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MICHAEL J. HORAN v. COMMONWEALTH PENNSYLVANIA (05/26/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 26, 1987.

MICHAEL J. HORAN, AN INDIVIDUAL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, AND PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENTS

Original jurisdiction in the case of Michael J. Horan v. Commonwealth of Pennsylvania, and Pennsylvania Liquor Control Board.

COUNSEL

Joseph DiPaolo, with him, Michael C. George, Ferris, DiPaolo & Russo, for petitioner.

Thomas B. York, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, Office of Attorney General.

President Judge Crumlish, Jr., Judge Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 106 Pa. Commw. Page 322]

Michael J. Horan has filed an action for declaratory judgment*fn1 in this Court's original jurisdiction*fn2 challenging the constitutionality of the Act of February 28, 1985, P.L. 1 (Act 1985), which prohibited tournaments

[ 106 Pa. Commw. Page 323]

    within premises licensed by the Pennsylvania Liquor Control Board (PLCB). The Commonwealth and the PLCB have filed preliminary objections, which are before the Court at this time. We sustain the preliminary objections and dismiss Horan's complaint.

In his complaint, Horan avers that he is engaged in the business of operating tournaments in this Commonwealth and that the enactment of Act 1985 violated his rights to equal protection and due process of law.*fn3 Horan does not allege that he owns a liquor license. Act 1985 repealed former Section 476 of the Liquor Code,*fn4 which permitted tournaments in licensed premises.

The Commonwealth and PLCB assert four grounds in support of their preliminary objections: (1) failure to state a cause of action (demurrer); (2) lack of standing to raise the claims asserted; (3) failure to join indispensable parties (licensed premises); and (4) ripeness.

Turning to the Commonwealth's demurrer, we note that preliminary objections in the nature of a demurrer

[ 106 Pa. Commw. Page 324]

    are not to be sustained unless the law says with a certainty that no recovery is possible and the complaint is clearly insufficient to establish any right to relief. Allegheny County v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985). All well-pleaded, material, relevant facts found in the complaint and every inference fairly deducible therefrom are admitted as true by the objector. Id.

Act 1985 regulates the operation of tournaments in licensed establishments. Tournaments are prohibited except for those organized on the behalf of charitable organizations and conducted in areas removed from alcohol.*fn5 Horan alleges that he was injured because he is not permitted to continue operating his tournament business in establishments licensed by the PLCB.

In Replogle v. Pennsylvania Liquor Control Board, Pa. , 523 A.2d 327 (1987), our Supreme Court recently restated the well-settled principle that the legislature may impose such conditions upon the granting of liquor licenses as it sees fit. Pa. at , 523 A.2d at 330. Thus, the regulation of tournaments on licensed premises is well within the legislature's discretion. Moreover, the loss of an opportunity for business income tied to a liquor license is not compensable where there is no property taken for public use. Id.

Accepting all averments in Horan's complaint as true, we hold that he fails to state a cause of action upon which relief can be granted.*fn6 The Commonwealth and PLCB's preliminary objections are granted.

[ 106 Pa. Commw. Page 325]

Order

After argument and upon consideration of the respondents' preliminary objections and petitioner's reply thereto, it is ordered that the preliminary objections are granted and Horan's action for declaratory judgment is dismissed.

Disposition

Preliminary objections sustained. Complaint dismissed.


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