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ROYLENE ASHMAN v. COMMONWEALTH PENNSYLVANIA (06/06/88)

decided: June 6, 1988.

ROYLENE ASHMAN, T/A ZACK'S PLACE, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT V. ROYLENE ASHMAN, APPELLEE



Appeals from the Order of the Court of Common Pleas of Luzerne County, in the matter of Revocation of Restaurant Liquor License No. R-13125, Amusement Permit No. R-AP-13125 issued to Roylene Ashman t/a Zack's Place, 70-72 South Main Street, Pittston, PA, No. 268 of 1987.

COUNSEL

Joseph J. Yeager, for appellant.

Faith S. Diehl, Assistant Counsel, with her, Kenneth B. Skelly, Chief Counsel, for appellee.

President Judge Crumlish, Jr., and Judges McGinley and Smith, sitting as a panel of three. Opinion by Judge McGinley. Judge Smith concurs in the result only.

Author: Mcginley

[ 116 Pa. Commw. Page 581]

The Court of Common Pleas of Luzerne County (trial court) by order dated March 30, 1987, dismissed

[ 116 Pa. Commw. Page 582]

    the appeal of Roylene Ashman (Licensee) of Citation No. 86-0284 and affirmed the finding of the Pennsylvania Liquor Control Board (PLCB) that Licensee served alcohol, malt and/or brewed beverages to a visibly intoxicated person in violation of Section 4-493(1) of the Pennsylvania Liquor Code (Code), 47 P.S. ยง 4-493(1),*fn1 but, reduced the penalty assessed by the PLCB. The PLCB appeals only the penalty modification. Licensee appeals the merits of the trial court's decision.

The controversy involves the trial court's adjudication at Citation No. 86-0284 and how that adjudication was affected or influenced by the trial court's adjudication of Citation No. 86-1373. On November 29, 1985, Licensee, owner of Zack's Place in Pittston, Pennsylvania, allegedly sold, furnished and/or gave liquor and/or malt or brewed beverages to a visibly intoxicated person. The PLCB imposed a $750 fine on Licensee. After hearing the trial court modified and reduced the fine from $750 to $350 at Citation No. 86-0284 because of the dismissal of an unrelated citation at No. 86-1373.*fn2

Our scope of review of a de novo appeal is limited to a determination of whether there is evidence to support the PLCB's order and whether or not the trial court

[ 116 Pa. Commw. Page 583]

    committed an error of law or abused its discretion. Hanover Bowling Center, Inc. v. Commonwealth of Pennsylvania, 101 Pa. Commonwealth Ct. 522, 516 A.2d 845 (1986). We conclude that the trial court erroneously modified the penalty imposed by the PLCB when it incorrectly considered the disposition of the unrelated citation.

The Legislature invested the PLCB with the power and duty to enforce the Code and part of that duty is to set penalties for proven violations.*fn3 The Pennsylvania Supreme Court and this Court have consistently held that absent materially and significantly different findings of fact from that of the PLCB, the Common Pleas Court may not modify the penalty imposed by the PLCB. Matter of Elemar, Inc., 499 Pa. 8, 451 A.2d 209 (1982), In Re: Carver House, Inc., 454 Pa. 38, 310 A.2d 81 ...


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