Cheris's Liquor License Case , 127 Pa. Super. 355 ( 1937 )

Argued April 21, 1937. The appellant, James Nick Cheris, applied to the Pennsylvania Liquor Control Board for a restaurant liquor license for his restaurant at 154 Columbia Avenue, in the borough of Vandergrift, Westmoreland County, for the term ending April 30, 1936. It was refused. He appealed to the Court of Quarter Sessions of Westmoreland County which sustained the refusal of the board. He thereupon appealed to this court.

Section 404 of the Pennsylvania Liquor Control Act (Act of Nov. 29, 1933, Special Session, P.L. 15, as amended by Act of July 18, 1935, P.L. 1246, 47 PS 744) which authorizes an appeal from the liquor control board to the court of quarter sessions, in such cases, provides that "there shall be no further appeal" from the action of the court. The present ``appeal' is, therefore, in the nature of a certiorari, and our duty is limited to an inspection of the record to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion: Revocation of Mark's License, 115 Pa. Super. 256,263, 176 A. 254.

The refusal of the liquor control board to issue the license was based on the fact that there was a restriction in the deed to the property, on which appellant proposed to operate his restaurant liquor license, prohibiting its use for the manufacture or sale of intoxicating liquors.¹ The appeal to the court of quarter sessions attacked the validity of this covenant in the deed and contended that it was rendered null and void by the provisions of the Liquor Control Act, supra. The court below upheld the validity of the restriction and ruled against the contention of appellant that its force and effect had been invalidated or annulled by section 403 of the Liquor Control Act, which directs that the board "shall grant and issue to the applicant a liquor license" when satisfied of the truth of the statements in the application, and that the applicant is a person of good repute and has complied with the other requirements of the act. We agree with the legal position of the court below.

It is not necessary to set out at length the opinion of the learned President Judge which fully justifies the order appealed from. It refers to and follows his prior decision inRaschiatore's Appeal, reported in 23 Penna. D. C. Reports 315 (1934), where precisely the same covenant was considered by the court and the action of the liquor control board in refusing a restaurant liquor license to one Raschiatore, for the same reason, was sustained. We may briefly summarize its conclusions:

1 — Such a restrictive covenant is reasonable and legal.²

2 — It runs with the land.³

3 — It is in the nature of an easement for the benefit of the holders of other lots in the plan, and was not affected by the subsequent dissolution of the corporate grantor.⁴

4 — It is not affected by the fact that in violation of its provisions appellant sold beer on the premises from June 1, 1933 to May 31, 1935, under a malt liquor license issued by the county treasurer.

The discussion by Judge MORRISON in Fanning's License, 23 Pa. Super. 622, though concerned with the retail license Act of May 13, 1887, P.L. 108, is nevertheless applicable here and sustains the propriety and legality of such a restriction. See also Vitko v. Pennsylvania Liquor Control Board, 23 Penna. D. C. Reports 648 (GREER, J.) and Haas v. Penna. Liquor ControlBoard, 53 Montgomery Co. Law Reporter 82 (CORSON, J.)

The provision in the Pennsylvania Liquor Control Act (sec. 403) directing that on compliance by the applicant with certain conditions, the board "shall grant and issue a liquor license," does not have the effect of nullifying and invalidating such a restrictive covenant in the deed, or rendering it illegal. The declared purpose of the Act is to regulate and restrain the sale, traffic in and use of alcohol and alcoholic, malt and brewed liquors, not to promote and encourage their sale and use; and the statute declares (sec. 3) that it shall be interpreted as an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth. Certainly, the Act exhibits no purpose or intent to strike down and render void covenants in deeds restricting or prohibiting the sale of intoxicating liquors, which our courts have upheld as reasonable and legal. Neither in the title nor in the body of the act is such an effect expressly given to its provisions, nor can it reasonably be implied.

The statute is dealing in general terms with applicants, who, ordinarily, are not restricted or prohibited by covenants in their deeds from selling intoxicating liquors on their premises, and the mandatory word ``shall' relied on by appellant is necessarily limited to an applicant whose deed does not prohibit the sale of the liquors which he proposes to dispense under his license.

The appeal is dismissed at the costs of the appellant.

¹ "And the said party of the second part, [the grantee] for itself, its successors and assigns, does hereby covenant, grant and agree with and unto the party of the first part, [the grantor], its successors and assigns, that no vinous, malt, brewed, fermented or distilled liquors or intoxicating drink of any kind shall be manufactured, sold or offered for sale on the tracts of land hereby conveyed or any part thereof, for the full term of ninety-nine years from the date hereof [December 17, 1896]. Deed, Apollo Iron Steel Co. to Vandergrift Land Improvement Co.

² Fanning's License, 23 Pa. Super. 622; Trotter's License,24 Pa. Super. 26; Cambria Iron Co. v. Schry, 38 Pa. C.C. 410 (SHULL, P.J.); Cowell v. Springs Co., 100 U.S. 55.

³ Hansell v. Downing, 17 Pa. Super. 235; Cambria Iron Co.v. Schry, supra; see also Muzzarelli v. Hulzhizer, 163 Pa. 643,30 A. 291; Landell v. Hamilton, 175 Pa. 327, 34 A. 663; Meigs v.Milligan, 177 Pa. 66, 35 A. 600.

⁴ Cambria Iron Co. v. Schry, supra; Fanning's License, supra, p. 626.