Commonwealth v. Antler Cafe, Inc.

COLINS, Judge.

The Pennsylvania Liquor Control Board (Board) appeals from an order of the Court of Common Pleas of Dauphin County (trial court) which dismissed an order of the Board imposing an additional 34-day suspension of license penalty upon Antler Cafe, Inc. (Antler). We affirm.

The issues presented are: (1) whether the trial court has initial jurisdiction over this appeal, in light of Section 933(a)(l)(v) of the Judicial Code, 42 Pa.C.S. § 933(a)(l)(v), which gives the trial court jurisdiction over appeals from the Board; and (2) whether the Board can impose an additional suspension penalty upon Antler, whose liquor license expired before it served its full 90-day suspension penalty.

After a hearing on the merits, the Board held that Antler violated provisions of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 — 9-902. Antler was cited for insufficient supply of food, insufficient seating accommodations, unsanitary conditions, and for issuing checks, which were returned due to insufficient funds. As a result, the Board revoked Antler’s liquor license and ordered the forfeiture of its bond. Antler appealed this decision to the trial court, which held that the revocation was not warranted because of mitigating factors and reduced the penalty to a 90-day suspension. This Court affirmed the trial court’s order and the Board did not file a petition for allowance of appeal to the Supreme Court.

Antler’s suspension started on December 6,1988, and was to terminate on March 6, 1989. However, Antler’s license expired on January 31, 1989. Under Section 470(a) of the Code, 47 P.S. § 4-470(a), Antler could have filed an application for the renewal of its license 60 days before the expiration of its old license. Instead, Antler applied on January 27, 1989 under an exception to Section 470(a), which allows for applications after the 60-day period as long as the applicant shows reasonable cause and pays an additional late filing fee of $100.00. The Board accepted the application but informed Antler that the Board could not ensure that the license would be renewed before the expiration of the old license, because the Board had to obtain certification from the State that all State taxes had been paid. Antler’s license was renewed on March 3, 1989 and on March 6, 1989, the cafe was reopened for business.

The Board argues that Antler avoided serving part of its suspension penalty by not filing for renewal of its license until January 27, 1989, three days before the expiration. In essence, the Board imposed the additional 34-day suspension upon Antler because, between February 1, 1989 and March 2, 1989, Antler did not have a license which could have been suspended. Therefore, according to the Board, Antler could not have served its suspension during this period of time and circumvented the penalty.

In response, Antler filed a rule to show cause alleging that the 90-day suspension had been served and claiming lack of notice of the amended suspension order. The Board responded with a motion to quash alleging that the trial court lacked jurisdiction, that the suspension had not been served, and that Antler was collaterally estopped from relitigating the issues related to the 90-day suspension. The trial court retained jurisdiction over this case and dismissed the Board’s order imposing the additional 34-day suspension.

Our scope of review in a liquor license suspension case is to determine whether the trial court made errors of law or abused its discretion, and whether the trial court’s findings of fact are supported by substantial evidence. Adair v. Pennsylvania Liquor Control Board, 519 Pa. 103, 546 A.2d 19 (1988); Pennsylvania Liquor Control Board v. The Boardwalk, Inc., 119 Pa.Commonwealth Ct. 555, 547 A.2d 1271, modified, 119 Pa.Cmwlth. 555, 559 A.2d 594 (1988). First, we must determine whether the trial court erred as a matter of law when it retained jurisdiction over this appeal from the Board.

Section 933(a)(l)(v) of the Judicial Code, 42 Pa.C.S. § 933(a)(l)(v) provides:

(a) General rule. — Except as otherwise prescribed by any general rule adopted pursuant to section 503 (relating to reassignment of matters), each court of common pleas shall have jurisdiction of appeals from final orders of government agencies in the following cases:

(1) Appeals from Commonwealth agencies in the following cases:

(v) Determinations of the Pennsylvania Liquor Control Board appealable under the act of April 12, 1951 (P.L. 90, No. 21), known as the ‘Liquor Code,’ except matters appealable under sections 433, 444 or 710 of the act. Except as otherwise prescribed by general rules, the venue of such matters shall be as provided’ in the act. (Emphasis added, footnote omitted.)

Furthermore, the Supreme Court states:

The trial court’s responsibility is to conduct a de novo hearing or review, make a determination of the facts and applicable law, and then sustain, reject, alter or modify the penalty imposed by the Board. This is so whether the lower court hears the evidence anew, takes additional testimony or merely reviews the official transcript of the proceedings before the Board.

Id., 519 Pa. at 114-15, 546 A.2d at 25. Application of both statutory and common law indicates that the trial court has jurisdiction over the present matter. Therefore, Antler’s petition to show cause was properly filed and the trial court’s retention of jurisdiction was appropriate.

The Board argues that its order resetting the license suspension is not a matter appealable under the Liquor Code. Therefore, the trial court cannot assume jurisdiction pursuant to 42 Pa.C.S. § 933(a)(l)(v), because that section specifies that the trial court has jurisdiction over appeals under the Code. Section 471 of the Code, 47 P.S. § 4-471, governs appeals from enforcement matters where a fine, suspension, or revocation has been imposed. According to the Board, since this is a rescheduling of an already decided suspension, Section 471 does not apply. The Board, however, mischaracterizes the Board’s actions in this case, since the Board did not merely reschedule Antler’s penalty. As was correctly noted by the Honorable John C. Dowling of the Dauphin County Court of Common Pleas, “a mere resetting [or rescheduling] of a suspension occurs when the Board shifts the dates upon which a penalty is to commence and terminate, but does not alter the length of the penalty imposed.” Antler Cafe v. Pennsylvania Liquor Control Board, (Court of Common Pleas of Dauphin County, No. 191 M.D. 1989, filed July 11, 1989, slip op, at 6). This case involves the Board’s imposition of an additional 34-day penalty. 9 Section 471 of the Code specifically grants standing to appeal to the court of common pleas to any person who is “aggrieved” by an action of the Board involving the suspension or revocation of a liquor license. Hence, Antler has standing, pursuant to Section 471 of the Code, because it was aggrieved by the Board’s imposition of an additional 34-day suspension penalty.

Finally, we reject the Board’s contention that Antler could not serve a suspension of its liquor license privilege when its license had expired. The Board contends that Antler should have filed its license renewal application at least 60 days before its license expired in compliance with Section 470(a) of the Code, 47 P.S. § 4-470(a). According to the Board, if Antler had renewed in a more timely fashion, there would be no controversy because the suspension would have been served while the license was in effect. The Board also argues that Antler should not be permitted to choose when and how the Code will apply. This is not what Antler has done. Section 470(a) of the Code states: “[T]he board, in its discretion, may accept a renewal application filed less than sixty days before the expiration date of the license with the required bond and fees, upon reasonable cause shown and the payment of an additional filing fee of one hundred dollars ($100.00)____” 47 P.S. § 4-470(a).

Antler relied on this provision and filed its application after the start of the 60-day period. The Board accepted the application and issued the license. Antler should not be penalized for its reliance upon this provision. Furthermore, it was within the Board’s discretion to reject Antler’s application. However, it accepted the application consistent with the statute. Additionally, the Board, not Antler, had control over when its license would be renewed and, therefore, Antler did not select the time when the Code would apply. The fact that the license was not in effect during the last 34 days of the suspension is due to the timing of the administrative procedure of license renewal, combined with the application of the exception to the 60-day rule of Section 470(a) of the Code. Hence, Antler should not be penalized for the 34-day interim period while its license was expired and suspended at the same time.

We note that the net result in this matter was that Antler was without its license for 90 days, which was the obvious intention of the trial court.

Accordingly, the order of the trial court dismissing the Board’s order, which imposed an additional penalty 34-day suspension, is affirmed.¹

ORDER

AND NOW, this 19th day of February, 1991, the order of the Court of Common Pleas of Dauphin County in the above-captioned matter is affirmed.

1 . This opinion was reassigned to the present author on January 14, 1991.