Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Re: Stephen G. Churma & Duane Churma t/a Mosside Beverages Company, No. S.A. 455 of 1987.
Faith S. Diehl, Assistant Counsel, for appellant.
Brenda B. Betts, Papernick & Gefsky, P.C., for appellees.
Judges Barry and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.
[ 115 Pa. Commw. Page 491]
The Pennsylvania Liquor Control Board (Board) appeals from an order of the Court of Common Pleas of Allegheny County which vacated the penalty imposed by the Board on Stephen G. Churma and Duane Churma, t/a Mosside Beverages Company (licensee). The licensee was cited for selling beer to a minor in violation of Section 493(1) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(1).
Two Board Enforcement Officers observed Robert J. Palumbi enter the licensed premises empty-handed and leave carrying a case of beer. One of the officers approached Mr. Palumbi who revealed that he was fifteen years of age. Upon questioning of an employee of the licensee the officer learned that Mr. Palumbi had produced a Pennsylvania driver's license indicating that he was of legal age. The officer found no such driver's license following a search of Mr. Palumbi.
The licensee was cited and a Board hearing was held following which an order was entered imposing a suspension
[ 115 Pa. Commw. Page 492]
on the licensee for ten days. The licensee appealed the Board's order to the trial court which held a de novo hearing. The trial court reversed the Board's order and the Board has appealed to this Court.
Our scope of review, where the trial court has heard the appeal de novo, is limited to determining whether the trial court has abused its discretion or committed an error of law and whether the adjudication and order of the Board are supported by substantial evidence. Pennsylvania Liquor Control Board v. S & B Restaurants, Inc., 112 Pa. Commonwealth Ct. 382, 535 A.2d 709 (1988). We find that the trial court has committed an error of law and accordingly, reverse its order.
The trial court heard the testimony, inter alia, of the licensee's employee who sold the beer to Mr. Palumbi. He testified that Mr. Palumbi produced a driver's license indicating that he was of legal age. Mr. Palumbi, however, testified that he had purchased the beer without being asked his age and without producing any proof of his age. The trial court found the employee's testimony to be more credible than that of Mr. Palumbi and concluded that a driver's license indicating that Mr. Palumbi was of legal age had been produced. The trial court sustained the licensee's appeal on this basis.
We have repeatedly held that the only defense to a violation of Section 493 of the Code is a demonstration of compliance with all of the statutory requirements of Section 495 of the Code, 47 P.S. § 4-495. GTRT, Inc. Liquor License Case, 78 Pa. Commonwealth Ct. 584, 467 A.2d 1233 (1983), Pennsylvania Liquor Control Board v. Schiaffo, 72 Pa. Commonwealth Ct. 305, 456 A.2d 1120 ...