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BJJ ENTERPRISES v. COMMONWEALTH PENNSYLVANIA (10/02/84)

decided: October 2, 1984.

BJJ ENTERPRISES, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in the case of Pennsylvania Liquor Control Board v. BJJ Enterprises, Inc., Misc. No. 81-02-2434; Misc. No. 81-02-2435; Misc. No. 81-02-2438; and Misc. No. 81-07-2473.

COUNSEL

Idee C. Fox, for appellant.

Gary F. DiVito, Chief Counsel, for appellee.

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

Author: Palladino

[ 85 Pa. Commw. Page 373]

Before us are the consolidated appeals of BJJ Enterprises, Inc. (Appellant) from a decision of the Court of Common Pleas of Philadelphia County which affirmed the Pennsylvania Liquor Control Board's (Board) revocation of Appellant's liquor license. We shall consider each appeal in turn.

[ 85 Pa. Commw. Page 374]

No. 79 C.D. 1982

Appellant, the holder of restaurant liquor license No. R-4115, was issued a citation by the Board which alleged that Appellant had served alcoholic beverages from the licensed premises on two occasions while its license was suspended. The Board revoked Appellant's license after considering its past record of violations.

Appellant appealed to the Philadelphia Court of Common Pleas (trial court) which conducted a de novo hearing and subsequently affirmed the Board. On appeal Appellant argues that it was not aware of the effective license suspension period. This Court's scope of review in liquor license revocation appeals where there was a de novo proceeding before the trial court, is to determine whether the trial court committed an error of law or an abuse of discretion. James Alston, Inc. v. Pennsylvania Liquor Control Board, 71 Pa. Commonwealth Ct. 216, 455 A.2d 228 (1983). After hearing testimony from both parties concerning the posting of Appellant's suspension notice on the licensed premises, the court found the Board's witnesses to be more credible and concluded that Appellant was aware of its license suspension when it served alcoholic beverages. The court also noted that since there were four (4) violations of the Liquor Code*fn1 (Code) within a four year period, a suspension or revocation was required under Section 471 of the Code.

Questions of evidentiary weight and credibility are exclusively within the trial court's discretion and are not reviewable by this Court absent an abuse of that discretion. In the Matter of Revocation of Restaurant Liquor License No. R-18291 and Amusement Permit No. AP-18291, 46 Pa. Commonwealth Ct. 537, 408 A.2d 164

[ 85 Pa. Commw. Page 375]

(1979). Inasmuch as conflicting testimony was received from both sides on this issue, the court properly exercised its discretion in choosing one ...


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