Gino's Bar, Inc. v. PA LCB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gino’s Bar, Inc. :
:
v. :
: No. 110 C.D. 2018
Pennsylvania Liquor : Argued: October 16, 2018
Control Board, :
:
Appellant :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: November 20, 2018
The Pennsylvania Liquor Control Board (PLCB) appeals from the
December 21, 2017 order of the Court of Common Pleas of Allegheny County (trial
court) holding that PLCB erred in its June 15, 2016 order denying the request of
Gino’s Bar, Inc. (Bar) to extend the safekeeping period for its restaurant liquor
license. For the reasons set forth below, we affirm the trial court’s order.1
1
The December 21, 2017 trial court “order” appealed from was not titled as such or entered onto
the docket as an order, but instead was the concluding section of the trial court’s opinion of the
same date. While this appears to violate Rule of Appellate Procedure 301(a) and (b), which
requires that an order be entered on the docket in a separate document to be appealable, it is plainly
evident that the trial court’s December 21, 2017 opinion mandated the reversal of PLCB’s June
15, 2016 order and was intended to be the final disposition of the Bar’s appeal from the PLCB
order. Furthermore, the Bar has not objected to our consideration of this appeal and neither party
has brought this issue to the Court’s attention. Accordingly, any issue related to the failure of the
trial court to enter an order is waived, and we will address the merits of this appeal. See Parents
On December 31, 2011, the building at 1021 Chartiers Avenue, in
McKees Rocks where the Bar operated burned down in a fire. (PLCB Opinion,
Finding of Fact (F.F.) ¶1, Reproduced Record (R.R.) 155a.) Egidio Mattucci, the
sole shareholder of the Bar, died in the fire. (Id.) On January 16, 2012, Samuel
Pasquarelli, the executor of Mr. Mattucci’s estate, informed PLCB by letter of the
recent events and stated that he had now assumed the role of president of the Bar.
(R.R. 75a-76a.) PLCB informed the Bar that it was treating the January 16, 2012
letter as the return of the Bar’s license to PLCB for safekeeping, beginning the three-
year safekeeping period under Section 474.1 of the Liquor Code (Code).2 (R.R. 78a-
79a.)
On April 23, 2012, the Bar and Kings and Queens Lounge, Inc.
submitted an application to transfer the license from the Bar to Kings and Queens
Lounge for an establishment in McKees Rocks. (R.R. 92a-98a.) Though PLCB
cancelled the transfer application during the fall of 2012, the application was
reinstated pursuant to a January 3, 2013 letter from the attorney representing the
Against Abuse In Schools v. Williamsport Area School District, 594 A.2d 796, 800 (Pa. Cmwlth.
1991) (treating final paragraph of trial opinion stating that it was reaffirming prior orders in the
case as an appealable order notwithstanding Pa. R.A.P. 301(b)); Brandschain v. Lieberman, 466
A.2d 1035, 1036 n.1 (Pa. Super. 1983) (ruling that opinion constituted an appealable order where
appellee did not object, the opinion was intended to be the final decision in the case and the opinion
was referred to as an order on the docket).
2
Act of April 12, 1951, P.L. 90, as amended, added by the Act of December 9, 2002, P.L. 1653,
47 P.S. § 4-474.1. Section 474.1 was most recently amended by the Act of June 8, 2016, P.L. 273,
effective August 8, 2016, subsequent to the events at issue in this appeal. The 2016 amendment
made several changes including reducing the initial safekeeping period to two years and increasing
the fees to be paid for extensions of the safekeeping period. When the language of the current
version of Section 474.1 conflicts with the version in effect from November 29, 2006 to August 7,
2016, references to Section 474.1 in this opinion are to the former version of the statute.
2
applicants seeking additional time to respond to PLCB’s concerns. (R.R. 100a-02a,
105a-06a.)
PLCB sent three additional letters to the Bar in 2013 and 2014
regarding the safekeeping period for the license. (R.R. 80a-84a.) In each of these
letters, PLCB reminded the Bar that the three-year safekeeping period would expire
on January 16, 2015 and that, pursuant to Section 474.1(b) of the Code, 47 P.S. § 4-
474.1(b), the license would be immediately revoked as of this date unless there was
a transfer application or application to reissue the license pending or unless PLCB
had approved a one-year extension of the safekeeping period. (R.R. 80a, 82a, 84a.)
On December 17, 2014, PLCB sent a letter stating that no application to transfer or
reissue the license was pending, and unless the Bar filed an application to transfer or
reissue the license or sought to extend the safekeeping period before its scheduled
expiration on January 16, 2015, the license would be immediately revoked. (R.R.
85a.) However, in a January 16, 2015 letter, PLCB apologized for its error in its
letter from the prior month and recognized that the Kings and Queens Lounge
transfer application remained pending. (R.R. 86a.) Therefore, as of January 16,
2015, the date of the expiration of the three-year safekeeping period, a transfer
application was pending before PLCB and the license was not subject to immediate
revocation under the Code.
On April 6, 2015, Kings and Queens Lounge notified PLCB that it was
withdrawing its transfer application. (R.R. 111a.) PLCB sent the Bar a letter on
April 10, 2015 stating that, in light of the fact that the license had expired three
months prior on January 16, 2015, the Bar must within 30 days submit either: (i) a
transfer application, (ii) an application to reissue the license from safekeeping, or
3
(iii) an application to extend the safekeeping period. (R.R. 87a-88a.) The letter
further stated:
If a transfer application or Application for Return of
License from Safekeeping is submitted, the investigative
report must show that the applicant is in full compliance
and the application is in line for approval. If the
application is not completely in line for approval upon
receipt of the investigative report, then an Application for
Extension of Safekeeping Period, form PLCB-2319, and
requisite fee must be submitted. Failure to submit the
Application for Extension of Safekeeping Period within
thirty (30) days of the date requested will result in the
revocation of the license. No requests for reinvestigation
will be honored unless and until the safekeeping period has
been properly extended.
(R.R. 88a (emphasis in original).)
On May 11, 2015, the Bar filed a second transfer application with
BCKC, LLC as the prospective transferee on the last day of the 30-day deadline set
forth in PLCB’s April 10, 2015 letter.3 (R.R. 113a-17a.) On July 21, 2015, PLCB
sent a letter to the attorney representing the applicants that listed various deficiencies
in the application, requiring a response within 30 days or the application “may be
considered for cancellation.” (R.R. 119a-21a.) The letter stated that “since the
transfer [is] not in line for approval, the Application for Safekeeping Period…must
be filed for the transferor,” and separately that “if this pending transfer is cancelled
for any reason, the application for Extension of Safekeeping and fee will be
required.” (R.R. 119a, 121a.) On August 20, 2015, PLCB sent a letter to the attorney
for the applicants stating that PLCB had not been provided with any of the
3
The transfer application was filed on the 31st day after the April 10, 2015 letter, but the 30th day,
May 10, 2015, was a Sunday.
4
information requested in its prior letter and therefore the application would be
cancelled for non-compliance unless the applicants notified PLCB within 30 days
that they were prepared to proceed. (R.R. 122a.)
On October 1, 2015, PLCB issued two letters. The first letter directed
to both applicants stated that because no response had been received to PLCB’s July
21 and August 20, 2015 letters, the pending transfer application to BCKC was
cancelled for non-compliance. (R.R. 123a.) The second letter directed to the Bar
stated that because the transfer application was cancelled, “in accordance with
Section 474.1 of the Liquor Code, the license has been revoked effective October 1,
2015 by operation of law….” (R.R. 125a.)
On October 7, 2015, the Bar sent a letter enclosing an application to
extend the safekeeping period for one year with the required $5,000 fee. (R.R. 127a.)
The letter further stated that if the application was denied, the letter should be
considered a formal request to challenge the denial of the application and revocation
of the license. (Id.)
PLCB deemed the Bar’s October 7, 2015 application to extend the
safekeeping period to be untimely and therefore treated this letter as a request for
nunc pro tunc relief to file the application. A hearing was held on the nunc pro tunc
request on March 24, 2016 before a hearing examiner. No testimony was taken at
the hearing nor was any evidence submitted aside from correspondence between
PLCB and the Bar and the prospective transferees and a PLCB internal
memorandum. PLCB issued an order on June 15, 2016 denying the request for nunc
pro tunc relief with respect to the October 7, 2015 application. (R.R. 7a.)
In a later opinion issued in support of the Board’s order, PLCB rejected
the Bar’s argument that it should have been entitled to file an application to extend
5
the safekeeping period within 30 days of the October 1, 2015 cancellation of the
BCKC transfer application just as PLCB provided after the earlier withdrawal of the
Kings and Queens Lounge transfer application because Section 474.1 of the Code
did not authorize a 30-day “grace period.” (PLCB Opinion, Discussion at 15,
Conclusion of Law (C.L.) ¶5, R.R. 168a, 173a.) Furthermore, PLCB found the two
scenarios to be different because the termination of the first transfer application was
at the request of Kings and Queens Lounge while the October 1, 2015 cancellation
was as a result of the applicants’ failure to respond to either of PLCB’s letters in July
or August of that year that described deficiencies in the application. (Id., Discussion
at 14-15, R.R. 167a-68a.) PLCB thus concluded that, when the BCKC transfer
application was cancelled on October 1, 2015, the Bar’s license was also
immediately revoked on that date by operation of law pursuant to Section 474.1(b)
and that there was no authority to even entertain an application to extend the
safekeeping period after the revocation. (Id., Discussion at 15-16, C.L. ¶6, R.R.
168a-69a, 173a.) Nevertheless, PLCB determined that even if a nunc pro tunc
analysis was conducted, PLCB determined that nunc pro tunc relief would be
inappropriate because the Bar provided no argument or evidence that there was any
extraordinary circumstances such as an administrative breakdown or non-negligent
conduct of the Bar or its counsel that would justify the Bar’s disregard of the two
PLCB letters advising of defects in the BCKC application. (Id., Discussion at 17-
18, C.L. ¶7, R.R. 170a-71a, 174a.)
The Bar appealed PLCB’s order to the trial court on July 12, 2016, and
PLCB filed a motion to dismiss in which it argued that the appeal was untimely
because it was not filed within the 20-day time period set forth in Section 464 of the
Code, 47 P.S. § 4-464. At the de novo hearing held on November 3, 2016, the trial
6
court first heard oral argument on the motion to dismiss and denied it, concluding
that the appeal was timely. (Hearing Transcript at 12, R.R. 190a.) The trial court
then considered the Bar’s appeal, although no testimony was taken and no new
exhibits were admitted beyond those introduced at the PLCB hearing.
In its opinion and order reversing the PLCB order, the trial court
concluded that PLCB’s April 10, 2015 letter gave the Bar reason to believe that the
denial of a pending transfer application would trigger a 30-day period in which it
would be entitled to either file a new transfer application or request an extension of
the safekeeping period. (Trial court opinion at 5.) The trial court thus found that the
Bar’s application to extend the safekeeping period was timely and that the period
must be extended for one year pursuant to Section 474.1(g) of the Code. (Id.) PLCB
appealed the trial court’s decision to this Court.4
On appeal, PLCB first argues that the trial court erred by denying its
motion to dismiss because the Bar’s appeal to the trial court was filed 27 days after
PLCB issued its order on June 15, 2016, beyond the 20-day period prescribed in
Section 464 of the Code. Section 464 provides that an applicant for a malt or brewed
4
In cases in which the trial court conducts a de novo hearing, this Court’s review is limited to
whether the trial court’s findings of fact are supported by substantial evidence and whether the
trial court abused its discretion or committed an error of law. Pennsylvania State Police, Bureau
of Liquor Control Enforcement v. Cantina Gloria’s Lounge, Inc., 639 A.2d 14, 17-20 (Pa. 1994);
Pennsylvania Liquor Control Board v. Bartosh, 730 A.2d 1029, 1032 (Pa. Cmwlth. 1999). In
Cantina Gloria’s Lounge, the Supreme Court held that a court of common pleas was required to
conduct a de novo review of appeals concerning the suspension or revocation of a license under
Section 471 of the Code, 47 P.S. § 4-471, as courts of common pleas do in cases brought under
Section 464 related to denials of the issuance, renewal and transfer of a license even though Section
471 does not explicitly authorize de novo review as Section 464 does. Section 474.1, like Section
471, also does not contain language authorizing de novo review by a court of common pleas; while
it appears that no court has addressed the proper standard of review from a PLCB appeal brought
under Section 474.1 of the Code, neither party objected to the trial court hearing the appeal from
PLCB’s June 15, 2016 appeal de novo.
7
beverage license other than a public service license, or the renewal or transfer
thereof, or an applicant for the renewal of an amusement permit may appeal the
denial of an application to the court of common pleas within 20 days of the PLCB
order. 47 P.S. § 4-464. This Court has recognized that the 20-day appeal period of
Section 464 is mandatory and jurisdictional and may not be extended as a matter of
grace and indulgence. J.V. Lounge, Inc. v. Pennsylvania Liquor Control Board, 131
A.3d 517, 521 (Pa. Cmwlth. 2015); see also Arena Beverage Corporation v.
Pennsylvania Liquor Control Board, 97 A.3d 444, 448 (Pa. Cmwlth. 2014) (“[T]he
timeliness of an appeal goes to the jurisdiction of the [court] appealed to and its
competency to act.”) (quoting Coshey v. Beal, 366 A.2d 1295, 1297 (Pa. Cmwlth.
1976)).
In this case, however, the Bar is not appealing a denial of a failure to
issue, renew or transfer a license that would invoke Section 464 of the Code; instead,
the Bar is appealing the denial of an application for a one-year extension of the
safekeeping period under Section 474.1. Section 474.1 does not contain a time limit
for appeals. Section 5571(b) of the Judicial Code provides that, “[e]xcept as
otherwise provided…, an appeal from a tribunal or other government unit to a court
or from a court to an appellate court must be commenced within 30 days after the
entry of the order from which the appeal is taken, in the case of an interlocutory or
final order.” 42 Pa. C.S. § 5571(b). As our Supreme Court has explained, “[g]iven
the overriding purpose of the Judicial Code, the obvious intent of the legislature in
enacting this section was to make uniform the appeal period applicable to cases heard
by our courts.” In re Appeal of Chartiers Valley School District from Assessment of
Property of Development Dimensions International, Inc., 462 A.2d 673, 676 (Pa.
1983) (holding that when Section 5571(b) was added to the Judicial Code in 1978 it
8
was intended to repeal all contrary time limits for appeals from government
agencies); see Claims of Linefsky, 632 A.2d 1061, 1063 (Pa. Cmwlth. 1993). Thus,
in the absence of specific statutory language in Section 474.1 stating that appeals
from the denial of an extension of the safekeeping period are governed by a 20-day
appeal period, the general 30-day time period for filing an appeal of Section 5571(b)
of the Judicial Code is applicable to appeals under Section 474.1. Because the Bar’s
appeal to the trial court was taken within 30 days of the entry of the PLCB order, the
appeal was timely and the trial court correctly denied PLCB’s motion to dismiss.5
As we have determined that the appeal from PLCB’s order was timely,
we must next address whether the Bar’s October 7, 2015 application for a one-year
safekeeping period was timely under Section 474.1 of the Code. Section 474.1
provides that any restaurant, eating place retail dispenser, hotel, importing
distributor and distributor license that is not in use for more than fifteen days must
be returned to PLCB where it will be held in safekeeping. 47 P.S. § 4-474.1(a). At
the time of the events at issue in this appeal, the initial safekeeping period, before
5
We further note that none of the three cases that PLCB cites supports its argument that the Bar’s
appeal was untimely. J.V. Lounge was a license renewal case while J & R’s Smokehouse, Inc. v.
Pennsylvania Liquor Control Board, 611 A.2d 786 (Pa. Cmwlth. 1992), related to the denial of an
application to issue a license. Each case therefore clearly was an appeal under Section 464 of the
Code. Pennsylvania Liquor Control Board v. Sherman, 566 A.2d 362 (Pa. Cmwlth. 1989), which
PLCB argues directly rejects the Bar’s argument that the 30-day appeal period of Section 5571(b)
is applicable to this appeal, in fact relates to the issue of whether an appeal from a PLCB
determination was properly filed in the court of common pleas or should have been brought in the
first instance in this Court pursuant to the three exceptions to common pleas jurisdiction set forth
in Section 933(a)(1)(v) of the Judicial Code. There is no question in this case that the trial court,
rather than this Court, had jurisdiction over the Bar’s appeal of the PLCB determination.
9
any extensions, was three years.6 Former 47 P.S. § 4-474.1(b). Section 474.1
additionally provided, in relevant part:
(b) The board may hold the license in safekeeping for a
period not to exceed three consecutive years. Any license
remaining in safekeeping for more than three consecutive
years shall be immediately revoked by the Bureau of
Licensing unless a transfer application or request for
reissue from safekeeping has been filed prior to the
expiration of the three-year period or unless the board has
approved a request to extend the safekeeping for an
additional year as set forth in subsection (g). …
(c) In the event a transfer application filed prior to the
expiration of the three-year period is disapproved by the
board, then the license may remain in safekeeping so long
as the licensee has submitted and the board has approved
a request to extend the safekeeping for an additional year
as set forth in subsection (g). Such request must be
submitted within thirty days of the board’s decision
notwithstanding any appeal filed in the matter….
…
(g) (1) A licensee whose license is subject to this section
may, upon written request, apply to the board to allow the
license to remain in safekeeping for an additional one year.
The written request must be accompanied by a five
thousand dollar ($5,000) fee for licenses placed in
safekeeping from counties of the first class, second class,
second class A, third class and fourth class…. The board
shall approve the request unless the license or licensee no
longer meets the requirements of this act or the board’s
regulations.
Former 47 P.S. § 4-474.1(b), (c), (g)(1).7
6
The initial safekeeping period was reduced to two years in the 2016 amendments to Section
474.1. 47 P.S. § 4-474.1(b).
7
In addition to reducing the initial safekeeping period to a term of two years rather than three
years, the 2016 amendments to Section 474.1 also doubled the fees for a one-year extension of the
10
PLCB argues that the trial court erred in ruling that the Bar’s October
7, 2015 application to extend the safekeeping period was timely because Section
474.1 mandated that the license was revoked on October 1, 2015, the date that the
BCKC transfer application was cancelled. PLCB asserts that, when the three-year
safekeeping period expired on January 16, 2015, the application to transfer the
license to Kings and Queens Lounge remained pending and therefore the immediate
revocation of Section 474.1(b) was tolled. Though PLCB gave the Bar 30 days to
file a new transfer application, application to reissue the license, or application to
extend the safekeeping period when the Kings and Queens transfer application was
withdrawn on April 6, 2015, PLCB asserts that Section 474.1 offered no 30-day
grace period after the Bar filed a second transfer application to BCKC. PLCB argues
that, when the BCKC transfer application was cancelled for non-compliance on
October 1, 2015 following the applicants’ lack of response to PLCB’s July 21 and
August 20, 2015 letters, the Bar’s three-year safekeeping had expired and the Bar
had failed to file an application to transfer the license, reissue the license or extend
the safekeeping period. As a consequence of the Bar’s failure to act and the resulting
cancellation of the transfer application, PLCB asserts that the Bar’s license was
subject to the immediate revocation of Section 474.1(b). Therefore, according to
PLCB, it was impossible for it to consider the Bar’s October 7, 2015 application to
extend the safekeeping period on a license that had been revoked by operation of
law six days prior.
safekeeping period after the expiration of the initial safekeeping period and instituted a new price
scheme whereby the fee for additional one-year extensions of the safekeeping period would double
each year over the amount charged the year prior. 47 P.S. § 4-474.1(g)(1).
11
We conclude that, contrary to PLCB’s arguments, neither Subsection
(b) of Section 474.1 nor any other part of this statute required the immediate
revocation of the Bar’s license on October 1, 2015 when the BCKC transfer
application was cancelled. As a result, PLCB’s determination was that the October
7, 2015 application to extend the safekeeping period filed six days after the
cancellation was not mandated by Section 474.1.8 Section 474.1(b) states that a
licensee whose license is in safekeeping must take one of three actions before the
expiration of the initial safekeeping period: (i) file an application to transfer the
license to another potential license holder, (ii) apply to have the license reissued to
the licensee from safekeeping, or (iii) apply for a one-year extension of the
safekeeping period. 47 P.S. § 4-474.1(b). If the licensee fails to choose one of those
three options, then the license is immediately revoked. Id. Had the Bar failed to file
an application to reissue or transfer the license or an application to extend the
safekeeping period by January 16, 2015, the end of the three-year safekeeping
period, we would have agreed with PLCB that revocation of the license would have
been mandated by law and an application for an extension of the safekeeping period
8
In this matter and in other all matters involving statutory interpretation, we apply the Statutory
Construction Act of 1972, 1 Pa. C.S. §§ 1501–1991, which provides that the “object of all
interpretation and construction of statutes is to ascertain and effectuate the intention of the General
Assembly.” 1 Pa. C.S. § 1921(a); see also Department of Transportation, Bureau of Driver
Licensing v. Weaver, 912 A.2d 259, 264 (Pa. 2006). In construing statutory language, “[w]ords
and phrases shall be construed according to rules of grammar and according to their common and
approved usage.” 1 Pa. C.S. § 1903(a). The clearest indication of legislative intent is generally
the plain language of the statute. Doe v. Franklin County, 174 A.3d 593, 605 (Pa. 2017). “When
the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b); Weaver, 912 A.2d at 264. It is only
when the text of a statutory provision is ambiguous that we will consider the principles of statutory
construction set forth in Section 1921(c) of the Statutory Construction Act, 1 Pa. C.S. § 1921(c),
in order to determine legislative intent. Chanceford Aviation Properties, L.L.P. v. Chanceford
Township Board of Supervisors, 923 A.2d 1099, 1104 (Pa. 2007).
12
would not have been permitted absent grounds for nunc pro tunc relief. However,
in this case, the Bar did file an application to transfer its license to Kings and Queens
Lounge in 2012 and that application remained pending as of January 16, 2015 when
the safekeeping period expired. Therefore, the Bar’s license was not subject to
immediate revocation on January 16, 2015 under Section 474.1(b).
Subsection (c) of Section 474.1 relates to situations where a licensee
has a transfer application pending at the expiration of the initial safekeeping period,
providing that where a transfer application filed prior to the expiration of the
safekeeping period is “disapproved by [PLCB], then the license may remain in
safekeeping so long as” the licensee submits an application to extend the safekeeping
period within 30 days. 47 P.S. § 474.1(c). However, Subsection (c) does not address
the timeframe in which a licensee must act when PLCB allows a second transfer
application and that application is cancelled, as occurred in this case. Furthermore,
Subsection (g) relates to the fees that a licensee must enclose with an application for
a one-year extension of the safekeeping period and the standard for approval of a
request but does not speak to the time in which such an application must be filed.
Thus, Section 474.1 is completely silent as to the situation in the present case where
PLCB allows the licensee to file a second transfer application after a transfer
application pending at the expiration of the safekeeping period and then the second
transfer application is cancelled.9 Moreover, the only mandatory requirement for
PLCB to immediately revoke a license under Section 474.1 exists where the initial
safekeeping expires and no application to transfer, reissue the license or extend the
safekeeping period was filed, a factual scenario that does not exist here.
9
Similarly, PLCB’s regulation related to extensions of the safekeeping period largely reiterates
Section 474.1 and does not address the factual scenario presented here. 40 Pa. Code § 7.31(d).
13
As we conclude that Section 474.1 did not require that PLCB reject the
Bar’s October 7, 2015 application to extend the safekeeping period, we must
determine whether the trial court’s conclusion that the application was timely
constituted an error of law or abuse of discretion. In the April 10, 2015 letter giving
the Bar the opportunity to submit a second transfer application, PLCB stated if the
transfer application “is not completely in line for approval upon receipt of the
investigative report” then an application to extend the safekeeping period would be
required and failure to submit an application to extend “within thirty (30) days of the
date requested will result in the revocation of the license.” (R.R. 88a (emphasis in
original).) In the July 21, 2015 letter listing deficiencies in the BCKC transfer
application, PLCB stated that “if this pending transfer is cancelled for any reason,
the application for Extension of Safekeeping and fee will be required.” (R.R. 121a.)
Read together, these letters give the impression that the Bar would be given an
opportunity to file an application to extend the safekeeping period when “requested”
or in the event the BCKC transfer application was cancelled and that the time period
to file such an application would be 30 days. Furthermore, PLCB did not correct its
representations in later correspondence with the Bar to state that the application to
extend the safekeeping period would be required before the BCKC transfer
application was cancelled. Accordingly, we see no reason to overturn the trial
court’s conclusion that the application to extend the safekeeping period was timely.
PLCB argues that the Bar’s argument that it should have been allowed
30 days to file its application to extend the safekeeping period after the BCKC
transfer application was cancelled is undermined by the fact that the Bar never
responded to either the July 21 or August 20, 2015 letters that noted numerous
deficiencies in the application and required responses within 30 days. Moreover,
14
PLCB asserts that the abundant deficiencies in the BCKC transfer application
demonstrate that the application was invalid and not made in good faith. However,
there is no support in the statute for a requirement that an application to extend the
safekeeping period shall not be permitted after the cancellation of a flawed or bad-
faith transfer application. Similarly, while PLCB indicated in its correspondence
that an application to extend the safekeeping period would be required if the transfer
application was not “completely in line for approval,” these letters left the reasonable
impression that the Bar would have the opportunity to file an application to extend
the safekeeping period and this application would only have to be filed within 30
days after a request or a rejection of the transfer application. Nowhere in its letters
did PLCB include a condition that the Bar would forfeit its opportunity to file a
future application to extend the safekeeping period based on PLCB’s evaluation of
the sincerity or completeness of the transfer application it submitted.
Because we conclude that the trial court, after a de novo review,
appropriately determined that the application to extend the safekeeping period was
timely, we need not consider whether the application should have been accepted
nunc pro tunc. Nevertheless, assuming that the application for an extension of the
safekeeping period was required prior to the cancellation of the BCKC transfer
application and PLCB could only have accepted it nunc pro tunc, we would conclude
that nunc pro tunc relief was warranted in this instance.
Pursuant to Cook v. Unemployment Compensation Board of Review,
671 A.2d 1130 (Pa. 1996), a party seeking nunc pro tunc relief must show (i) that
extraordinary circumstances, involving fraud or breakdown in the administrative
process or non-negligent circumstances related to the party, its counsel or a third
party, caused the untimeliness; (ii) that it filed the document within a short time
15
period after the deadline or date that it learned of the untimeliness; and (iii) that the
respondent will not suffer prejudice due to the delay. Id. at 1131; Bureau Veritas
North America, Inc. v. Department of Transportation, 127 A.3d 871, 879 (Pa.
Cmwlth. 2015). A breakdown in the administrative process occurs where the agency
is negligent, acts improperly or unintentionally misleads a party. Union Electric
Corp. v. Board of Property Assessment, Appeals & Review of Allegheny County, 746
A.2d 581, 584 (Pa. 2000); Carson Helicopters, Inc. v. Unemployment Compensation
Board of Review, 960 A.2d 524, 527 (Pa. Cmwlth. 2008).
In this case, it is clear that PLCB’s correspondence would satisfy the
requirement of a breakdown in the administrative process, specifically, the statement
in PLCB’s April 10, 2015 letter that the application would be required “within thirty
(30) days of the date requested” and the statement in the July 21, 2015 letter that “if
this pending transfer is cancelled for any reason, the application for Extension of
Safekeeping and fee will be required.” (R.R. 88a, 121a (emphasis removed).) These
statements were misleading and provided the Bar with the false impression that it
was not required to submit the application for an extension of the safekeeping period
until after the pending BCKC transfer application was cancelled. Furthermore,
PLCB did not later correct its misleading statement. While there is no evidence that
PLCB acted improperly here, evidence of a malicious intent is not required when a
public officer or agency makes misleading statements that ultimately lead to the late
filing. Thus, in Union Electric, our Supreme Court held that nunc pro tunc relief
was warranted for the appellants where a county board of assessment issued an order
granting an extension of a deadline for filing a tax assessment appeal that went
beyond the date specified in the statute of the last day of February of the year in
which the assessment becomes effective. 746 A.2d at 582, 584 & n.1. Though there
16
was no indication that the county board acted intentionally to subvert the appellants’
right to appeal, the Court held that the board “was cloaked with apparent authority”
when it extended the appeal deadline in violation of express statutory language and
the appellants reasonably relied on the appearance of authority when it relied on the
misleading order. Id. at 584; see also Monroe County Board of Assessment Appeals
v. Miller, 570 A.2d 1386, 1387-88 (Pa. Cmwlth. 1990) (holding that county board
notice indicating that the appellant would have 60 days to appeal from the decision
rather than the 30 days provided by Section 5571(b) of the Judicial Code were
unintentionally misleading and therefore provided cause for nunc pro tunc relief).
Furthermore, the Bar has satisfied the second and third elements of the
Cook test for nunc pro tunc relief. The Bar acted within a short time of learning that
the BCKC transfer application was cancelled on October 1, 2015, filing its
application to extend the safekeeping period six days later, on October 7, 2015.
Finally, PLCB will not be harmed in any way by allowing the Bar’s application to
extend the safekeeping period. PLCB argues that the granting of nunc pro tunc relief
to the Bar would lead to PLCB having to accept dilatory filings by other licensees;
however, any potential harm will be easily avoided by PLCB more clearly
communicating the deadlines for filings in future correspondence.
Accordingly, we conclude that the application to extend the
safekeeping period was timely and should have been accepted by PLCB. Because
PLCB has not argued at any stage of these proceedings that the Bar failed to tender
the required fee and was not otherwise in compliance with the requirements of the
Code or PLCB’s regulations as provided by Section 474.1(g) such that an extension
of the safekeeping period would be inappropriate, we also affirm the trial court’s
17
decision that the application should have been granted and the safekeeping period
extended by one year. The decision of the trial court is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gino’s Bar, Inc. :
:
v. :
: No. 110 C.D. 2018
Pennsylvania Liquor :
Control Board, :
:
Appellant :
ORDER
AND NOW, this 20th day of November, 2018, the order of the Court of
Common Pleas of Allegheny County is hereby AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge