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HomeMy WebLinkAbout93-0358 CivilPENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT, Appellee v. CAN, INC., Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 358 CIVIL 1993 IN RE: STANDARD OF REVIEW BEFORE OLER J. ORDER OF COURT AND NOW, this ZMl day of March, 1993, followin g apre-hearing conference in which the issue of the appropriate standard of review and Court was raised, upon careful consideration of record to be utilized by this for the reasons stated in the accompanyingthe parties' briefs in the matter, and opinion, it is determined that the Co's decision in this case will be based upon an urt deterexamination mine whether there is substantial evidencen of the record below to to support the decision under review, whether there was an error of law committed, and whether there was an abuse of discretion. Appellant shall cause a certified record of theroc p eedings below to be filed in this Court. Counsel are requested to notify the Court when the record h as an argument date and briefing schedule can be es been filed so that tabhshed. BY THE COURT, ThomasJ. M. Ballaron, Esq. Attorney for Appellee Stephen J. Dzuranin, Esq. Attorney for Appellant :rc PENNSYLVANIA STATE POLICE, IN THE COURT OF COMMON PLEAS OF BUREAU OF LIQUOR CONTROL CUMBERLAND COUNTY, PENNSYLVANIA ENFORCEMENT, Appellee V. CIVIL ACTION - LAW CAN, INC., Appellant NO. 358 CIVIL 1993 IN RE: STANDARD OF REVIEW BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. This case is presently before the Court for a determination of the appropriate standard of review and record on an appeal from a decision of the Pennsylvania Liquor Control Board (PLCB) sustaining a license suspension and an imposition of a fine. For the reasons set forth in this opinion, the Court's decision in this case will be based upon an examination of the record below to determine whether there is substantial evidence to support the decision under review, whether there was an error of law committed, and whether there was an abuse of discretion. Can, Inc. (Appellant), a registered Pennsylvania Corporation, operates a restaurant and bar in Cumberland County, Pennsylvania, and holds a "restaurant liquor and amusement permit" issued by the PLCB.1 On February 13, 1992, the Pennsylvania State Police, Bureau of Liquor Control Enforcement (Appellee), issued a citation upon Appellant to show cause why its license should not be suspended or revoked and a fine imposed.' 1 Appellant's Application for Appeal, paragraph 1. 2 Appellant's Application For Appeal, paragraph 4. No. 358 Civil 1993 On May 20, 1992, a panel of Administrative Law Judges (ALJ) conducted a hearing with respect to this citations Following the hearing, the ALJ entered an Adjudication and Order imposing a fine of $1000 upon Appellant and suspending its liquor license for a period of 120 days.' From this Adjudication and Order, Appellant filed a timely appeal with the PLCB.' On the appeal, the PLCB affirmed the decision of the ALJ, dismissing Appellant's appeal and ordering Appellant to pay the $1,000 fine and suspending Appellant's liquor license for 120 days.' Appellant has filed a timely appeal from the decision of the PLCB to this Court. On February 11, 1993, a pre -hearing conference was held before the undersigned judge. At the conference, the issue of the standard of review to be employed, and the record to be utilized, by this Court was considered. Appellant contends the record should be a de novo one made in this Court, although it agrees that in the present case the evidence at a de novo hearing would be the same as that presented below; the variable in this regard would involve the credibility of the witnesses.' Appellee, on 3 Appellant's Application For Appeal, paragraph 5. ' Appellant's Application For Appeal, paragraph 7, Exhibit A. s Appellant's Application For Appeal, paragraph 8. 6 Appellant's Application For Appeal, paragraph 9, Exhibit B. 7 See Pretrial Conference Order, at 1 (1993). No. 358 Civil 1993 the other hand, contends that this Court should use the record made below. Both parties have submitted briefs on the matter. The trial court's standard of review in an appeal from a PLCB decision has recently been addressed by the Commonwealth Court in the case of In Re: Appeal of Iggi, Inc., 140 Pa. Commw. 168, 592 A.2d 122 (1991). In Iggi, the Commonwealth Court examined the language of Section 471 of the Liquor Code' and concluded that the court of common pleas has no authority to apply a de novo standard when adjudicating an appeal from a PLCB decision. The Court reasoned that, since Section 471 mandates that the PLCB review the record produced by the ALJ to determine whether there is substantial evidence to support the ALJ decision, "[i]t would be inconsistent to apply a de novo standard to a review in the common pleas court, and such a standard would unquestionably render the intermediate review by the [PLCB] meaningless." Id. at 176, 542 A.2d at 127. Consequently, the scope of review by the court of common pleas is "limited to determining whether the ... findings [below] are supported by substantial evidence, whether there was an error of law committed, or whether [there was an abuse of] discretion." Id. at 176, 542 A.2d at 126. In light of the language of Iggi, as well as the fact that in this case no additional evidence would be presented at a new hearing, the Court does not believe that a de novo procedure would be appropriate herein. Rather, our scope of review will be ' Act of June 29, 1987, P.L. 32, §70, 47 P.S. §4-471 (1992 Supp.). 3 No. 358 Civil 1993 limited to an examination of the existing record to determine whether the findings below are supported by substantial evidence, whether there was an error of law committed, and whether there was an abuse of discretion. Based upon the foregoing, it is ordered and directed as follows: ORDER OF COURT AND NOW, this 2Nlday of March, 1993, following a pre -hearing conference in which the issue of the appropriate standard of review and record to be utilized by this Court was raised, upon careful consideration of the parties' briefs in the matter, and for the reasons stated in the accompanying opinion, it is determined that the Court's decision in this case will be based upon an examination of the record below to determine whether there is substantial evidence to support the decision under review, whether there was an error of law committed, and whether there was an abuse of discretion. Appellant shall cause a certified record of the proceedings below to be filed in this Court. Counsel are requested to notify the Court when the record has been filed so that an argument date and briefing schedule can be established. BY THE COURT, s/ J. Wesley Oler, Jr. J. 4 No. 358 Civil 1993 Thomas M. Ballaron, Esq. Attorney for Appellee Stephen J. Dzuranin, Esq. Attorney for Appellant : rc 5