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LEWIS E. EGBERT v. COMMONWEALTH PENNSYLVANIA (05/23/89)

decided: May 23, 1989.

LEWIS E. EGBERT, D/B/A LEWIE'S LOUNGE, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Appeal from Common Pleas Court, McKean County, Honorable John M. Cleland, Judge.

COUNSEL

William J. Kubiak, McDowell, McDowell, Wick & Daly, Bradford, for appellant.

Faith S. Diehl, Asst. Counsel, Cheryl G. Young, Chief Counsel, Harrisburg, for appellee.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Narick

[ 126 Pa. Commw. Page 232]

Lewis E. Egbert, d/b/a Lewie's Lounge (Licensee) has appealed from an order of the Court of Common Pleas of

[ 126 Pa. Commw. Page 233]

McKean County dismissing his appeal from an order of the Pennsylvania Liquor Control Board (PLCB) suspending his liquor license for a period of five days.

The facts are as follows. In June of 1986, Licensee filed a liquor license renewal application for the premises located at 545 South Avenue in Bradford. Licensee indicated on the application that there was a valid health permit. However, the PLCB, pursuant to an investigation begun on January 26, 1987, determined that the health permit for the premises had been "deleted" as of May 12, 1986. Licensee was cited for supplying false information on his restaurant liquor license renewal application and for operation of the licensed establishment without a valid health permit.

Licensee testified before the PLCB*fn1 that he was unaware, when he filed the renewal application, that his health permit was not valid. He explained that he had applied for a health permit for premises at 434 South Avenue, where he hoped to transfer his business. This new permit was granted on May 12, 1986 and the old permit for 545 South Avenue was simultaneously deleted from the Department of Environmental Resources' (DER's) computer files. Licensee testified that he was unaware of the deletion and did not know his health permit was invalid until he received the PLCB citation. The DER sanitarian who handled the health permit transaction testified that he could not recall notifying Licensee that the old permit, which had been effective through July 31, 1986, would be deleted upon issuance of the new one, and that DER does not send notices in such a situation. Deleting the old permit from the computer meant that Licensee would not automatically receive a renewal application.

On Licensee's appeal to common pleas court, he argued that he had not intentionally supplied false information. The trial court determined that the information supplied

[ 126 Pa. Commw. Page 234]

    was false and that there was no need for proof that the violation was intentional, relying upon Commonwealth v. Koczwara, 188 Pa. ...


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