Giant Food Stores, LLC v. Penn Twp., 1310 C.D. 2016.

• Decision Date: 18 July 2017
• Docket Number: No. 1310 C.D. 2016.,1310 C.D. 2016.
• Citation: 167 A.3d 252
• Parties: GIANT FOOD STORES, LLC, Appellant v. PENN TOWNSHIP
• Court: Pennsylvania Commonwealth Court

167 A.3d 252

GIANT FOOD STORES, LLC, Appellant

v.PENN TOWNSHIP

No. 1310 C.D. 2016.

Commonwealth Court of Pennsylvania.

Argued: May 3, 2017

Decided: July 18, 2017

Stanley J. Wolowski, Philadelphia, for appellant.

James K. Butera, King of Prussia, and Robert S. McMichael, Oxford, for appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JULIA K. HEARTHWAY, Judge

OPINION BY JUDGE COVEY

Giant Food Stores, LLC (Giant) appeals from the Chester County Common Pleas Court's (trial court) June 23, 2016 order granting Penn Township's (Township) motion to quash (Motion) Giant's appeal from the Township's denial of Giant's request for an intermunicipal transfer of a restaurant liquor license (License). There are two issues before this Court:¹ (1) whether the trial court erred by quashing an appeal brought under the Local Agency Law;² and, (2) whether the trial court erred by concluding that Giant's appeal was premature, and that Giant must first submit an intermunicipal transfer application to the Pennsylvania Liquor Control Board (PLCB) without the statutorily-mandated municipal approval, and then appeal from the PLCB's denial of the application under the Pennsylvania Liquor Code.³ After review, we reverse and remand for further proceedings.⁴

By February 26, 2016 letter, Giant notified the Township that Giant had entered into an agreement to purchase the License. Giant requested the Township's approval to transfer the License from Tredyffrin Township to the Giant store located in the Township at 849 West Baltimore Street.

To transfer a liquor license into a municipality which has exceeded its statutory liquor license quota, as occurred in the present case, Section 461(b.3) of the Liquor Code,⁵ requires an application to be accompanied by the receiving municipality's resolution or ordinance approving the transfer. On April 6, 2016, in accordance with Section 461(b.3) of the Liquor Code, the Township's Board of Supervisors (Board) held a hearing on Giant's transfer request. Giant presented testimony detailing its plans to operate a restaurant at the grocery store and sell beer for on-premises and off-premises consumption. Thereafter, the Board invited public comment. The only resident in attendance at the hearing commented:

I have been around a while. All I want to do is address the Township. I sat on that Board for 36 years and we here in [the] Township kind of have our roots in the Quaker tradition and beer sales and things of that nature kind of come hard to the old residents, which I'm one.

And so just a thought—the only thing that comes to mind in creating this restaurant or package store is the fact that the parking in the Giant right now is overwhelming because there is a tremendous amount of business in Giant. I go there quite regularly and when I go it's hard to find a parking place. I'm 86 years old, so trying to get around sometimes is not exactly what you young guys are able to do, but to walk from the Giant to my car sometimes—if I can find a parking space, and this is the truth, it's normally packed. And if you come [on] the holidays, or anything like that, there is no parking. It's overwhelming.

It's not only the Giant that does a good business, but most of the businesses in that shopping center are attended, so it's a good business, and I think that the Giant has a wonderful business there, and they really don't need a package store to create more problems out in the parking lot.

Reproduced Record (R.R.) at 32a–33a. The Board concluded the hearing and, later that day, adopted a resolution denying Giant's transfer request.⁶

Notwithstanding that Section 461(b.3) of the Liquor Code provides no right of appeal from a municipality's denial of a liquor license transfer, on April 22, 2016, Giant appealed from the Board's decision to the trial court under the Local Agency Law, which does authorize appeals from local agency adjudications even where a statute explicitly denies such right.

On May 6, 2016, the Township filed its Motion. On June 23, 2016, the trial court granted the Motion and quashed Giant's appeal as premature. Specifically, the trial court held that Giant must apply to the PLCB to transfer the License without first obtaining the necessary municipal approval, wait for the PLCB to deny the application, and then appeal from the PLCB's decision pursuant to Section 464 of the Liquor Code,⁷ which authorizes appeals from PLCB decisions to the trial court. Giant appealed to this Court.⁸

Giant first argues that the trial court erred by granting the Township's Motion because Giant's appeal was filed under the Local Agency Law. We agree.

Section 461(b.3) of the Liquor Code states:

An intermunicipal transfer of a license or issuance of a license for economic development under subsection (b.1)(2)(i) 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 in the receiving municipality equal or 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 governing body shall, within forty-five days of a request for approval, render a decision by ordinance or resolution to approve or disapprove the applicant's request for an intermunicipal transfer of a license.... The municipality may approve the request. A decision by the governing body of the municipality to deny the request may not be appealed. A copy of the approval must be submitted with the license application. .... Failure by the governing body of the municipality to render a decision within forty-five days of the applicant's request for approval shall be deemed an approval of the application in terms as presented unless the governing body has notified the applicant in writing of their election for an extension of time not to exceed sixty days. Failure by the governing body of the municipality to render a decision within the extended time period shall be deemed an approval of the application in terms as presented.

47 P.S. § 4–461(b.3) (bold and italic emphasis added).⁹

Although Giant agrees that the Liquor Code expressly prohibits an appeal from the Township's denial of its intermunicipal liquor license transfer application, it contends that it may appeal from that denial under the Local Agency Law, in accordance with our Supreme Court's decision in Maritime Management, Inc. v. Pennsylvania Liquor Control Board , 531 Pa. 95, 611 A.2d 202 (1992).

Section 751 of the Local Agency Law provides:

(a) General rule.— Except as provided in subsection (b), this subchapter shall apply to all local agencies regardless of the fact that a statute expressly provides that there shall be no appeal from an adjudication of an agency, or that the adjudication of an agency shall be final or conclusive, or shall not be subject to review.

(b) Exception.— The provisions of this subchapter shall apply to any adjudication which under any existing statute may be appealed to a court of record, but only to the extent not inconsistent with such statute.

2 Pa.C.S. § 751 (text emphasis added). Section 752 of the Local Agency Law states:

Any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).

2 Pa.C.S. § 752 (emphasis added).¹⁰

In Maritime Management , a steamship company applied for a public service liquor license. The PLCB refused the application, holding that the granting of the license would negatively impact the neighboring communities. The applicant appealed to this Court pursuant to the Administrative Agency Law.¹¹ The township filed a motion to quash the appeal, citing Section 408(b) of the Liquor Code, which provides:

For the purpose of considering an application by a steamship or airline company for a public service liquor license, the [PLCB] may cause an inspection of the steamship or vessel or aircraft for which a license is desired. The [PLCB] may, in its discretion, grant or refuse the license applied for and there shall be no appeal from its decision, except that an action of mandamus may be brought against the [PLCB] in the manner provided by law.

47 P.S. § 4–408(b) (emphasis added). This Court granted the motion to quash. On appeal, the Supreme Court reversed this Court, relying on Sections 701(a) and 702 of the Administrative Agency Law.¹² Our Supreme Court held:

It is well established that the right of appeal set forth in the Administrative Agency Law, 2 Pa.C.S. §§ 701(a), 702 exists separately from, and in addition to, any right of appeal provided in the Liquor Code. Application of Family Style Rest [.], Inc., 468 A.2d 1088, 1090 ( [Pa.] 1983) ('[T]he Administrative Agency Law provides a right of appeal in addition to that provided by the Liquor Code. ...'); Application of El Rancho Grande, Inc., 437 A.2d 1150 ( [Pa.] 1981).

Mar. Mgmt., Inc. , 611 A.2d at 204 (bold and italic emphasis added). The Maritime Management Court concluded:

[A]s recognized in Family Style Restaurant and El Rancho Grande,provisions in the Liquor Code disallowing appeals do not bar appeals taken under the Administrative Agency Law, 2 Pa.C.S. §§ 701(a), 702.

We find no merit in the contention of the PLCB that Section 4–408(b) [sic] of the Liquor Code ... was intended by the legislature to supersede the right of appeal set forth

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