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JOSEPHINE E. ADAIR v. PENNSYLVANIA LIQUOR CONTROL BOARD. APPEAL MARY E. TERREGINO (07/28/88)

decided: July 28, 1988.

JOSEPHINE E. ADAIR, T/A/D/B/A T & R GRILL; MARY E. TERREGINO, INTERVENOR,
v.
PENNSYLVANIA LIQUOR CONTROL BOARD. APPEAL OF MARY E. TERREGINO, INTERVENOR. JOSEPHINE E. ADAIR, T/A/D/B/A T & R GRILL; MARY E. TERREGINO, INTERVENOR, V. PENNSYLVANIA LIQUOR CONTROL BOARD. APPEAL OF JOSEPHINE E. ADAIR, T/A/D/B/A T & R GRILL



Appeals from the Order of Commonwealth Court entered on October 1, 1986 at No. 3352 C.D. 1984, reversing the Order of the Court of Common Pleas of Crawford County, Civil Division, entered October 24, 1984, at No. A.D. 1983-746. Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., did not participate in the consideration or decision of this case.

Author: Larsen

[ 519 Pa. Page 105]

OPINION OF THE COURT

Before us in this appeal is the recurring question of the extent of the authority of the lower court to alter or modify a penalty imposed on a licensee by the Pennsylvania Liquor Control Board (Board). The Board, after finding that the appellant-licensee, Josephine E. Adair, trading as T & R Grill violated the laws of the Commonwealth and/or the regulations of the Board relating to liquor, alcohol and malt or brewed beverages, revoked appellant's restaurant liquor license. The appellant appealed to the Court of Common Pleas of Crawford County and, after a de novo hearing on July 31, 1984, that court reversed the decision of the Board and imposed a fine of two hundred dollars ($200.00) in place of the order of revocation.*fn1 On further appeal, this time by the Board, the Commonwealth Court reversed the lower court order and reinstated the Board's order revoking appellant's license. The Commonwealth Court held that the lower court may alter or modify action taken by the Board only when the lower court makes a finding of fact materially different from the findings of the Board.*fn2 The Commonwealth Court concluded that the lower court made no materially different finding of fact, therefore it had no authority to modify or change the penalty of revocation imposed by the Board. After reviewing the record we disagree, and now reverse.

[ 519 Pa. Page 106]

The evidence presented in this case established that beginning in August, 1981, and continuing for approximately one year, Pennsylvania State Trooper, Dennis Lagan, conducted an in depth undercover drug investigation in the Meadville, Crawford County, area. The appellant's T & R Grill was one of the many places he frequented.

On April 19, 1982, Trooper Lagan arrived at the T & R Grill at about 11:40 p.m. Working as a bartender that evening was Cindy McCormick, a young woman with whom Trooper Lagan had developed a relationship. He saw her socially after working hours 3 or 4 times a week. Trooper Lagan proceeded to the bar and had a conversation with Ms. McCormick. Ms. McCormick told him that she was upset because she and a friend put up $25 each to buy one-half (1/2) gram of cocaine. After the purchase she and her friend discovered that they received only one-quarter (1/4) gram. Trooper Lagan asked Ms. McCormick about the availability of additional cocaine.*fn3 He indicated that he was interested in obtaining one or two grams. Ms. McCormick, reacting to Trooper Lagan's inquiry, left the bar and checked with her friend who, at the time, was in the ladies restroom. She returned to the bar area and told Trooper Lagan that no more cocaine was available. She then handed him a package which contained five milligrams of cocaine -- enough for one "snort."*fn4 Trooper Lagan offered to pay for the cocaine, but Ms. McCormick refused to accept anything for it. She gave the cocaine to him as a gift, motivated by her affection for him. She was under the impression that Trooper Lagan was her "boyfriend," as her social and personal contacts with him led her to fall in love with him. Trooper Lagan, fulfilling his duties as a police officer, arrested Ms. McCormick and charged her with delivery of cocaine. Subsequently, she entered a plea of guilty to that charge.

[ 519 Pa. Page 107]

A report of the incident involving Ms. McCormick and the cocaine eventually made its way through law enforcement channels to the Pennsylvania Liquor Control Board. The Board conducted an investigation and as a result thereof issued a citation to the appellant-licensee. The citation charged:

You, by your servants, agents or employes, aided, abetted and engaged in the traffic in or sale of a controlled substance on the licensed premises and/or permitted the use of your licensed premises in the furtherance of the traffic in or use of a controlled substance: April 20, 1982.

A hearing on the charge was held on July 16, 1983 before C. Doyle Steele, Hearing Examiner for the Board. Following the hearing, the Board found that:

The licensee, her servants, agents or employes, aided, abetted and engaged in the traffic in or sale of a controlled substance on the licensed premises and/or permitted the use of her licensed premises in the furtherance of the traffic in or use of a controlled substance, on April 20, 1982 . . . .

Further, the Board found that the licensee violated the laws of the Commonwealth of Pennsylvania and/or the regulations of the Board relating to liquor, alcohol and malt or brewed beverages, and that a severe penalty was warranted. Accordingly, the Board ordered that the restaurant liquor license issued to Josephine E. Adair for premises known as T & R Grill be revoked.

The appellant filed a timely appeal from the order of revocation to the Court of Common Pleas of Crawford County. In her appeal appellant averred, inter alia, that the allegations against her were not proven by a preponderance of the evidence; and that the findings of the Board were not supported by the weight of the evidence.

The matter came up for a hearing before the Honorable P. Richard Thomas, P.J. of the Crawford County Common Pleas Court. After hearing the evidence anew, Judge Thomas entered an order reversing the Board's decision to ...


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