Opinion
November 14, 1949.
January 12, 1950.
Liquor law — Licenses — Transfer — Appeals — Objector — Interest — Industrial establishment — Property — Permissive playground — Restrictions — Waiver — Abandonment.
1. A remonstrant does not have the right to appeal from an order of the court of quarter sessions directing the transfer of a liquor license.
2. The interest of an objector in protecting the value of his property within the vicinity of a place for which a liquor license is sought is too remote to support a right to an appeal from the transfer of the license.
3. In a liquor license case, it was Held that (1) an objector, the owner of an industrial establishment across the street from the place for which application was made to transfer a liquor license, did not have the right to appeal from an order of the quarter sessions directing transfer of the license from one person to another and also to the new location; that (2) a playground, located within 300 feet of the place proposed to be licensed, owned by the company, which the public permissively used, was not a public playground and by reason of its ownership the company did not thereby have an interest entitling it to appeal; and (3) there had been a waiver and abandonment of a restriction in a plan of lots, including the premises in question, prohibiting the sale of intoxicating liquor therein.
4. Azarewicz Liquor License Case, 163 Pa. Super. 459, distinguished.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and FINE, JJ.
Appeal, No. 92, April T., 1949, from judgment of Court of Common Pleas of Beaver County, Dec. T., 1948, No. 20, in the Matter of Appeal of Dominic R. Giammaria et ux. from refusal of Pennsylvania Liquor Control. Board to transfer restaurant liquor license No. R-3552 of Salvatore Fittante et ux. to Dominic R. Giammaria et ux., etc. Appeal quashed.
Appeal by applicants from decision of Pennsylvania Liquor Control Board refusing the transfer of restaurant liquor license.
Appeal sustained and order entered directing transfer of license as applied for, opinion by SOHN, J. Protestant appealed.
Ralph E. Smith, with him Chauncey Pruger, Myron E. Rowley, Reed, Smith, Shaw McClay and Rowley Smith, for appellant.
Earl J. Schermerhorn, with him Ralph K. Smith and Smith Schermerhorn, for appellees.
Argued November 14, 1949.
Dominic R. Giammaria and his wife entered into an agreement to purchase the business and liquor license of Salvatore Fittante in Ambridge Borough, subject to the approval of the Pennsylvania Liquor Control Board to transfer the Fittante license to Giammaria (person to person), and also to transfer it to a different location (place to place). The Liquor Control Board refused the transfer and on appeal by the applicant the court below heard the case de novo and granted both transfers. At the hearing before the board objections were filed by the American Bridge Company, which owned a large industrial establishment directly across the street from the place to which the license was to be transferred. It also appeared on the appeal de novo before the court of quarter sessions. Following the order of the quarter sessions directing said transfers to issue, the Pennsylvania Liquor Control Board took no further action, but the American Bridge Company took an appeal to this Court.
At the outset is the question whether the American Bridge Company has any standing to appeal from the order complained of, i.e. whether it is a party aggrieved. In Seitz Liquor License Case, 157 Pa. Super. 553, 556, 43 A.2d 547, we said: "To say that objecting citizens may appear and be heard is, however, far different from conceding that by so participating in the proceedings they become parties litigant entitled to an appeal on the merits or even a review on a writ of certiorari, either under the broad or restricted scope of that writ. The pointed omission of any reference to remonstrants in § 404 of the Act, and the careful language restricting the right to appeal to applicants whose prayer for relief has been denied by the board demonstrate unequivocally that the legislature did not intend to confer upon objectors the status of parties, and that they are no more entitled to an appeal than are witnesses, disgruntled by the outcome of an ordinary action at law." Citing Lansdowne Board of Adjustment's Appeal, 313 Pa. 523, 525, 170 A. 867, we further said (p. 556): "Any interest which appellant had in the outcome of the proceedings before the board was not direct and immediate, but was a collateral concern generated by his desire to protect the value of his property, which might be indirectly affected by the action of the board. This type of interest, however, is too remote from the issues involved in the transfer proceedings to support a right to an appeal." In Pennsylvania Commercial Drivers Conference et al. v. Pennsylvania Milk Control Commission et al., 360 Pa. 477, 483, 62 A.2d 9, Mr. Justice LINN made a careful review of the restriction of the right of appeal to persons aggrieved, and pointed out that a person could be adversely affected and still not be a person aggrieved. Among the citations was the Seitz case, supra.
It is argued that the American Bridge Company is a party aggrieved because it is the owner of what is stated to be a public playground, located within 300 feet of the place proposed to be licensed. This argument is based upon the fact that in the Azarewicz Liquor License Case, 163 Pa. Super. 459, 62 A.2d 78, we upheld the right of a church to appeal when the establishment sought to be licensed was within 300 feet thereof, because the legislative intent was clear that a church had a direct interest to protect and to be protected, and was (statutorily) given a status above and different from that of a remonstrant. If the present appeal were taken by the proprietor or governing body of a public playground a different situation might have been presented. But the court below found as a fact, unquestionably correct, that the playground in question was not a public one. It was neither owned nor operated by any public authority, nor had there been any dedication thereof to any municipal corporation or to the public. It was merely a playground which members of the public, particularly children, might permissively use. Since the right of user by the public was by sufferance only, and since the American Bridge Company retained the right, as it undoubtedly did, to exclude any member of the public therefrom, or to withdraw and revoke all permission to use the same, — this playground was not a public one.
The Liquor Control Board made no findings on this, nor did it predicate its action on this feature.
The question is also raised that a plan of lots which included the premises sought to be licensed prohibited the sale of intoxicating liquor therein. But the court below found from ample evidence that there had been a waiver and abandonment of the restriction, and that at the time of hearing 42 licenses were in effect within the alleged prohibited area. It may also be added that the American Bridge Company was not a privy to the plan of lots, nor a holder of land thereunder.
Appeal quashed.