Donald M. Moser, Bala Cynwyd, for appellant. Erik S. Shmukler, Assistant Counsel, Philadelphia, for appellee.
Donald M. Moser, Bala Cynwyd, for appellant. Erik S. Shmukler, Assistant Counsel, Philadelphia, for appellee.
BEFORE: PELLEGRINI, President Judge, and BROBSON, Judge, and FRIEDMAN, Senior Judge.
OPINION BY Judge BROBSON.
In this appeal from an April 6, 2011 Order of the Court of Common Pleas of Philadelphia County (trial court), we must construe Section 471 of the Liquor Code, which sets forth administrative remedies for those aggrieved by the adjudication by administrative law judges of Liquor Code violation citations issued by the Pennsylvania State Police Bureau of Enforcement (Bureau). In this case, the trial court vacated for lack of jurisdiction an order of the Pennsylvania Liquor Control Board (Board), dated May 12, 2010, and validated suspension dates imposed by an administrativelaw judge on Appellant Kenrich Athletic Club (Licensee). We now affirm.
Act of April 12, 1951, P.L. 90, reenacted by the Act of June 29, 1987, P.L. 32, as amended,47 P.S. § 4–471.
Section 471 of the Liquor Code provides, in relevant part:
(a) Upon learning of any violation ... by any licensee within the scope of this article ... or upon any other sufficient cause shown, the enforcement bureau may, within one year from the date of such violation or cause appearing, cite such licensee to appear before an administrative law judge ... to show cause why such license should not be suspended or revoked or a fine imposed, or both....
(b) Hearing on such citations shall be held in the same manner as provided herein for hearings on applications for license. Upon such hearing, if satisfied that any such violation has occurred or for other sufficient cause, the administrative law judge shall immediately suspend or revoke the license, or impose a fine.... The administrative law judge shall notify the licensee by registered mail, addressed to the licensed premises, of such suspension, revocation or fine. Suspensions and revocations shall not go into effect until thirty days have elapsed from the date of the adjudication during which time the licensee may take an appeal as provided for in this act, except that revocations mandated in section 481(c) shall go into effect immediately.... In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the adjudication of the administrative law judge, there shall be a right to appeal to the board. The appeal shall be based solely on the record before the administrative law judge. The board shall only reverse the decision of the administrative law judge if the administrative law judge committed an error of law, abused its discretion or if its decision is not based on substantial evidence. In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the decision of the board, there shall be a right to appeal to the court of common pleas in the same manner as herein provided for appeals from refusals to grant licenses. Each of the appeals shall act as a supersedeas unless, upon sufficient cause shown, the reviewing authority shall determine otherwise; however, [under certain enumerated circumstances, the licensee's] appeal shall not act as a supersedeas unless the reviewing authority determines otherwise upon sufficient cause shown....
(Emphasis added.) Our task here is to construe and apply this language to a procedural history that involves multiple administrative appeals and remands.
The origin of this convoluted matter dates back to April 29, 2008, the date of the Bureau's Citation No. 08–0930 (Citation) directed to Licensee. Therein, the Bureau levied its charges against Licensee. The matter proceeded to a hearing before Administrative Law Judge Tania Wright (ALJ Wright) on December 17, 2008. ALJ Wright issued her adjudication on the merits of the Citation on February 17, 2009 (Adjudication), concluding that the Licensee did violate the law as charged in the Citation. The ALJ imposed a fine and a license suspension of fourteen (14) days. The ALJ, however, deferred setting the period of suspension for a later order. Licensee did not appeal the Adjudication to the Board.
Thereafter, on March 10, 2009, ALJ Wright issued a Supplemental Order, setting the period of suspension beginning on Monday, March 30, 2009, and ending on Monday, April 13, 2009 (First Suspension Order). Licensee did not appeal the First Suspension Order to the Board.
On April 1, 2009, at Licensee's request, ALJ Wright issued a Second Supplemental Order (Second Suspension Order). In that order, ALJ Wright noted that though Licensee had begun serving its suspension as of March 30, 2009, Licensee requested an accommodation, because it had a major event scheduled at its facility for April 4, 2009. ALJ Wright noted that by that date, Licensee will have served four (4) days of the fourteen (14) day suspension. The Second Suspension Order allowed Licensee to reopen on Friday morning, April 3, 2009, and imposed a ten (10) day suspension ( i.e., the balance of the original suspension), beginning on April 17, 2009 and ending on April 27, 2009.
On or about April 9, 2009, Licensee appealed the Second Suspension Order to the Board, triggering the automatic supersedeas provision in Section 471(b) of the Liquor Code. Licensee did not dispute the underlying violations. Its appeal focused solely on the ten (10) day suspension period set forth in the Second Suspension Order. Licensee claimed that the ALJ erred by not honoring an agreement to provide Licensee with forty-five (45) days advance notice of the suspension period. Licensee asked that the Board set the period of suspension to begin forty-five (45) days from the date he signed his appeal document (not the date of filing). If granted by the Board, the suspension would begin on May 23, 2009, and end on June 1, 2009. The Board affirmed the suspension dates on May 20, 2009 (First Board Decision). In so doing, the Board noted that Section 471(b) of the law provides that a suspension should not go into effect until thirty (30) days after the adjudication and order are mailed. The ALJ's Second Suspension Order, setting the ten (10) day suspension was issued on April 1, 2009, well-beyond thirty (30) days from the date of the Adjudication. Accordingly, the Board held that the ALJ did not err in the Second Suspension Order. Because of the automatic supersedeas, however, the Board remanded the matter to impose a new suspension period.
Dissatisfied with the Board's disposition, Licensee appealed to the trial court. Based on our review of the transcript of the January 13, 2010 proceeding before the trial court and the trial court's March 18, 2010 Order, the trial court denied Licensee's appeal of the First Board Decision and remanded the matter only to set new suspension dates for the unexpired period of the original suspension.
Section 471(b) of the Liquor Code provides that appeals under that section shall be decided by the trial court in the same manner as appeals from refusals to grant licenses:
When an appeal is taken from a Board decision, under Section 464 of the Liquor Code, the trial court hears the matter de novo and renders its own findings of fact and conclusions of law. The trial court must receive the record of the proceedings below, if offered, and may hear new evidence. The trial court has the authority to sustain, alter, change, modify or amend a decision of the Board, even if the court does not make findings of fact that are materially different from those found by the Board.
Goodfellas, Inc. v. Pa. Liquor Control Bd., 921 A.2d 559, 565 (Pa.Cmwlth.) (footnote and citations omitted), appeal denied,594 Pa. 700, 934 A.2d 1279 (2007).
It appears that the de novo hearing conducted on January 13, 2010, was quite brief. The trial court judge indicated that he had revealed Licensee's notice to plead and the pleadings in the matter, which Licensee had filed pro se, and determined that it lacked merit. The trial judge noted that Licensee failed to preserve any issues for appeal, and, therefore, he would remand the matter back to the ALJ for imposition of the suspension dates and for no other reasons.
ALJ Wright issued her Order Upon Remand from the Court of Common Pleas of Philadelphia County, with a mailing date of April 7, 2010 (Order on Remand). ALJ Wright ordered that the unexpired ten-day suspension period begin on April 30, 2010 and end on May 10, 2010. License appealed the Order on Remand to the Board, arguing that Section 471(b) of the Liquor Code required the ALJ to set the suspension to begin more than thirty (30) days in the future. In a May 12, 2010 decision (Second Board Decision), the Board accepted Licensee's interpretation of Section 471(b) of the Code and remanded the matter yet again for a new period of suspension. By order dated May 19, 2010 (but mailed May 24, 2010), ALJ Wright set new suspension dates in compliance with the Second Board Decision. Of note on that order, however, is ALJ Wright's reaction to the Board's interpretation of Section 471(b):
ALJ Wright set the start date as July 2, 2010— i.e., more than thirty (30) days beyond the mail date of her order on remand from the Board.
The Board's acceptance of this appeal and the decision to apply the thirty day rule governing implementation of suspension decisions following Adjudications by the Office of Administrative Law Judge as set forth in 47 P.S. Section 471(b), to an Order of Suspension issued by this office in response to a decision and directive in a matter before the Court of Common Pleas, and not from an adjudication of the Office of Administrative Law Judge, is legally perplexing.
In the meantime, however, the Bureau disagreed with the Board's most recent interpretation of Section 471(b) of the Liquor Code and appealed the Second Board Decision to the trial court. Under Section 471(b) of the Liquor Code, this appeal by the Bureau triggered an automatic supersedeas.
In its appeal to the trial court, the Bureau argued that the Board lacked jurisdiction to issue the Second Board Decision in light of the trial court's March 18, 2010, order. The Bureau contended that ALJ Wright's Order on Remand was not an adjudication subject to Board review under Section 471(b) of the Liquor Code; rather, it was ministerial act, which the trial court directed in its March 18, 2010 Order. To the extent Licensee had any issue with the trial court's decision, it should have appealed that decision to this Court. But because the ALJ was merely following the directive of the trial court to set new suspension dates, which was an act the trial court could have done itself under its standard and scope of review, the Board was without jurisdiction to hear an appeal from ALJ Wright's Order on Remand.
Licensee also appealed the ALJ's May 24, 2010 order to the Board. The Board issued an opinion and order, dated September 22, 2010, concluding that the Bureau's appeal to the trial court vested jurisdiction with the trial court and had the effect of vacating the ALJ's May 24, 2010 order imposing suspension dates.
The trial court held a hearing on the appeal on February 22, 2011, and April 6, 2011. By order filed April 8, 2011, the trial court vacated the Board's order dated May 12, 2010, and validated the suspension dates set forth in ALJ Wright's Order on Remand. The trial court also ordered that it would set the dates of the suspension upon application by the parties. Licensee appealed the trial court's order to this Court before the trial court set any new suspension dates. Pursuant to Pennsylvania Rule of Appellate Procedure 1925, the trial court directed Licensee to file a statement of errors. In response to Licensee's statement of errors complained of on appeal, the trial court issued an opinion, dated June 16, 2011.
According to the trial court's April 8th Order, by this time Licensee had served an additional two (2) days of its original fourteen (14) day suspension. Thus, eight (8) days remained on Licensee's original suspension.
In its opinion, the trial court opined that the original suspension dates were validated and that Licensee failed to follow the proper appellate procedures after a final order in this adjudication was made by the trial court on March 18, 2010. The trial court opined that Licensee should have appealed the trial court's March 18, 2010 order to the Commonwealth Court within thirty (30) days, which it did not do. The trial court expressed the view that the provisions of Section 471 are “somewhat unclear,” but ultimately concluded that the trial court's March 18, 2010 order was the final order, which resolved any substantive issues in the case. In that order, the trial court remanded the matter to the ALJ solely for the setting liquor license suspension dates. Moreover, the trial court determined that Licensee waived its appellate rights by not appealing the trial court's March 18, 2010 order to the Commonwealth Court. Licensee then filed a notice of appeal.
On appeal to this Court, Licensee essentially argues that the trial court erred in concluding that Section 471(b) of the Liquor Code does not require an ALJ to provide a thirty-day notice each time an ALJ sets suspension dates. Licensee also argues that the trial court erred in determining that its order dated March 18, 2010, affirming the suspension dates and remanding the matter to the ALJ to impose new suspension dates, was the adjudication and final order for purposes of appeal under Section 471(b) of the Liquor Code. To the contrary, Licensee contends that the ALJ's Order on Remand (from the trial court), setting the new suspension dates, is the “suspension order” for purposes of Section 471(b) of the Liquor Code. The Bureau takes the position that the trial court's order, dated March 18, 2010, was the only adjudicative act in the matter.
This Court's standard of review in a Liquor Code enforcement appeal is limited to determining whether the trial court committed an error of law or an abuse of discretion. Pa. State Police, Bureau of Liquor Control Enforcement v. Wilner, 687 A.2d 1216 (Pa.Cmwlth.1997).
When interpreting a statute, this Court is guided by the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501–1991, which provides that “the object of all interpretation and construction of all statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). “The clearest indication of legislative intent is generally the plain language of a statute.” Walker v. Eleby, 577 Pa. 104, 123, 842 A.2d 389, 400 (2004). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Only “[w]hen the words of the statute are not explicit” may this Court resort to statutory construction. 1 Pa.C.S. § 1921(c). “A statute is ambiguous or unclear if its language is subject to two or more reasonable interpretations.” Bethenergy Mines, Inc. v. Dep't of Envtl. Prot., 676 A.2d 711, 715 (Pa.Cmwlth.), appeal denied,546 Pa. 668, 685 A.2d 547 (1996). Moreover, “[e]very statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a). It is presumed “[t]hat the General Assembly intends the entire statute to be effective and certain.” 1 Pa.C.S. § 1922(2). Thus, no provision of a statute shall be “reduced to mere surplusage.” Walker, 577 Pa. at 123, 842 A.2d at 400. Finally, it is presumed “[t]hat the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S. § 1922(1).
The first question before the Court, in essence, is when must there be a thirty (30) day waiting period before a period of suspension or revocation can become effective under Section 471(b) of the Code. On this question, the language of the provision is sufficiently clear to determine the General Assembly's intent. The language at issue in Section 471(b) provides: “Suspensions and revocations shall not go into effect until thirty days have elapsed from the date of the adjudication during which time the licensee may take an appeal as provided for in this act.” (Emphasis added.) This sentence refers to earlier language in that section, setting forth the process for hearing and disposing of Bureau citations. After a hearing, the ALJ is directed to notify the licensee of the ALJ's decision. The “adjudication,” then, is a reference to the decision of the ALJ, finding that violations had occurred and imposing a penalty of license revocation or suspension. In this case, that adjudication was ALJ Wright's Adjudication of February 17, 2009. The period within which a licensee may take an appeal from such an adjudication to the Board is thirty (30) days. 40 Pa.Code § 17.21(b)(2). Thus, the intent of the General Assembly was to give a licensee time after an adjudication from an ALJ imposing a period of suspension or revocation, to continue to operate while it considers whether to appeal that adjudication.
This interpretation comports with the Board's view as set forth in the First Board Decision, where the Board rejected Licensee's claim that ALJ Wright's Second Suspension Order failed to provide the thirty (30) day waiting period required by Section 471(b) of the Liquor Code. As noted above, in affirming ALJ Wright, the Board noted that that thirty (30) day waiting period started to run from the date of the Adjudication.
Licensee would have this Court conclude that every time an ALJ issues an order setting the start and end date for a period of license suspension, the Licensee is entitled to a thirty-day notice. This is not what the statute provides and thus not what the General Assembly intended. As set forth above, the purpose of the thirty (30) day waiting period is to allow the Licensee to continue to operate during the period of time following the ALJ adjudication in which the licensee could appeal the adjudication to the Board. If the licensee does appeal, Section 471(b) provides for an automatic supersedeas—effectively continuing the waiting period pending disposition of the appeal. If the licensee does not appeal the adjudication, the period of suspension may go into effect immediately upon expiration of that thirty-day window.
Here, Licensee did not appeal the ALJ's Adjudication. Accordingly, licensee waived any right to challenge the ALJ's decision to impose a license suspension for a period of fourteen (14) days. Other than the thirty (30) day waiting period, there is no statute or regulation that governs or restricts the ALJ's authority to set the actual suspension dates. Likewise, there is no other statute or regulation that grants a licensee a right or claim to suspension dates of the licensee's convenience. The ALJ, therefore, complied with the Liquor Code and acted well within her authority when she set the actual suspension periods in her First Suspension Order, Second Suspension Order, and Order on Remand.
The next question is whether the trial court erred in vacating the Second Board Decision for lack of jurisdiction. With respect to appeals to the Board, Section 471(b) of the Liquor Code provides: “In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the adjudication of the administrative law judge, there shall be a right to appeal to the board.” (Emphasis added.) We agree with the trial court that ALJ Wright's Order on Remand (from the trial court's March 18, 2010 order) was not “an adjudication of the administrative law judge” and, therefore, was not appealable to the Board.
In the context of administrative practice and procedure, “adjudication” is defined as follows:
Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made. The term does not include any order based upon a proceeding before a court or which involves the seizure or forfeiture of property, paroles, pardons or releases from mental institutions.
2 Pa.C.S. § 101 (emphasis added). As noted above, ALJ Wright's Order on Remand only set new dates of suspension to effect the unexpired term of the fourteen (14) day suspension set forth in the unappealed Adjudication. On appeal to this Court, Licensee fails to identify any personal or property right, privilege, immunity, duty, liability, or obligation affected by the Order on Remand. As we noted above, Licensee unquestionably had the right to appeal the Adjudication to the Board and challenge the ALJ's suspension decision. But it did not. Once that thirty-day appeal period expired, the ALJ was free to set the dates of suspension in accordance with the penalty set forth in the unappealed Adjudication, and Licensee had no right to particular dates of its choosing. The subsequent ministerial act by an ALJ of implementing/enforcing an unappealed adjudication is not also an adjudication appealable to the Board. In this case, the Order on Remand was such a ministerial act by the ALJ, performed at the direction of the trial court, and thus based on a proceeding before the trial court.
A “ministerial act” is one that “is done under the authority of a superior; opposed to judicial. That which involves obedience to instructions, but demands no special discretion, judgment, or skill.” Black's Law Dictionary 996 (6th ed.1990) (emphasis in original).
Because the Order on Remand was not an adjudication, the Licensee could not appeal it to the Board under Section 471(b) of the Liquor Code. We, therefore, affirm the trial court and remand this matter to the trial court with direction that the trial court set dates of suspension for the unexpired term of the fourteen-day suspension period set forth in the Adjudication.
Based on our disposition of the issues above, we need not address Licensee's challenge to the trial court's view that Licensee should have appealed the trial court's March 18, 2012 order to this Court.
AND NOW, this 19th day of July, 2012, the order of the Court of Common Pleas of Philadelphia County (trial court) is hereby AFFIRMED. This matter is REMANDED to the trial court to set new dates of suspension, consistent with this Opinion.
Jurisdiction is relinquished.