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08/28/97 MANAYUNK DEVELOPMENT CORPORATION v.

COMMONWEALTH COURT OF PENNSYLVANIA


August 28, 1997

MANAYUNK DEVELOPMENT CORPORATION
v.
PENNSYLVANIA LIQUOR CONTROL BOARD A & J MAIN, INC., APPELLANT; MANAYUNK DEVELOPMENT CORPORATION V. PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT

Appealed From No. 171 November Term, 1995. Common Pleas Court of the County of Philadelphia. Judge LEVIN.

Before: Honorable Doris A. Smith, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Smith Judge. Flaherty concurs in the result only.

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

ORDER

AND NOW, this 28th day of August, 1997, it is hereby ordered that the memorandum opinion filed in the above-captioned matter on June 3, 1997 shall be designated OPINION and shall hereafter be reported.

Appellants, Pennsylvania Liquor Control Board and A & J Main, Inc., appeal from the May 9, 1996 order of the Court of Common Pleas of Philadelphia County reversing the Liquor Control Board's decision to grant A & J's application for double transfer of a restaurant liquor license, held in safekeeping, to premises where A & J currently operates a restaurant in the Manayunk area of the City of Philadelphia. The questions involved for review include whether the trial court, after conducting a de novo review, erred when it failed to apply the limited scope of review set forth in Ball Park's Main Course, Inc. v. Pennsylvania Liquor Control Board, 163 Pa. Commw. 636, 641 A.2d 713 (Pa. Commw.), appeal denied, 539 Pa. 655, 651 A.2d 542 (1994); whether the trial court erred when it failed to deny A & J's motion to quash and/or dismiss the appeal of Manayunk for its lack of standing to appeal the Board's decision; and whether the trial court erred when it found that a transfer of liquor license would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a 500 feet radius.

The trial court issued a well-reasoned opinion dated August 14, 1996, incorporating its May 9, 1996 memorandum opinion, which discussed and appropriately resolved the questions presented for review. The trial court followed the proper standard of review in this matter; the decision to deny A & J's motion to quash and/or dismiss Manayunk's appeal was correct; *fn1 and the trial court reached the right decision when it concluded that A & J's transfer of liquor license would be detrimental to the neighborhood.

In connection with the court's de novo hearing, Manayunk presented the testimony of various witnesses who did not testify at the administrative hearing: they include a Philadelphia city councilman whose councilmanic district includes residents of Manayunk; a neighbor of the proposed premises and director of Manayunk; an architect and urban planner who conducted a traffic and parking analysis of Main Street; a Philadelphia police officer who served on bike patrol in Manayunk; and an operator of the proposed restaurant, called as on cross-examination. A & J and the Board rested their case upon the certified record of proceedings before the hearing examiner and the Board.

The additional evidence before the trial court permitted the court to substitute its own findings for those made by the Board, inasmuch as the evidence before the court was substantially different from the evidence before the Board. To that extent, the trial court applied a limited scope of review. Ball Park's Main Course. *fn2 This Court, therefore, affirms the order of the Court of Common Pleas of Philadelphia County and adopts the opinion issued by Judge Stephen E. Levin in Manayunk Development Corporation v. Pennsylvania Liquor Control Board and A & J Main, Inc., 32 Phila. 415 (1996).

DORIS A. SMITH, Judge

ORDER

AND NOW, this 3rd day of June, 1997, the order of the Court of Common Pleas of Philadelphia County is affirmed, and the Court hereby adopts the opinion issued by Judge Stephen E. Levin in proceedings captioned Manayunk Development Corporation v. Pennsylvania Liquor Control Board and A & J Main, Inc., 32 Phila. 415 (1996).

DORIS A. SMITH, Judge


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