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COMMONWEALTH PENNSYLVANIA v. REGINA P. KOLETAS (08/21/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 21, 1984.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
REGINA P. KOLETAS, T/A CHARLES RESTAURANT, APPELLEE

Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Pennsylvania Liquor Control Board v. Regina P. Koletas t/a Charles Restaurant, No. Misc. 431, July 1983.

COUNSEL

Felix Thau, Assistant Counsel, with him, Gary F. DiVito, Chief Counsel, for appellant.

Francis Recchuiti, for appellee.

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

Author: Doyle

[ 84 Pa. Commw. Page 583]

This is an appeal by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Montgomery County which reversed the Board's suspension of a restaurant liquor license.

Pursuant to a citation issued against the Charles Restaurant of Bryn Mawr, Pennsylvania (Licensee), the Board conducted a hearing in which it found that the licensee's establishment was not a bona fide restaurant under Section 102 of the Liquor Code (Code),*fn1 because the premises contained an insufficient number of chairs to accommodate at least thirty persons at one time.*fn2 Accordingly, the Board suspended the licensee's

[ 84 Pa. Commw. Page 584]

    restaurant liquor license, amusement permit, and Sunday sales permit for a period of one day, and thereafter until the violations could be corrected.

The licensee appealed the Board's suspension, and a de novo hearing was held before the court of common pleas. At the hearing, the court sustained the appeal without accepting any evidence from the Board, due to the Board's failure to designate a provision in the Liquor Code upon which the suspension could be based.*fn3 On appeal to this Court, the Board argues that the trial court erred in sustaining the appeal without conducting an evidentiary hearing and without making specific findings of fact and conclusions of law.*fn4 We agree.

The appeal from a Board's decision in a license suspension case is governed by Section 471 of the Liquor Code, 47 P.S. ยง 4-471, which states, in pertinent part:

[ 84 Pa. Commw. Page 585]

Upon appeal, the court so appealed to shall, in the exercise of its discretion, sustain, reject, alter or modify the findings, conclusions and penalties of the board, based on the findings of Page 585} fact and conclusions of law as found by the court. (Emphasis added.)

This section has been interpreted to mean that the trial court on appeal is required to hold hearings de novo, make its own findings of fact and conclusions of law and then in the exercise of its own discretion either sustain, reverse, or modify the action taken by the Board. Pennsylvania Liquor Control Board Appeal, 56 Pa. Commonwealth Ct. 601, 426 A.2d 173 (1981).

We must therefore remand this matter and direct that an evidentiary hearing be held, and that findings of fact and conclusions of law be made.

Order

Now, August 21, 1984, the order of the Court of Common Pleas of Montgomery County, No. Misc. 431 July 1983, dated October 5, 1983, is hereby vacated, and the matter remanded to said court for proceedings consistent with this opinion. Jurisdiction relinquished.

Disposition

Vacated and remanded.


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