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COMMONWEALTH PENNSYLVANIA v. K.V.M. (09/15/88)

decided: September 15, 1988.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
K.V.M., INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. K.V.M., Inc., No. S.A. 163 of 1987.

COUNSEL

Paul T. Sosnowski, Assistant Counsel, with him, Kenneth B. Skelly, Chief Counsel, for appellant.

John R. Luke, with him, William D. Coholan, Grogan, Graffam, McGinley & Lucchino, P.C., for appellee.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 119 Pa. Commw. Page 459]

The Pennsylvania Liquor Control Board (Board) appeals an order of the Court of Common Pleas of Allegheny County reversing the Board's order imposing a fine of eight hundred dollars ($800) upon K.V.M., Inc. (licensee) for having permitted the sale, furnishing or giving of liquor or malt or brewed beverages to a minor on January 24, 1986, in violation of Section 493(1) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 4-493(1).

The Board issued a citation against the licensee. After a hearing, it issued an order imposing the fine of eight hundred dollars upon the licensee. The licensee appealed to the Court of Common Pleas of Allegheny County. which held a de novo hearing and thereafter sustained licensee's demurrer to the Board's evidence and reversed the Board's order. This appeal followed.

In reviewing the decision of a trial court which, after hearing de novo, reverses a Board order, our review is limited to a determination of whether the order appealed from was supported by sufficient evidence and whether the trial court committed an error of law or abused its discretion. New Sorrento, Inc. v. Pennsylvania Liquor Control Board, 64 Pa. Commonwealth Ct. 422, 440 A.2d 676 (1982).

At the hearing before the trial court, an enforcement officer for the Board testified that he entered the licensed premises at 11:30 p.m. and observed one Carol Harbin near the entrance, possessing a tumbler containing a beverage and consuming the beverage. He

[ 119 Pa. Commw. Page 460]

    later observed Ms. Harbin place the tumbler on a shelf. At this point, the enforcement officer approached the individual, sipped the beverage in the tumbler, and then questioned her as to her age. She was then taken to the police station where she admitted that the beverage she had been consuming was a type of "Mountain Cooler". The enforcement officer testified that, in his opinion, the beverage he sipped contained alcohol. He testified, however, that he did not know what the beverage in the tumbler was.

Ms. Harbin also testified. She stated that she had entered the licensee's premises and was not requested to produce any identification card. According to her, while on the licensed premises, she picked up a bottle and drank the beverage contained therein from it, without anybody observing her do so. She only had that one drink and she did not drink any beverage from a glass. The beverage she drank from the bottle was a "White Mountain Cooler." When she was asked how she knew this, she testified: "Somebody else said to try this White Mountain Cooler." Ms. Harbin admitted that she did not read the label on the bottle. Furthermore, when asked whether she believed the beverage she consumed was an alcoholic beverage, she first stated that she believed it was. Upon being asked the same question again, however, she stated that she "guessed" that it was and that she "[knew]" that it [was] now for "sure."

The trial court, in its opinion, set forth the following rationale for sustaining the licensee's ...


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