In re R--4989 Carver House, Inc.

• Decision Date: 19 September 1973
• Citation: 310 A.2d 81,454 Pa. 38
• Parties: In the Matter of Revocation of Restaurant Liquor License No. R--4989 Issued to the CARVER HOUSE, INC., Appellant.
• Court: Pennsylvania Supreme Court

310 A.2d 81

454 Pa. 38

In the Matter of Revocation of Restaurant Liquor License No. R--4989 Issued to the CARVER HOUSE, INC., Appellant.

Supreme Court of Pennsylvania.

September 19, 1973.

Rehearing Denied Oct. 26, 1973.

Abraham J. Levinson, Philadelphia, for appellant.

J Shane Creamer, Atty. Gen., Alexander J. Jaffurs, Asst. Atty Gen., Albert B. Miller, Sp. Asst. Atty. Gen., Philadelphia for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

On August 3, 1967, the Pennsylvania Liquor Control Board (Board) cited appellant, a restaurant liquor licensee in Philadelphia, for violations of the Liquor Code. An evidentiary hearing was held, at which it was affirmatively established that one of appellant's employees had, on two occasions, sold narcotics on the licensed premises. On the basis of this factual finding, appellant's liquor license was revoked.

Carver House appealed that order to the Philadelphia Court of Common Pleas. Act of April 12, 1951, P.L. 90, art. IV, as amended, 47 P.S. § 4--471 (Supp.1972). That court, without making findings at variance with those found by the Board examiner, vacated the Board-imposed revocation on the ground that the penalty was inconsistent with sanctions applied in similar cases. The matter was remanded to the Board 'for further consideration in accordance with this opinion.'

No appeal was taken, and on June 29, 1969, the Board, without developing additional facts, entered a second order revoking appellant's license. Carver House again appealed to the court of common pleas; however, on this appeal, the court determined that since it was unable to make findings of facts materially at odds with those of the Board, it was without authority to modify the Board's order of revocation. On appeal, the Commonwealth Court affirmed. Carver House, Inc. v. Liquor Control Board, 3 Pa.Cmwlth. 453, 281 A.2d 473 (1971). This Court granted allocatur and we now affirm.

The Commonwealth Court correctly held, in accordance with all prior decisions of this Court and the Superior Court, that the court was without authority to alter a penalty imposed by the Liquor Control Board, where such penalty was obviously within the Board's statutorily conferred powers.

'Under the (Liquor) Code, Act of April 12, 1951, P.L. 90, Art. IV, § 471, (as amended) 47 P.S. § 4--471 (Supp.1972), the court on appeal from a suspension * * * 'shall, in the exercise of its discretion, sustain, reject, alter or modify the findings, conclusions and penalties of the board, based on the findings of fact and conclusions of law as found by the court.' It is by now well established that on such appeal the lower court must make findings of fact on the material issues different from those as found by the board before the action taken by the board can be reversed or changed. Unless the lower court's change or modification is so grounded, it cannot stand. Appeal of Homestead Social & Beneficial Society, 169 Pa.Super. 593, 84 A.2d 265; Turner v. Pennsylvania Liquor Control Board, 161 Pa.Super. 16, 53 A.2d 849; Enlisted Men's Club of Trafford Liquor License Case, 166 Pa.Super. 26, 27, 70 A.2d 696.'

Italian Citizens Nat'l Ass'n of America Liquor License Case, 178 Pa.Super. 213, 216, 115 A.2d 881, 882 (1955). Here, no different findings of fact on material issues were made by the hearing court. Accordingly, that court was correct in its ruling (as was the Commonwealth Court in affirming) that it was without authority to modify the penalty imposed by the Liquor Control Board. See also Banterla Liquor License Case, 166 Pa.Super. 544, 72 A.2d 602 (1950); Pacewicz Liquor License Case, 152 Pa.Super. 123, 31 A.2d 361 (1943).

The interpretation of Section 471 of the Liquor Code, as set out above, has remained constant for over twenty years. In 1960, the Superior Court reaffirmed its holding that

'unless the findings of fact of the court below are different from those of the board, the penalties imposed by the board in the proper exercise of its discretion must stand. Enlisted Men's Club of Trafford Liquor License Case, 166 Pa.Super. 26, 29, 30, 70 A.2d 696 (1950); Banterla Liquor License Case, 166 Pa.Super. 544, 72 A.2d 602 (1950).

'The court may not reduce the penalty imposed by the board solely because it thinks the penalty was too severe. Homestead Social & Beneficial Society Appeal, 169 Pa.Super. 593, 595, 84 A.2d 265 (1951).'

East End Social Club Liquor License Case, 193 Pa.Super. 583, 586, 165 A.2d 253, 254 (1960).

Again in 1971, the Superior Court restated that

'(t)he law is clear that the lower court may not change or modify a penalty imposed on a licensee by the Board without making specific material changes in the facts as found by the Board; Maple Liquor License Case, 207 Pa.Super. 237, 217 A.2d 859. Nor may the court below capriciously disregard competent evidence of violations by the licensee: Petty Liquor License Case, 216 Pa.Super. 55, 258 A.2d 874. Nor may the court below reduce the penalty imposed by the Board because it is considered too severe: Alston Beer Distributor Liquor License Case, 214 Pa.Super. 32, 251 A.2d 808.'

Pace Liquor License Case, 218 Pa.Super. 300, 302, 280 A.2d 642, 643--644 (1971). See also Yugovich Liquor License Case, 217 Pa.Super. 353, 272 A.2d 510 (1970); Delpark Athletic Club Liquor License Case, 215 Pa.Super. 1, 257 A.2d 600 (1969). ^[1]

Appellant would have us radically and unwisely depart, without reason or logic, from over twenty years of salutary and well-settled case law. This we will not do. What this Court recently stated in Noonday Club of Delaware County, Inc. Liquor License Case, 433 Pa. 458, 464--465, 252 A.2d 568, 572 (1969) (four members of this Court agreeing that the Superior Court had erred by reducing the penalty imposed by the Board) is controlling here and is dispositive of appellant's contentions.

'(A)s a matter of judicial restraint and in the interests of a more effective and efficient administration of our entire judicial system in this Commonwealth, . . . penalties imposed by lower courts (or the Board) which are within the prescribed maximum and minimum allowable penalties under the applicable statutory provisions are not subject to review on appeal except in rare and unusual circumstances involving constitutional rights. ^[2] The mere fact that each individual judge both on the Superior Court and this Court might have imposed a less severe penalty had he been the trial judge below, (or the Board) is not sufficient to permit a higher tribunal to substitute its judgment for the judgment of the lower tribunal. . . . Maple Liquor License Case, 207 Pa.Super. 237, 217 A.2d 859 (1966); Heights Fire Company Liquor License Case, 181 Pa.Super. 56, 121 A.2d 902 (1956); Homestead S. and B. Society Appeal, 169 Pa.Super. 593, 84 A.2d 265 (1951). While the lower court under the statute as interpreted by case authority may reduce the penalty imposed by the Board when material changes in the findings of the Board are made, we find no sound, judicious reason why an appellate court should be permitted to review the penalty imposed by the lower court (or the Board). If we were to hold otherwise, litigants could appeal solely on the basis that the penalty was too harsh or too lenient, a result of which undoubtedly would overburden an already overburdened appellate court system.'

The order of the Commonwealth Court, therefore, is affirmed.

POMEROY, J., filed a dissenting opinion in which O'BRIEN, J., joins.

MANDERINO, J., took no part in the consideration or decision of this case.

POMEROY Justice (dissenting).

For reasons nowhere set forth in its opinion, the Court today makes a sacred cow of the Pennsylvania Liquor Control Board by holding that it is impossible for the Board to commit an abuse of discretion in imposing a penalty for violation of the Liquor Code where the facts are not in dispute. ^[1] I must dissent from this unwise and unjustifiable departure from the normal minimum judicial review of administrative action. ^[2]

The majority asserts that the issue today is controlled by 'over twenty years of salutary and well settled case law.' In my view the case law referred to is neither salutary nor well settled.

Appeals from orders of the Board revoking liquor licenses are provided for by section 471 of the Liquor Code, 47 P.S. § 4--471 (Supp. 1972--73). That section reads in pertinent part:

'In the event the person who was fined or whose license was suspended or revoked by the board shall feel aggrieved by the action of the board, he shall have the right to appeal to the court of quarter sessions or the county court of Allegheny County in the same manner as herein provided for appeals from refusals to grant licenses. Upon appeal, the court so appealed to shall, in the exercise of its discretion, sustain, reject, alter or modify the findings, conclusions and penalties of the board, Based on the findings of fact and conclusions of law as found by the court.' (My emphasis).

Appellant argues that this section mandates a trial De novo, to be conducted without reference to either the findings of fact or the penalty imposed by the Board. The Board argues on the other hand that the court of common pleas may not change or modify the penalty imposed by the Board unless it first finds facts different from those found by the Board; in other words, if the court sustains the findings of the Board, it may not disturb the penalty. In support of that position the Board cites a long list of authority. See, e.g., In re Noonday Club of Delaware County, Inc. Liquor License, 433 Pa. 458, 252 A.2d 568 (1969); In re Yugovich Liquor License, 217 Pa.Super. 353, 272 A.2d 510 (1970); In re East End Social Club...