DocketNumber: Nos. 1495 C.D. 1990 and 1618 C.D. 1990
Citation Numbers: 144 Pa. Commw. 5, 601 A.2d 380
Judges: Colins, Narick, Smith
Filed Date: 7/24/1991
Status: Precedential
Modified Date: 6/24/2022
Lewis E. Egbert (Egbert) appeals an order of the Court of Common Pleas of McKean County (trial court), dismissing both Egbert’s and the Commonwealth of Pennsylvania’s (Commonwealth) exceptions to the trial court’s order requiring the forfeiture of items, including equipment, materials and utensils, found in Lewie’s Lounge.
Egbert is the owner of Lewie’s Lounge located at 434 South Avenue, Bradford, Pennsylvania, and was found guilty of selling alcoholic beverages on his premises without a license. Before opening the lounge on South Avenue, Egbert owned a smaller tavern. However, for reasons not pertinent to this opinion, the license from the smaller tavern was never transferred to the South Avenue tavern. Nevertheless, Egbert stocked the South Avenue tavern with various alcoholic beverages and proceeded to operate the unlicensed tavern.
On December 10, 1988 and December 14, 1988, undercover members of the Pennsylvania State Police purchased alcoholic beverages at Lewie’s Lounge and subsequently raided the tavern and seized the items at issue in this case. These items included:
(1) 36 straight chairs red cushion black legs;
(2) 8 bar stools black cushion;
(3) 4 bar stools brown cushion;
(4) 8 cocktail tables brown top;
(5) 2 speakers brown and black color;
*8 (6) 1 jukebox Rowe AMI with Lewie’s name;
(7) 2 gum ball machines with stand; Kiwanis sign attached;
(8) 1 piano Winter brand name;
(9) 1 Penncrest receiver — 12130 serial;
(10) 2 condom machines; 1 pink 1 white color;
(11) 1 brown color metal dolly;
(12) 1 Penncrest electric range white color;
(13) 1 remote control box TV archer;
(14) 1 Mr. Coffee system;
(15) 1 box with toaster and blender;
(16) 2 fire extinguishers; 1 Sentry — 1 General Detroit Corp.;
(17) 1 meat sheer;
(18) 1 Gloekler green door from cooler;
(19) 1 Nesco deep fryer;
(20) 1 stainless steel range hood;
(21) 1 note tablet; Crown graphics and printing;
(22) 1 cigarette machine — C143872 serial number;
(23) 2 notebooks Kendall cover;
(24) 1 pool table — United Billiards;
(25) 1 TV Zenith make with remote control
(26) 1 J.C. Penney stereo rec. (1) and speakers (2) modular component;
(27) 1 J.C. Penney microwave oven;
(28) 1 Hoover upright vacuum sweeper;
(29) 4 glass and wood cooler doors;
(30) 1 rack with chips, pretzel assorted;
(31) 1 Co2 tank green color — 1 W.C. Field picture;
(32) 2 metal shelves from cooler;
(33) 2 Co2 tanks grey color with gauges behind bar;
(34) 1 envelope containing documents and photos from behind bar;
(35) 1 cold plate with lines;
(36) 1 stainless steel three-well sink;
(37) 1 single well stainless steel sink;
*9 (38) 3 wooden shelves approximately 7 ft. by 1 ft.
(39) 2 shelves approximately 4 ft. by 6 in. back bar wall.
The issue to be decided is whether the trial court erred in ordering the forfeiture of the above-listed items of personal property found on the premises where illegal sales of alcohol occurred.
Finally, pursuant to Section 602(e)5 of the Code,
[i]f the Commonwealth shall produce evidence that the property in question was unlawfully possessed or used, the burden shall be upon the claimant to show (1) that he is the owner of said property, (2) that he lawfully acquired the same, and (3) that it was not unlawfully used or possessed ... but if it appears that said ... equipment, material or utensil was ... unlawfully possessed or used, the court shall order the same destroyed, delivered to a hospital, or turned over to the board or enforcement bureau____ (Emphasis added.)
In One Homemade Trailer, this Court affirmed the seizure of a truck which transported beer to an unlicensed tavern. Because the truck delivered the beer which was sold in the unlicensed tavern, the trailer was found to be used for the illegal sale of beer.
We agree with the Commonwealth’s argument that “the equipment, materials and utensils ... were used either to promote the sale of alcohol, facilitate the service to customers, or to accommodate the customer’s convenience or entertainment in [the] unlicensed tavern.”
Testimony of record in this case indicates that the 2 notebooks seized by the Bureau contained information related to bar tabs and purchases of individual patrons. Hence, these also evidence and were integral parts of the illegal sale of alcohol in the tavern. The other note tablet and envelope containing documents and photos from the bar were also related to the bar’s operation and, therefore, were integral to it as well.
We agree with the trial court’s conclusion that the Commonwealth properly seized all of the items listed on the trial court’s order, because each item was an integral part of the illegal operation of an unlicensed tavern.
Therefore, we affirm the order of the trial court directing the forfeiture of the items on the list, with the exception of the two gum ball machines, which shall be returned to their appropriate owner, upon proper petition to the Court of Common Pleas of McKean County.
ORDER
AND NOW, this 24th day of July, 1991, the order of the Court of Common Pleas of McKean County in the above-
. In an appeal challenging a forfeiture order, neither the Pennsylvania Rules of Civil Procedure, nor the Liquor Code, (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 — 9-902, requires the trial court to make formal findings of fact and conclusions of law. Our appellate review pertains to the trial court’s application of the Code. We examine the informal findings of fact and conclusions of law by the trial court and decide whether the record convincingly demonstrates the violation charged. One Homemade Trailer v. Commonwealth, 71 Pa.Commonwealth Ct. 542, 455 A.2d 284 (1983).
. 47 P.S. § 4 — 491(1).
. 47 P.S. § 4-492(2).
. 47 P.S. § 2-211(a)(3).
. 47 P.S. § 6-602(e).
. Brief for Commonwealth at 14.
. The only items which were not integral to the operation of the illegal tavern were the 2 gum ball machines labeled Kiwanis indicating that they were the property of the Kiwanis Club. The Kiwanis Club collects money for charity and, therefore, the gum ball machines were not integral to the purpose of selling illegal alcohol.