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COMMONWEALTH PENNSYLVANIA EX REL. J. CHRISTIAN NESS v. KEYSTONE SIGN (03/03/86)

submitted: March 3, 1986.

COMMONWEALTH OF PENNSYLVANIA EX REL. J. CHRISTIAN NESS, DISTRICT ATTORNEY OF YORK COUNTY PENNSYLVANIA
v.
KEYSTONE SIGN, CO., INC. T/A/TRIANGLE TAVERN, STEVEN H. SCHIDING, DIONYSIOS TOMBORIS, WILLIAM BENSON FRY AND MARIE L. FRY, HIS WIFE. APPEAL OF KEYSTONE SIGN CO., INC. T.A. TRIANGLE TAVERN AND DIONYSIOS TOMBORIS



Appeal from the Judgment entered September 16, 1985 in the Court of Common Pleas of York County, Civil Division, at No. 85-SU-3052-07.

COUNSEL

William C. Kollas, Lemoyne, for appellant.

J. Christian Ness, Assistant District Attorney, York, for Commonwealth, appellee.

Wickersham, Watkins and Cercone, JJ.

Author: Watkins

[ 355 Pa. Super. Page 564]

This case comes to us on appeal from the Court of Common Pleas of York County and involves defendant-appellant's appeal from an order of the court below which granted the district attorney's request for an injunction pursuant to Section 6-611 of the Liquor Code, 47 Pa.C.S.A. 6-611. The court below ordered the appellant's licensed liquor establishment closed for a period of one year because it found the establishment to be a nuisance.

The York County District Attorney brought an equity action against defendant pursuant to Section 6-611 of the Liquor Code. Part (a) of that section provides as follows:

"Any room, house, building, boat, vehicle, structure or place, except a private home, where liquor, alcohol, or malt or brewed beverages are manufactured, possessed, sold, transported, offered for sale, bartered or furnished, or stored in bond, or stored for hire, in violations of this act, and all such liquids, beverages and property kept or used in maintaining the same, are hereby declared to be common nuisances, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to the same penalties provided in section four hundred ninety four of this act."

Defendant argues that said section does not apply to licensed establishments. He contends that the words "in violation of this Act" exclude licensed premises from inclusion in those establishments to which this Act applies citing several rules of statutory construction and the legislative history of the section which he maintains was meant to outlaw speakeasies. The Commonwealth cites Section 1-104(a) of the Liquor Code which states:

"This act shall be deemed an exercise of the police power of the commonwealth for the protection of the public welfare, health, peace, and morals of the people of the Commonwealth and to prohibit forever the open saloon, and all of the provisions of this act shall be liberally construed for the accomplishment of this purpose."

[ 355 Pa. Super. Page 565]

The Commonwealth argues that the phase "in violation of this Act" is not confined to those acting without a license, but is intended to encompass any violation under the Liquor Code.

No appellate court cases are cited which decide whether Section 6-611 of the liquor Code applies only to non-licensees or whether it applies to nuisances created by either licensees or non-licensees so long as some violation of the Liquor Code is proven. There are, ...


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