Matter of Caylor

31 B.R. 821 (1983)

In the Matter of Denny L. CAYLOR and Mary Jo Caylor, Individually and t/a Iron Kettle, Debtors.
Denny L. CAYLOR and Mary Jo Caylor, Individually and t/a Iron Kettle, Plaintiffs,
v.
Norman N. MOSS and Mary M. Moss; Pennsylvania Liquor Control Board; and Warren R. Keck, III, Interim Trustee, Defendants.

Bankruptcy No. 83-00170E, Adv. No. 83-0195.

United States Bankruptcy Court, W.D. Pennsylvania.

July 14, 1983.

P. Raymond Bartholomew, Cusick, Madden, Joyce & McKay, Sharon, Pa., for plaintiffs.

Terry K. Wheeler, Greenville, Pa., for Norman N. Moss, et ux, defendants.

Warren R. Keck, III, Voorhies, Keck, Rowley & Wallace, Greenville, Pa., pro se.

MEMORANDUM AND ORDER ADJUDICATING DEBTORS' EXEMPTION RIGHTS IN PENNSYLVANIA LIQUOR LICENSE AND VALIDITY OF ALLEGED SECURITY INTEREST THEREAGAINST

WILLIAM B. WASHABAUGH, Jr., Bankruptcy Judge:

The debtors ask us to determine their rights of exemption in a certain Pennsylvania Liquor License or proceeds of sale thereof and the validity of a security interest and levy thereunder pursuant to papers filed in the offices of the Secretary of the Commonwealth of Pennsylvania and the Prothonotary of Mercer County, Pennsylvania in favor of the defendants, Norman N. Moss and Mary M. Moss.

The Commonwealth Court of Pennsylvania decided in the case of In re Revocation of Liquor License No. R-2193, ___ Pa. Cmwlth. ___, 456 A.2d 709 (1983) that a liquor license is a privilege and not personal property against which the lien of a secured transaction can attach under the provisions of sections of the Pennsylvania Uniform Commercial Code embodied in 13 Pa.C.S.A. §§ 1201, 9101-9507.

The claim that the license is subject to the exemption of $750.00 under 11 U.S.C. § 522(d)(6) for "implements, professional books or tools of the trade of the debtor" is disallowed on the ground that a license confers a right or privilege to transact a type of business, and is not a professional book or a tool or implement by means of which acts involved in the conduct of a trade or business are performed. Such right or privilege is, however, "property" in our opinion included in the exemption "in any property" provided in 11 U.S.C. § 522(d)(5) not to exceed the value of $400.00 plus any unused amount of the homestead exemption, subject, however, to the power of the Commonwealth to regulate, to approve or disapprove transfer of, and for reasons specified in applicable legislation and regulations, to revoke such license.

It is our opinion that the rights of the debtors in the subject liquor license are subject to their claim for exemption under 11 U.S.C. 522(d)(5) subject to the abovementioned powers of regulation of the Commonwealth of Pennsylvania free and clear of any security interest or levy thereunder in behalf of the defendants Moss, and such purported security interest and levy thereunder of said defendants are declared null, void and of no effect.