Appeal from the Order of the Court of Common Pleas of Cambria County, in the case of In Re: Margaret Abraham, Pyramids Lounge, Restaurant, Amusement Permit & Sunday Sales No. 3788, No. Misc. 1984-100, Liquor License Appeal.
Ken Skelley, Chief Counsel, with him, Eileen S. Maunus, Assistant Counsel, for appellant.
Robert Davis Gleason, Gleason, DiFrancesco, Shahade & Markovitz, for appellee.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 116 Pa. Commw. Page 271]
The Pennsylvania Liquor Control Board (LCB) appeals from an order of the Cambria County Court of Common Pleas sustaining the appeal of Margaret Abraham (Licensee) and dismissing the LCB citation which had resulted in a suspension of Licensee's liquor license for 21 days. We reverse and reinstate the suspension.
The LCB cited Licensee for violating section 493(1) of the Liquor Code*fn1 by permitting a minor to be furnished with an alcoholic beverage on February 3, 1984. A hearing was held before a hearing officer June 21, 1984. At that hearing, Mark James Lupo testified that on February 3, 1984 he was 19 years old and that he was helping to move chairs at Licensee's premises (Pyramids Lounge). Board hearing, N.T. at 5-6. He further testified that he drank alcoholic beverages while there which were provided him by a friend who was over 21. Id., N.T. at 6.
[ 116 Pa. Commw. Page 272]
On December 4, 1984, the LCB issued its decision. The LCB found that Licensee had permitted a minor to be furnished with alcoholic beverages on its premises. Because this was Licensee's third violation of the Liquor Code within a four year period,*fn2 the LCB suspended Licensee's license for a 21 day period.
Licensee appealed to the trial court. A de novo hearing was scheduled for April 21, 1987. At that time, the LCB presented the testimony of enforcement officer Gary Kennedy and assistant supervisor Joseph Molitierno. Kennedy testified that Lupo had moved to New York and that he had contacted Lupo by phone as to the date and time of the hearing. Trial court hearing, N.T. at 4-6. Kennedy also testified that he sent Lupo a subpoena by registered mail addressed to Lupo's residence, which Lupo refused, and by first class mail to Lupo's place of employment. Id., N.T. at 6. Molitierno testified that he had called Lupo on April 20, 1987 to ask if Lupo would be attending the hearing the next day and that Lupo told him he would not attend. Id., N.T. at 7-8.
After establishing what had been done to secure Lupo's attendance at the trial court hearing, the LCB offered into evidence the transcript of the notes of Lupo's testimony at the June 21, 1984 hearing before the LCB hearing officer. The LCB's offer of this evidence was made pursuant to section 5934 of the Judicial Code, 42 Pa. C. S. § 5934,*fn3 which permits the notes of
[ 116 Pa. Commw. Page 273]
testimony of a witness in a civil matter to be used in any civil matter dealing with the same issue if the witness is out of the jurisdiction, the party against whom the notes are offered had notice of the prior examination and had the opportunity to examine or cross-examine the witness. Licensee's counsel objected to the introduction of the transcript of Lupo's prior testimony. The trial court deferred ruling on the objection, stating that if ...