Opinion
October 16, 1947.
November 12, 1947.
Liquor law — Licenses — Transfer — Appeals — Scope — Right of interested parties to be heard — Court of quarter sessions — Opinion of majority as ruling of court — Liquor Control Act.
1. Since section 408 of the Liquor Control Act of November 29, 1933, P.L. 15, as reëacted and amended, provides that the action of the court of quarter sessions on appeal from an order of the Board refusing the transfer of a license shall be final, the appellate court review is in the nature of a narrow certiorari and is limited to the question of jurisdiction and regularity of the proceedings.
2. In such case, the appellate court does not review the evidence in order to determine whether the court below or the Board was guilty of abuse of discretion.
3. Interested persons have a right to appear and to be heard in the court of quarter sessions on appeal from an order of the Board refusing the transfer of a license.
4. Where there are several judges constituting the court of quarter sessions, the opinion of the majority is the ruling of the court.
Before RHODES, P.J., HIRT, DITHRICH, ROSS, ARNOLD and FINE, JJ. (RENO, J., absent.)
Appeal, No. 48, April T., 1948, from order of Q.S., Fayette Co., Sept. Sessions, 1946, No. 4, in re Appeal of Independent Order of Sons of Italy, Lodgia Unita No. 433, from refusal of Pennsylvania Liquor Control Board to grant application for transfer of club liquor license. Appeal dismissed.
Appeal by applicant from refusal of Pennsylvania Liquor Control Board to transfer club liquor license.
Appeal sustained and order entered directing transfer, opinion by COTTOM, J.; exceptions to order sustained and decision of Board affirmed, before CARR, P.J., MORROW and COTTOM, JJ., opinion by CARR, P.J., concurred in by MORROW, J. Applicant appealed.
Anthony Cavalcante, for appellant.
Horace A. Segalbaum, Deputy Attorney General, with him Andrew G. Uncapher, Special Deputy Attorney General, and T. McKeen Chidsey, Attorney General, for appellee.
Thomas H. Hudson, Jr., with him Hudson Hudson, for intervenor.
Argued October 16, 1947.
Appellant, an incorporated society, applied to the Liquor Control Board for a transfer of its club liquor license to its new premises at Gallatin and Lincoln Streets, in the City of Uniontown, Fayette County, Pennsylvania. The board refused the transfer on the ground the premises were located within three hundred feet of St. Paul's Evangelical Lutheran Church. See section 403 of the Pennsylvania Liquor Control Act of November 29, 1933, P.L. 15, as reëacted and amended, 47 P. S. § 744-403. On appeal to the Court of Quarter Sessions of Fayette County, the matter was heard in the first instance by one of the judges of that court, who reversed the board on the ground that the premises in question were in fact over three hundred feet from the church, hence there was no basis for any exercise of discretion by the board and it had no authority to refuse the transfer.
Exceptions to the order were filed by representatives of the church. The court in banc found the distance from the church to appellant's building to be two hundred and four feet, and sustained the refusal of the board to transfer the license.
On appeal to this Court, appellant has presented a number of contentions; they do not reveal any lack of jurisdiction on the part of the court of quarter sessions or any irregularity in the proceedings.
We have no alternative but to dismiss the appeal. The applicable principles are well settled. Section 408 of the Pennsylvania Liquor Control Act of November 29, 1933, P.L. 15, as reëacted and amended, 47 P. S. § 744-408, provides that the action of the court of quarter sessions on appeals from the order of the board refusing the transfer of a license shall be final. We have held repeatedly that on appeals involving refusal by the board to grant, renew, or transfer a license our review is in the nature of a narrow certiorari and is limited to the question of jurisdiction and regularity of the proceedings. McGettigan's Liquor License Case, 131 Pa. Super. 280, 285, 200 A. 213; Spankard's Liquor License Case, 138 Pa. Super. 251, 256, 10 A.2d 899; Kimmell Liquor License Case, 157 Pa. Super. 59, 62, 41 A.2d 436; Blair Liquor License Case, 158 Pa. Super. 365, 45 A.2d 421; O'Donnell v. Pennsylvania Liquor Control Board, 158 Pa. Super. 533, 534, 45 A.2d 369.
We do not review the evidence in order to determine whether the court below or the board was guilty of abuse of discretion. It is clear that the court of quarter sessions had jurisdiction, it being expressly conferred by statute, and that the proceedings were regular. Kimmell Liquor License Case, supra, 157 Pa. Super. 59, 62, 41 A.2d 436; Heffernan's Appeal, 121 Pa. Super. 544, 547, 184 A. 286; Masefield v. Masefield, 159 Pa. Super. 6, 8, 46 A.2d 329.
We may add that where, as here, there are several judges constituting the court of quarter sessions, the opinion of the majority is the ruling of the court. Myers v. Consumers' Coal Co., 212 Pa. 193, 200, 61 A. 825; In re McCormick's Contested Election, 281 Pa. 281, 285, 126 A. 568. Cf. Thomas et al. v. Waters et al., 342 Pa. 125, 18 A.2d 872. The representatives of the church had a right to appear and to be heard in the court below. The action of that court gave protestants no higher status than that to which they were entitled. Weinstein and Murman's Liquor License Case, 145 Pa. Super. 476, 480, 21 A.2d 431; Seitz Liquor License Case, 157 Pa. Super. 553, 555, 43 A.2d 547. Appellant's assignments of error are without merit.
Appeal is dismissed.