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COMMONWEALTH PENNSYLVANIA v. LUXURY ENTERPRISES (12/08/89)

decided: December 8, 1989.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT,
v.
LUXURY ENTERPRISES, INC., APPELLEE



Appeal from Common Pleas Court, Berks County; Honorable Frederick Edenharter, Judge.

COUNSEL

Leonard P. Omolecki, Asst. Counsel, Eileen S. Maunus, Harrisburg, for appellant.

Terry R. Fisher, Shillington, for appellee.

Craig and Barry, JJ., and Blatt, Senior Judge.

Author: Blatt

[ 130 Pa. Commw. Page 91]

The Pennsylvania Liquor Control Board (Board) appeals an order of the Court of Common Pleas of Berks County (trial court) which sustained the appeal of Luxury Enterprises, Inc. (licensee) thereby reversing the Board's three-day suspension of the licensee's liquor license.

On June 28, 1984, Trooper Mindler entered the Penn View Motel as part of an investigation. He observed a Chicken Draw Video Poker Machine plugged in along the south wall of the bar. After informing the bartender on duty that the video poker machine was a gambling device, Trooper Mindler confiscated it. This machine was later found to contain $2.75, and was equipped with a knock-off button and a metering device. It also allowed a player to carry over credits from one game to another. In Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983), the Pennsylvania Supreme Court held that these characteristics may satisfy the elements necessary to characterize a machine as a gambling device per se.*fn1 In fact, the trial court expressly found that the machine in question was a gambling device per se. In re: Luxury Enterprises, Inc., 81 Berks 48 (C.P.Pa.1986).

The Board issued a citation to the licensee charging it with a violation of the Liquor Code*fn2 for "permitting gambling, gambling devices, paraphernalia and/or lotteries on the licensed premises, on or about June 28, 1984 in violation

[ 130 Pa. Commw. Page 92]

    of Section 5512"*fn3 and/or Section 5513*fn4 of the Criminal Code, 18 Pa.C.S. ยงยง 5512, 5513. Following a hearing, the Board issued an order suspending the licensee's liquor license for three days.

The licensee appealed the Board's order to the trial court which, after admitting into evidence the notes of the testimony recorded at the hearing before the Board and taking additional testimony on its own, held that the Board failed to present evidence and establish by any criteria that the licensee possessed the requisite "scienter" to justify the suspension of its liquor license. Reproduced Record at 156a.

On appeal to this Court, the Board contends that the trial court committed an error of law and/or abused its discretion when it concluded that the licensee had not violated the Liquor Code despite finding that the properly seized video poker machine was a gambling device per se.

Initially, we note that our scope of review in this case is limited to determining whether the Board's order was supported by sufficient evidence and whether the trial court abused its discretion or committed an error of law. Pennsylvania ...


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