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COMMONWEALTH PENNSYLVANIA v. ARTHUR VOLPE (07/29/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 29, 1988.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
ARTHUR VOLPE, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Arthur Volpe, No. S.A. 1523 of 1986.

COUNSEL

Eileen S. Maunus, Assistant Counsel, with her, Ken Skelly, Chief Counsel, for appellant.

Victor H. Pribanic, for appellee.

Judges Barry and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 118 Pa. Commw. Page 286]

The Pennsylvania Liquor Control Board (Board) appeals from an order of the Court of Common Pleas of Allegheny County which modified a suspension imposed by the Board upon Arthur Volpe (Licensee) for sales during prohibited hours, a violation of Section 406(a)(2), 47 P.S. § 406(a)(2)*fn1 and Section 493(16), 47 P.S. § 493(16)*fn2 of the Pennsylvania Liquor Code (Code). The trial court reduced the fifteen (15) day suspension

[ 118 Pa. Commw. Page 287]

    imposed by the Board to seven (7) days. The Board appeals. We reverse.

The facts of this controversy are not contested. On March 3, 1985, a Board Enforcement Officer entered Mr. Lolly's, an establishment licensed by the Board and owned by Licensee. The Board officer purchased alcoholic beverages four times between 2:00 a.m. and 2:55 a.m. The Board subsequently issued Licensee a citation alleging sales during prohibited hours, a violation of Sections 406(a)(2) and 493(16) of the Code. After a hearing, the Board found that Licensee violated provisions prohibiting after hour sales. Additionally, the Board noted that this was the Licensee's third citation within a four year period for the same offense.*fn3 The Board then suspended Licensee for fifteen (15) days.

On appeal, the trial court found that the after hours violation resulted from alcoholic beverages being sold at a "Toys for Tots" party, the proceeds from which were donated to innocent indigent children. The trial court reduced the suspension to seven (7) days.

The Board's sole contention on appeal is that no significant or materially different findings of fact which would warrant modification of the penalty imposed by the Board were made by the trial court. We agree.

In In re Appeal of R.G.R. Enterprises, Inc., 30 Pa. Commonwealth Ct. 607, 374 A.2d 998 (1977), our Court held that in order to modify a penalty imposed by the Board, the trial court must make findings of fact on material issues different from those of the Board.*fn4

[ 118 Pa. Commw. Page 288]

In the instant case, the trial court found that the benefit to the charity sanitized the wrongful conduct. Charity is admirable; however, it does not justify or excuse the violation. The Board has the primary responsibility for imposing penalties. R.G.R. Enterprises at 611, 374 A.2d at 1000. After hours sales benefiting charitable causes are violations of the Code. Further, this is Licensee's third violation for the same offense in the last four years. Accordingly, the order of the trial court is reversed and the fifteen (15) day suspension imposed by the Board is reinstated.

Order

Now, July 29, 1988, the order of the trial court is hereby reversed and the fifteen (15) day suspension imposed by the Board is reinstated.

Disposition

Reversed.


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