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COMMONWEALTH PENNSYLVANIA v. J.P.W.G. (03/27/85)

decided: March 27, 1985.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
J.P.W.G., INC, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Pennsylvania Liquor Control Board v. J.P.W.G., Inc., t/a/d/b/a The Seven Knights, SA 52-1983.

COUNSEL

Eileen Maunus, with her, Patrick M. McHugh, Deputy Chief Counsel and Gary F. DiVito, for appellant.

Robert T. Kane, for appellee.

Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr., did not participate in the decision in this case.

Author: Macphail

[ 88 Pa. Commw. Page 386]

The Pennsylvania Liquor Control Board (Board) appeals to this Court from an order of the Court of Common Pleas of Allegheny County which sustained the appeal of J.P.W.G., Inc. (Licensee) from an order of the Board imposing a fine of $500.00 upon the Licensee for permitting gambling and improper entertainment on the premises.*fn1

We must observe that the trial judge entered two orders in this case. In his bench order of February

[ 88 Pa. Commw. Page 38724]

, 1983, at the conclusion of a de novo hearing the judge said:

Having made findings of fact which are substantially different than those made by the Board, I will modify the fine imposed by the Board. Instead of $500.00 fine imposed, I will impose a fine of $200.00 for the finding of fact made by the Board and affirmed by this court as to the gambling.

On March 17, 1983, the same trial judge entered the following order:

And now, this 17th day of March 1983, the above Appeal having come on for hearing, upon consideration thereof, it is hereby ordered that the Appeal of the Defendant is sustained and the opinion and order of the Pennsylvania Liquor Control Board is reversed. Opinion of this Court is stated on the record.

It is readily apparent that both orders cannot be correct. Inasmuch as the trial court found as a fact that "there was a payoff for points scored on the poker machine and this constitutes gambling," we are well satisfied that the order of March 17, 1983 inadvertently overlooked that part of the prior bench order regarding gambling and the finding of fact made from the bench. Because we find that there was substantial evidence to support the court's conclusion of gambling, we will consider in this appeal the order of February 24, 1983 ...


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