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JOSEPH FISHER v. COMMONWEALTH PENNSYLVANIA (11/15/85)

decided: November 15, 1985.

JOSEPH FISHER, INDIVIDUALLY, JOSEPH FISHER, T/D/B/A ARIEL VIEW INN, HARRY AND BETTE WILLIAMS, T/A LAKESIDE INN, PINE/WAYNE TAVERN OWNERS ASSOCIATION, INC.
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD AND RANDALL WOEHRLE, T/D/B/A KAY'S PIZZERIA AND ITALIAN RESTAURANT. RANDALL WOEHRLE, T/D/B/A KAY'S PIZZERIA AND ITALIAN RESTAURANT, APPELLANT



Appeal from the Order of the Court of Common Pleas of Wayne County in the case of Joseph Fisher, individually, Joseph Fisher, t/d/b/a Ariel View Inn, Harry and Bette Williams, t/a Lakeside Inn, Pike/Wayne Tavern Owners Association, Inc. v. Pennsylvania Liquor Control Board and Randall Woehrle, t/d/b/a Kay's Pizzeria and Italian Restaurant, No. 1453-Civil-1983.

COUNSEL

Peter W. Chapla, for appellant.

Felix Thau, with him, Mark S. Jennings, for appellee.

Judges Rogers and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 93 Pa. Commw. Page 64]

Randall Woehrle, the principal of Kay's Pizzeria and Italian Restaurant (petitioner), appeals here an order of the Court of Common Pleas of Wayne County reversing a decision of the Pennsylvania Liquor Control Board (Board). The Board had granted the petitioner a liquor license for his premises.

The petitioner filed an application for a new restaurant license for his establishment, located in Lake Township, Lake Ariel, Wayne County, when there were already four licenses in effect to be counted

[ 93 Pa. Commw. Page 65]

    against the Township's legal quota*fn1 of one retail liquor license. Accordingly, he sought the license pursuant to the "resort area" exception provided by Section 461(b) of the Liquor Code (Code),*fn2 which grants the Board power to increase the number of licenses in municipalities located in resort areas. The application was contested by protestants including Joseph Fisher, appearing individually and as the proprietor of the Ariel View Inn, a competing licensee who apparently resides on the same premises, which are within two hundred feet of the petitioner's location. Pursuant to the hearing examiner's recommendation, the Board found that the necessity for an additional restaurant liquor license had been established, and approved the liquor license application.

The common pleas court heard the matter de novo, and found that the Board had abused its discretion in granting the application. Inasmuch as the trial court received additional evidence and made its own findings of fact, our scope of review is limited to determining whether or not the trial court committed an error of law or abused its discretion, and whether or not there is substantial evidence in the record to support its findings of fact. Pennsylvania Liquor Control Board v. Spring Gulch, 87 Pa. Commonwealth Ct. 395, 487 A.2d 472 (1985).

In this appeal, the petitioner first contends that the trial court erred in assuming jurisdiction of the appeal from the Board. He argues that individual tavern owners, such as Mr. Fisher, may not appeal

[ 93 Pa. Commw. Page 66]

    the grant of a license to the court of common pleas, but that such appeals must be brought to this Court pursuant to In re: Family Style ...


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