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COMMONWEALTH PENNSYLVANIA v. CHARLES WEINER (10/09/86)

decided: October 9, 1986.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
CHARLES WEINER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia, in case of Charles Weiner v. Pennsylvania Liquor Control Board, No. 2769 August Term, 1984.

COUNSEL

Kenneth W. Makowski, Assistant Counsel, with him, Gary F. DiVito, Chief Counsel, for appellant.

F. Emmett Fitzpatrick, F. Emmett Fitzpatrick, P.C., for appellee.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Colins concurs in the result only.

Author: Barbieri

[ 101 Pa. Commw. Page 236]

In this liquor license case, the Pennsylvania Liquor Control Board (PLCB) appeals here an order of the Court of Common Pleas of Philadelphia County. That order reversed a PLCB adjudication rescinding approval of an application for transfer of a restaurant liquor license filed by Charles Weiner and ordered Weiner to properly post notice of the application on the proposed licensed premises. We reverse.

The pertinent facts are as follows. Weiner filed an application for a transfer of a restaurant liquor license with the PLCB on February 9, 1983. The PLCB granted conditional approval for the transfer on May 18, 1983. The PLCB approval was conditioned only upon the physical completion of the proposed licensed premises at 1910 Cheltenham Avenue in Philadelphia.

Subsequent to the PLCB's conditional approval, a number of neighborhood residents brought suit alleging Weiner failed to post notice of the pending liquor license

[ 101 Pa. Commw. Page 237]

    application on 1910 Cheltenham Avenue during the period the application was pending. Posting of such notice is required by Section 403(g) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-403(g), and the PLCB's regulations at 40 Pa. Code § 3.11. On October 17, 1983, this Court, pursuant to an oral stipulation of counsel, remanded the matter back to the PLCB for a hearing limited to the issue of whether Weiner properly posted notice of his pending liquor license application. The PLCB conducted an extensive hearing after which it found Weiner had in fact not properly posted notice of the pending application. As a result of that finding, on July 16, 1984, the PLCB rescinded its prior approval of Weiner's application and directed him to properly post notice of the application with a further hearing to be held if protests were filed. Weiner appealed the PLCB order to Philadelphia Common Pleas Court which heard the matter de novo. After taking testimony and reviewing the record made before the PLCB, the common pleas court reversed the PLCB's adjudication and found Weiner had properly posted notice of the pending application and directed the PLCB to issue Weiner a restaurant liquor license. The PLCB has appealed that order to this Court.

In this appeal, the PLCB contends: (1) the common pleas court had no appellate jurisdiction over its adjudication of July 16, 1984; (2) the common pleas court went beyond its scope of review of a PLCB adjudication dealing with a liquor license transfer application and substituted its judgment for that of the PLCB by improperly making factual findings different from the PLCB based upon evidence substantially similar to that presented before the PLCB; and (3) the common pleas court improperly based its conclusion that the PLCB abused its discretion upon the court's different credibility determinations on substantially similar evidence. We shall discuss

[ 101 Pa. Commw. Page 238]

    these issues seriatim. Our scope of review, however, where the common pleas court has heard the matter de novo, is limited to determining whether there is substantial evidence to support the common pleas court's findings and whether the common pleas court committed an error of law or abused its discretion. ...


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