Commonwealth v. Guide

Opinion by

President Judge Crumlish, Jr.,

The Pennsylvania Liquor Control Board (LCB) here appeals an Allegheny County Common Pleas Court order which reversed its decision to suspend Ann M. Guides distributor license. We reverse the court below.

Guide installed and operated a retail self-service gas station as án adjunct to her beer distributorship. The LCB suspended her license for failure to obtain advanced approVal to operate another business. Section 492(12) of the . Liquor Code.¹ The common pleas court, in a de novo proceeding, found that the LCB had approved the. operation of a gas station.

Where a Liquor Code violation is heard de novo in the common pleas court, our scope of review is limited tó determining whether the court abused its discretion or committed an error of law, and whether the courts order is supported by sufficient evidence. Acorn Club of Swissvale v. Pennsylvania Liquor Control Board, 93 Pa. Commonwealth Ct. 335, 500 A.2d 1296 (1985).

The LCB contends that there is no competent evidence that Guide obtained LCB approval to operate another business in conjunction with her licensed distributorship. We agree.

The record contains no substantial competent evidence to support, a conclusion that the LCB gave, Guide approval for the operation of the gasoline station. Before the trial court, Guide testified that permission was granted by the LCB to operate the gas station as, a result of a telephone conversation between her attorney and an unidentified member of the LCB, although she had not in fact participated in the alleged conversation. Thére is nothing in this record to confirm the alleged conversation, nor did her attorney testify to its existence. The LCBs counsel raised a timely objection to the admission of Guides testimony. Because this testimony is clearly hearsay, the common pleas court erred by admitting it over this objection. See A & B Electrical Contracting Co., Inc. v. Department of Labor and Industry, 13 Pa. Commonwealth Ct. 506, 319 A.2d 188 (1974). As a result, there is no competent record evidence supporting the common pleas courts finding of LCB approval for the gas station.

Accordingly, we reverse the common pleas courts order and reinstate the suspension.

Order

The Allegheny County Common Pleas Court order, No. SA 737 dated November 18, 1982, is reversed. The Pennsylvania Liquor Control Boards order suspending appellees distributor license is reinstated.

1 Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-492(12).