liquor store was too close to a church, filed their protest pursuant to the provisions of Section 301 of the Liquor Code (Code),*fn1 which reads in pertinent part as follows:
The Board shall establish, operate and maintain at such places throughout the Commonwealth as it shall deem essential and advisable, stores to be known as "Pennsylvania Liquor Stores" for the sale of liquor. . . . When the board shall have determined upon the location of a liquor store in any municipality, it shall give notice of such location by public advertisement. . . . If, within five days after the appearance of such advertisement, or of the last day upon which the notice was posted, fifteen or
[ 83 Pa. Commw. Page 600]
more taxpayers residing within a quarter mile of such location . . . shall file a protest with the court of common pleas of the county averring that the location is objectionable because of its proximity to a church, a school, or to private residences, the court shall forthwith hold a hearing affording an opportunity to the protestants and to the board to present evidence. . . . If the court shall determine that the proposed location is undesirable for the reasons set forth in the protest, the board shall abandon it and find another location. . . .
At the subsequent hearing on the protest, evidence was adduced concerning, inter alia, the proposed location of the liquor store and the activities of a church near the site. After evaluating this evidence, the court issued a decision in which it initially noted, citing Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982),*fn2 that it believed that Section 301 of the Code might violate the establishment of religion clause of the First Amendment. The court concluded, however, that it could not address this issue since it had not been raised by the parties. The court then sustained the taxpayers' protest on the ground that the proposed location of the liquor store was "immediately adjacent" to a church. The present appeal followed.
Before this Court, the sole issue*fn3 raised by the Board is whether Section 301 of ...