East End Ex-Service Men's Ass'n Liquor License Case , 162 Pa. Super. 512 ( 1947 )

Argued November 14, 1947. The Liquor Control Board made appropriate findings of fact that the licensee, East End Ex-Service Men's Association, (a) refilled State Store Liquor bottles; (b) sold liquor and malt beverages to non-members; (c) sold these between the hours of 3:00 A.M. and 7:00 A.M. It therefore revoked the license.

The licensee's appeal to the court below was heard de novo, and at this hearing the board called witnesses, who testified fully in substantiation of the offenses charged and the facts found by the board. The testimony of these witnesses was undenied, and the licensee offered no evidence to refute the charges. Without making findings of fact the court below reversed the board, restored the license privilege, but changed the penalty by ordering a fifteen day suspension. The Liquor Control Board appealed.

To reverse the order of the board concerning a matter in itsdiscretion it was incumbent upon the court below to make specific findings of fact different from those of the board, and it is without power to change or set aside the penalty in the absence of new findings. A general verdict, as pronounced in the instant case, is insufficient: Reichwein Liquor License Case, 160 Pa. Super. 71,73, 49 A.2d 869, and cases therein cited.

In the opinion of the court below it was stated: "The testimony of all the witnesses being considered, it is the judgment of this Court that the allegations have not been sufficiently sustained." (Emphasis supplied). This is not a specific finding of fact, nor does the court point out any insufficiency or to what it relates. The court also stated in its order: ". . . the appeal is sustained, the Court finding the facts to be otherwise than as found by the Pennsylvania Liquor Control Board." (Emphasis supplied). This statement does not take the place of specific findings of fact, and does not conform with our decisions. Since the court itself imposed a penalty, it must have found that at least a part of the charges were sustained, and did not find all of the facts "to be otherwise."

The evidence produced by the board being undenied, it was particularly requisite that the court below, if it assumed to reverse the board's findings, make appropriate and specific findings. The undenied testimony was, so far as we can determine, not weakened by cross-examination. It is a capricious disbelief of testimony if "an apparently trustworthy witness, whose testimony one of ordinary inteligence could not possibly challenge or entertain the slightest doubt as to its truth," is wilfully and deliberately disbelieved.¹ If the witnesses testified falsely, the court should so find. The court below cannot refuse to believe the witnesses merely because the board's order was more severe than the court thought proper.

All we now decide is that the proceedings were irregular because the court below did not make specific findings of fact that under the evidence the licensee was innocent, or that no violation of the law occurred, or that specific testimony was disbelieved or untrue. See Reichwein Liquor License Case, 160 Pa. Super. 71,73, 49 A.2d 869, and the cases therein cited. Since the opinion of the court below indicates that it may have disbelieved some of the testimony uncapriciously, we will remand the case for findings of fact.

The order of the court below is reversed with a procedendo.

ROSS, J., dissents.

¹ Pusey's Estate, 321 Pa. 248, 262, 184 A. 844.