Azarewicz Liquor License Case

RENO and ROSS, JJ., filed dissenting opinions. FINE, J., did not participate in the decision of this case.

Argued March 2, 1948; reargued September 30, 1948. Albert Azarewicz applied to the Liquor Control Board for a restaurant liquor license for premises in Kingston, Pennsylvania. The board found as a fact that "the establishment [sought to be licensed] is located within 300 feet of the Dorranceton Methodist Episcopal Church, which institution has objected to the granting of the license". Exercising the discretion vested solely in it, where the place proposed to be licensed is within 300 feet of a church (§ 403 of the Liquor Control Act, 47 P. S. § 744-403), the board refused the license. No court on appeal has power to review that discretion, except upon making new and different findings of fact.

The applicant appealed to the court of quarter sessions, whichconfirmed the findings of the board but ordered the license to issue. Thus the court below substituted its discretion for that of the board. The church appealed to this Court.

Since the statute provides that the board may refuse a license for premises within 300 feet of a church, the legislative intent is clear that a church has a direct interest to protect and to be protected, and was given a status above and different from that of a remonstrant. It is undoubtedly a party aggrieved by the order of the court below. The statute recognizes that it is actuated by considerations in the public interest, and not by motives of individual advantage; and it stands in an entirely different position from that of a mere resident.

The Liquor Control Act having denied an appeal, our review is, of course, on a narrow certiorari,¹ and is limited to the question of jurisdiction and the regularity of the proceedings. See the comprehensive review of Justice STERN in KaufmanConstruction Company v. Holcomb et al., 357 Pa. 514, 517,55 A.2d 534, citing Grime et al. v. Department of Public Instructionof Commonwealth of Pennsylvania, 324 Pa. 371, 188 A. 337. By a long line of decisions we have held that the proceedings are irregular where, on a matter within the board's discretion, the court of quarter sessions, without making specific and different findings of fact, undertakes to alter, change or rescind the discretion exercised by the board, — usually a penalty imposed:Appeal of East End Ex-Service Men's Association, 162 Pa. Super. 512, 58 A.2d 194, and the cases cited therein.

Where, under the facts found, there is no latitude of decision, we cannot correct errors in law. A different situation is presented where, as here, under the facts found, a discretion is to be exercised as to what the decision shall be. The facts being here admitted, and the statute vesting in the board the sole discretion, under the facts found, either to grant or to refuse the license, these proceedings were irregular, unless some factor gave to the court below that which it clearly did not possess, i.e., a discretion to grant or refuse the license; and we must reverse unless the court below regularized them.

The attempt to make the proceedings regular consisted only in the court's promulgation of an error. Since it did not possess the discretion to grant or refuse the license, it could not obtain it by making a mistake. The court, in spite of the Act, held that the board had no discretion, but was compelled to issue the license. To rationalize this the court said that the applicant had a malt or brewed beverage license in the same premises,² (which was true), and that the instant application was not for a new license, but in substitution or exchange of one type of license for another.

In Kester's Appeal, 140 Pa. Super. 293, 14 A.2d 184, we said: "The respective licenses authorized by the several statutes are different and distinct, and transfers or exchanges from onekind of license to the other are not contemplated, except on thebasis of new applications, which are subject to the limitations prescribed by the Act. . .. See Spankard's Liquor License Case, 138 Pa. Super. 251,10 A.2d 899." (Emphasis supplied.) Nowhere in the Liquor Control Act is there authority for the proposition that one type of license may be exchanged for another.

The commission of an error obviously neither added to nor detracted from the proceedings. The proceedings could neither be vitiated nor changed by the addition of nothing. The error was simply a nullity. The proceedings of the court below remained irregular in spite of it.

The doctrine now enunciated is not contrary to anything said inGrime et al. v. Department of Public Instruction of Commonwealthof Pennsylvania, 324 Pa. 371, 188 A. 337, in which an administrative body held that it had no power to issue an undertaker's license, and the court of common pleas, on appeal, affirmed the board. In the instant case our holding is but to the effect that, where a discretion is vested exclusively in the administrative tribunal (and not in the courts), on appeal, the court below cannot substitute its discretion for that of the board by the promulgation of an erroneous rule of law. To do so is but a negation of the law, which the appellee here clearly recognized by the statement that this Court could not reverse even if the court below had held, in the teeth of the statute, that the board had no discretion. It is unfortunate that in certain classes of cases, including those involving liquor, greater objectivity is not attained by reviewing courts. We add that we are, of course, familiar with the fact that in the liquor penalty cases, the statute is silent as to an appeal from the court, and that this permits a broader review. But we also hold that on the narrow certiorari, where the sole discretion is vested in an administrative body, the court below cannot reverse this discretion by promulgating a clear error of law, and if attempted it is reviewable by this Court on a narrow certiorari, for the record is not regular. It must also be realized that under the statutory provision this Court "may affirm, reverse, amend or modify any order, judgment or decree as it may think to be just. . . ." (Act of June 24, 1895, P.L. 212, § 8, par. 8, 17 Pa.C.S.A. § 192) . This is the same statutory declaration as that pertaining to the Supreme Court (Act of June 24, 1895, P.L. 212, § 9, par. 4, 17 Pa.C.S.A. § 195).

The order of the court below is reversed at the cost of the appellee; the order of the Pennsylvania Liquor Control Board is reinstated, and the restaurant liquor license of the applicant is cancelled. The applicant's malt or brewed beverage license is restored.

RENO and ROSS, JJ., filed dissenting opinions. FINE, J., did not participate in the decision of this case.

¹ Independent Order of Sons of Italy Club Liquor License Case,161 Pa. Super. 448, 55 A.2d 546.

² Issued prior to the 1937 reënactment and amendment to § 403.