SSEN, INC. v. BOROUGH COUNCIL EDDYSTONE

Citation810 A.2d 200
PartiesSSEN, INC., v. BOROUGH COUNCIL OF the BOROUGH OF EDDYSTONE. Appeal of Borough of Eddystone.
Decision Date08 November 2002
CourtCommonwealth Court of Pennsylvania

810 A.2d 200

SSEN, INC.,
v.
BOROUGH COUNCIL OF the BOROUGH OF EDDYSTONE.
Appeal of Borough of Eddystone

Commonwealth Court of Pennsylvania.

Argued June 12, 2002.

Decided November 8, 2002.


810 A.2d 202
John J. Whellan, Milmont Park, for appellant

810 A.2d 203
John J. McCreesh, III, Upper Darby, for appellee

BEFORE: COLINS, President Judge, and SMITH-RIBNER, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, COHN, Judge, and LEAVITT, Judge.

810 A.2d 201
OPINION BY Judge COHN

The Borough Council of the Borough of Eddystone (Council) appeals from an order entered on December 12, 2001 by the Court of Common Pleas of Delaware County, sustaining SSEN, Inc.'s (SSEN) appeal and approving SSEN's Application for Intermunicipal Transfer of a liquor license into the Borough of Eddystone (Borough).

SSEN is a Pennsylvania corporation that maintains a leasehold interest on property in the Eddystone Crossings Shopping Center in Eddystone, Pennsylvania, from which it has operated a pizza restaurant called "Bedrock Pizza" since April, 2001. SSEN had previously entered into an agreement of sale to purchase an eating place retail dispenser liquor license for an establishment formerly located in Upper Darby Township, Delaware County, in order to move it into the Borough. This particular license would allow SSEN to sell beer to customers eating on the premises and also to those desiring takeout. On April 27, 2001, SSEN filed a "Petition for Approval of an Intermunicipal Transfer of a Liquor License into the Borough of Eddystone" with the Borough. After providing proper notice, the Council held a public hearing on June 4, 2001 to discuss SSEN's petition. At the conclusion of the hearing, Council members voted unanimously to deny the petition and, on June 11, 2001, adopted a resolution to that effect, stating that SSEN's proposed transfer was "adverse to the welfare, health, peace and morals of the Borough and its residents."

On June 26, 2001, SSEN appealed to the Court of Common Pleas of Delaware County, claiming that the Borough presented insufficient evidence at the hearing to support the Council's resolution.1

The trial judge met with both parties' counsel on July 30, 2001. He acknowledged receipt of the record from the Council, which the Borough's attorney had duly certified. The judge instructed the attorneys to submit their parties' arguments on briefs, which he would review "pursuant to [his] standard of review under liquor license appeal cases without taking additional testimony." The judge also indicated that he would make "his own independent finding of facts."

On December 12, 2001, "[u]pon a review of the record established before the Eddystone Borough Council," and after making its own findings of fact and conclusions of law, the trial court approved SSEN's application for an intermunicipal transfer of a liquor license. The court's order stated

Upon consideration of Appellant's Appeal from the denial of its Application for Intermunicipal Liquor License Transfer, and following a review of the record before the Borough of Eddystone Council and the memoranda of law submitted on behalf of the parties, it is ORDERED that Appellant's Appeal shall be and the same hereby is sustained and the Application for Intermunicipal Liquor License Transfer is approved.

The Borough timely appealed the trial court's decision to this Court on January 10, 2002.

810 A.2d 204
Because the issue here, which concerns the trial court's standard of review, is one of first impression requiring interpretation of recently amended portions of the Liquor Code,2 we feel it prudent to provide some general background before we enter into our discussion of the case sub judice.

The Liquor Code has, for many years, maintained a strict municipal quota system permitting one license of any class for each three thousand inhabitants in any municipality.3 Under this system, the Borough, with a population of 2,442 residents, would be limited to one liquor license.4 However, early in 2001, the Pennsylvania General Assembly passed Act 141 of 20005 which, inter alia, amended four sections of the Liquor Code somewhat easing this restriction by providing the means to effectuate the intermunicipal6 transfer of liquor licenses within a county.7 Specifically, Section 4-461(b.3) of the Liquor Code describes the application process as follows:

An intermunicipal transfer of a license... must first be approved by the governing body of the receiving municipality when the total number of existing restaurant liquor licenses and eating place retail dispenser licenses exceed one license per three thousand inhabitants. Upon request for approval of an intermunicipal transfer of a license ... by an applicant, at least one public hearing shall be held by the municipal governing body for the purpose of receiving comments and recommendations of interested individuals residing within the municipality concerning the applicant's intent to transfer a license into the municipality.... The municipality must approve the request unless it finds that doing so would adversely affect the welfare, health, peace and morals of the municipality or its residents. A decision by the governing body of the municipality to deny the request may be appealed to the court of common pleas in the county in which the municipality is located.

810 A.2d 205
A copy of the approval must be submitted with the license application.

47 P.S. § 4-461(b.3). Unfortunately, however, Section 461(b.3) does not specify the appropriate standard of review to be applied by the trial court from a decision of a governing body not to grant an intermunicipal transfer of a liquor license.

Thus, we arrive at the central issue presented in this case, i.e., what is the trial court's standard of review. SSEN claims that Section 464 of the Liquor Code, 47 P.S. § 4-464, authorizes the trial court to hear the matter de novo and issue its own findings and conclusions. On the other hand, the Borough maintains that the trial court is to comply with Section 754(b) of Local Agency Law, 2 Pa.C.S. § 754(b), and review the matter based only upon an established record.

Section 464 of the Liquor Code, 47 P.S. § 4-464, governs hearings upon refusal of liquor licenses, renewals or transfers, and states in pertinent part:

The board may of its own motion, and shall upon the written request of any applicant ... fix a time and place for hearing of such application for license or for renewal or transfer thereof... Such hearing shall be before a hearing examiner designated by the board. At such hearing, the board shall present its reasons for its refusal or withholding of license, renewal or transfer thereof.... The applicant may appear in person or by counsel, may cross-examine the witnesses for the board and may present evidence which shall likewise be subject to cross-examination by the board... The board shall thereupon grant or refuse the license, renewal or transfer thereof.... Any applicant who has appeared at any hearing, as above provided, who is aggrieved by the refusal of the board to issue any such license or to renew or transfer any such license ... may appeal ... to the court of common pleas of the county in which the premises or permit applied for is located. If the application is for ... the intermunicipal transfer of a license, the governing body of the municipality receiving the new license or the transferred license may file an appeal of the board decision granting the license ... to the court of common pleas of the county in which the proposed premises is located.... The court shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved....

47 P.S. § 4-464 (emphasis added). It is clear from a careful reading of Section 464 that it concerns only appeals from decisions of the board, i.e., the Pennsylvania Liquor Control Board (PLCB).8 In fact, all cases discussing the application of Section 464 of the Liquor Code involve appeals to the trial court from decisions of the PLCB only. See, e.g., Pennsylvania Liquor Control Board v. Richard E. Craft American Legion Home Corp., 553 Pa. 99, 718 A.2d 276 (1998) (grant of new license); Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Cantina Gloria's Lounge, Inc., 536 Pa. 254, 639 A.2d 14 (1994) (Supreme Court extended rule to license suspension); Two Sophia's, Inc. v. Pennsylvania Liquor Control Board, 799 A.2d 917 (Pa.Cmwlth.2002) (license renewal); Altshuler v. Pennsylvania Liquor Control Board, 729 A.2d 1272 (Pa.Cmwlth. 1999) (license transfer). Therefore, the trial court's review of board decisions under Section 464 of the Liquor Code, as

810 A.2d 206
enunciated in Cantina Gloria's is de novo, and...

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