Appeal from the Order of the Commonwealth Court of Pennsylvania, No. 2467 C.D. 1985.
Richard S. Wilt, Huntingdon, for appellant.
Michael L. Harvey, Harrisburg, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
This case began when Douglas Steve Replogle, trading and doing business as Ye Olde Barn Lounge (Appellant) filed an action for a Declaratory Judgment and Supplemental Relief in the Commonwealth Court against the Pennsylvania Liquor Control Board (PLCB). Appellant's suit challenged the constitutional validity of the local option provision embodied in Section 472 of the Liquor Code. 47 P.S. § 4-472. The local option provision permits municipalities,
by referendum, to prohibit the sale of alcoholic beverages within their borders. The appellant sought to have the court declare Section 472 illegal and void on the grounds that: (1) it violates Article I, Section 10 of the Pennsylvania Constitution; (2) it violates the Fourteenth Amendment of the United States Constitution; and (3) it violates the Fifth Amendment of the Federal Constitution. The appellant also sought supplemental relief by way of a rule upon the PLCB to show cause why an order should not issue directing the PLCB to consider appellant's application for renewal of his restaurant liquor license pending resolution of the constitutional issues. In response to appellant's action, the PLCB filed preliminary objections in the nature of a demurrer. A panel of the Commonwealth Court (Craig, Palladino and Kalish, J.J.) sustained the demurrer and dismissed appellant's suit. Appeal to this court followed.*fn1 We now affirm.
The factual background of this case, as set forth in appellant's complaint and in his testimony,*fn2 is as follows:
The appellant was the owner of a restaurant -- lounge business which he operated under restaurant liquor license No. 20038 issued to him by the PLCB. The business was conducted in Penn Township, Huntingdon County, Pennsylvania under the trade name of Ye Olde Barn Lounge. Appellant acquired the retail liquor license in August, 1972. He opened for business under the license on April 1, 1977. Appellant was never cited for violating any provision of the Liquor Code and he renewed his license annually without incident. The appellant owns the real estate from which he operated the lounge. He purchased the property in order to get into the tavern business and over the years he invested about $150,000.00 in the realty in furtherance of his business.
At the primary election held on May 21, 1985 a referendum, pursuant to Section 472 of the Liquor Code, was voted on by the voters of Penn Township. A majority of the electorate voted to ban the granting or renewal of liquor licenses in the township, and according to section 472, the PLCB then was without authority to renew appellant's liquor license when it expired on January 31, 1986. Section 472 of the liquor code provides that a referendum may not be held in the same municipality ". . . oftener than once in four years . . ." 47 P.S. § 4-472. Because of this limitation, the question of liquor sales in the township could not come up for another vote ...