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BATEMAN-GALLAGHER POST NO. 668 v. COMMONWEALTH PENNSYLVANIA (04/14/88)

decided: April 14, 1988.

BATEMAN-GALLAGHER POST NO. 668, HOME ASSOCIATION, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County, in the case of Bateman-Gallagher Post No. 668, Home Association v. Commonwealth of Pennsylvania Liquor Control Board, No. A-39-18 of 1986.

COUNSEL

James M. Pierce, Pierce & Caniglia, for appellant.

Felix Thau, Deputy Chief Counsel, for appellee.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 115 Pa. Commw. Page 350]

Bateman-Gallagher Post No. 668, Home Association (Appellant) appeals an order of the Court of Common Pleas of Delaware County upholding an order of the Liquor Control Board (LCB) suspending Appellant's liquor license for ten days. We affirm.

Edward H. Kelly, an enforcement officer for the LCB, conducted an investigation of Appellant's premises from March 28, 1984 to May 8, 1984. As a result of Kelly's investigation, Appellant was charged with five violations of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยงยง 1-101 to 9-902. The violations were: (1) selling alcoholic beverages to non-members; (2) permitting minors to frequent the premises; (3) selling alcoholic beverages to minors; (4) refilling state store liquor bottles; (5) permitting gambling, gambling devices, paraphernalia and/or lotteries on the premises. The LCB held a hearing on the alleged violations on February 27, 1985 and on December 12, 1985 issued its opinion and order. The LCB found that Appellant had committed the alleged violations and because it was Appellant's third citation within a period of four years,*fn1 imposed a ten day suspension of Appellant's liquor license.

Appellant appealed to the trial court which held a de novo hearing on June 8, 1987. At the end of the hearing, the trial court issued its decision from the bench. The trial court found Appellant had committed each of the five violations, dismissed Appellant's appeal, and upheld the LCB's ten day suspension of Appellant's liquor license.

[ 115 Pa. Commw. Page 351]

On appeal to this court, Appellant contends that the trial court's decision is not supported by sufficient evidence and that written applications of membership which require the applicants to attest to their age provides Appellant with a defense to the charge that it sold alcoholic beverages to minors when those minors are members who have completed such applications. Our scope of review where a Liquor Code violation is heard de novo by the trial court is limited to a determination of whether the trial court abused its discretion or committed an error of law and whether the LCB's order is supported by sufficient evidence. Acorn Club of Swissvale v. Pennsylvania Liquor Control Board, 93 Pa. Commonwealth Ct. 335, 500 A.2d 1296 (1985).

Sufficient Evidence

Appellant makes a general allegation that none of the trial court's findings are supported by sufficient evidence. It specifically contends that (1) a portion of Kelly's testimony in reference to gambling being conducted on the premises is hearsay, and (2) it was an abuse of discretion for the trial court to not have considered the testimony of a member of Appellant's Board of Directors, Jules Falcone, and Appellant's bar manager, Winfield Emlet, that use of the gambling machines located on the premises was not authorized or approved.

Initially, we note that questions of witness credibility and evidentiary weight are for the trial court, not this court, to resolve. In Re: Omicron Enterprises, 68 Pa. Commonwealth Ct. 568, 449 A.2d 857 (1982). Kelly, a non-member, testified to a number of occasions in which he entered Appellant's premises and purchased beer. While questioned about membership on some of those occasions, he was never refused service but ...


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