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BEACH LAKE UNITED METHODIST CHURCH v. COMMONWEALTH PENNSYLVANIA (10/06/88)

COMMONWEALTH COURT OF PENNSYLVANIA


filed: October 6, 1988.

BEACH LAKE UNITED METHODIST CHURCH
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD AND KUESTER'S INC., D/B/A KUESTER'S HOTEL, KUESTER'S INC., D/B/A KUESTER'S HOTEL, APPELLANT

Appeal from Common Pleas Court, Wayne County; Honorable Robert J. Conway, PRESIDENT JUDGE.

COUNSEL

John J. Brier, Esq., Scranton, Pa., ATTORNEYS for appellant.

Richard Henry, Esq., Honesdale, Pa., Kennth Skelly, CHIEF COUNSEL, PENNSYLVANIA LIQUOR CONTROL BOARD, Harrisburg, Pa., ATTORNEYS FOR BEACH LAKE UNITED METHODIST CHURCH.

Before: Honorable Francis A. Barry, Judge, Honorable Doris A. Smith, Judge, Honorable Emil E. Narick, Senior Judge

Author: Barry

Opinion

Opinion BY JUDGE FRANCIS A. BARRY

The Pennsylvania Liquor Control Board (Board) and Kuester's Inc., d/b/a Kuester's Hotel (Kuester's) appeal an order of the Court of Common Pleas of Wayne County which reversed a Board decision to grant a liquor license to Kuester's.

Formerly Kuester's was the Dunedin Hotel which operated under a liquor license until January 1986 when the previous owner abandoned the premises. On July 1, 1986, Kuester's filed an application with the Board for a new hotel liquor license, amusement permit and for a provisional Sunday sales permit. This application was opposed by Beach Lake United Methodist Church (appellee). At the Board hearing, testimony established that Kuester's is located in Berlin Township, Wayne County, within 122 feet of the appellee's community center and within 192 feet of the appellee's church. Testimony also established concerns over increased parking and traffic should Kuester's be licensed.

The Board granted Kuester's application based on the following factual findings:

1. The proposed licensed premises are located within 200 feet of another establishment licensed by the Board.

2. The proposed licensed premises are located within 300 feet of Beach Lake Volunteer Fire Company and Beach Lake Methodist Church.

3. The approval of this application will not adversely affect the health, welfare, peace and morals of the neighborhood within a radius of 500 feet.

The appellee appealed this decision to the trial court. At a de novo hearing, the same evidence that was presented to the Board was presented to the trial court.*fn1 The trial court reversed the board's decision to grant the license. This appeal follows.

The sole issue on this appeal is whether the trial court may substitute its findings for those of the Board's when the evidence presented to the trial court does not differ from that which was presented to Board.

The Supreme Court has recently addressed this very issue. In Adair v. Pennsylvania Liquor Control Board, Pa. A.2d , (Nos. 41 and 42 W.D. Appeal Docket, filed July 28, 1988), the Court stated that the trial court, after a de novo hearing, may alter, change, modify or amend a Board imposed penalty under Section 471 of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-471.*fn2 We believe that Adair, also controls a Board determination to either grant or deny a liquor license. Section 464 of the Code, 47 P.S. § 4-464, provides that an appeal may be taken from a Board decision to grant or deny a liquor license. This appeal shall be taken to the "court of common pleas of the county in which the premises applied for is located . . . The court shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved . . ." As this statute provides for a trial court to hear the matter de novo*fn3, we believe that Adair applies. Therefore, the trial court, may, based on the same facts as presented to the Board, in the absence of an abuse of discretion which we do not find here, reach a contrary conclusion to that of the Board.

This decision was reached prior to the resignation of Judge MacPhail.

Order

NOW, October 6, 1988, the order of the Court of Common Pleas of Wayne County, entered on December 4, 1987, at No. 1987 Civil 333, is affirmed.


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