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PENNSYLVANIA LIQUOR CONTROL BOARD v. THOMAS SHERMAN AND LOUISE BULKA (11/17/89)

decided: November 17, 1989.

PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT,
v.
THOMAS SHERMAN AND LOUISE BULKA, APPELLEES



Appeal from Common Pleas Court, Cambria County, Honorable Thomas A. Swope, Judge.

COUNSEL

Leonard R. Omolecki, Jr., Asst. Counsel, with him, Cheryl G. Young, Chief Counsel, Harrisburg, for appellant.

J. Douglas Wolfe, Johnstown, for appellees.

Colins and McGinley, JJ., and Narick, Senior Judge.

Author: Narick

[ 129 Pa. Commw. Page 524]

The Pennsylvania Liquor Control Board (PLCB) is appealing an order from the Cambria County Court of Common Pleas, which vacated its order requiring Thomas H. Sherman (Sherman) to divest his interest in liquor license R-12992. We affirm.

The facts as found by the trial court are as follows. The PLCB ordered Sherman to divest himself of his interest in the liquor license for a combination bar/restaurant known as The Haven on April 16, 1987. A PLCB hearing officer heard Sherman's appeal from the divestiture order on July 9, 1987.

The PLCB affirmed its earlier order on September 16, 1987 and directed Sherman to divest his interest in the

[ 129 Pa. Commw. Page 525]

    license within thirty (30) days. Petitioner filed an appeal with the trial court on October 5, 1987.

The PLCB requested that the appeal be transferred to this Court, on the basis of its January 25, 1988 motion wherein it alleged that the trial court did not have jurisdiction to hear the appeal. On August 23, 1988, the trial court held a hearing on the motion. The trial court dismissed the PLCB's motion to transfer on August 29, 1988. It also directed that a hearing de novo on Sherman's appeal be held before it on September 14, 1988.

In vacating the PLCB's divestiture order, the trial court based its opinion on the best evidence rule and the scope of review contained in the case of Adair v. Pennsylvania Liquor Control Board, 519 Pa. 103, 546 A.2d 19 (1988). First, the trial court found that the PLCB factually failed to prove its case because the Centre County records concerning poolselling and bookmaking charges against Sherman were never presented before the trial court at the hearing de novo. Secondly, the trial court stated that even if the written evidence of those charges had been presented before it, Sherman's appeal would still have been granted.

There are two issues before this Court.*fn1 The first is whether the trial court had jurisdiction to hear Sherman's appeal from the PLCB's divestiture order.*fn2 The second is whether the trial court ...


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