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In Argonne Tavern, Inc., 25 Pa. Commw. at 288, 361 A.2d at 481, we remanded the matter to the lower court upon that court's failure to make findings of fact and conclusions of law in accordance with Section 471 of the Liquor Code and settled case law.
Summary of this case from Pa. L.C.B. v. Flowers Davis Ent., Inc.Opinion
Argued May 6, 1976
June 24, 1976.
Liquor — Suspension of liquor license — Liquor Code, Act 1951, April 12, P.L. 90 — Necessity for findings of fact — Scope of appellate review — Error of law — Abuse of discretion — Remand — Adulterating liquor — Presumption of knowledge.
1. The Liquor Code, Act 1951, April 12, P.L. 90, requires that a court of common pleas make its own findings of fact and conclusions of law in an appeal from a license suspension order of the Pennsylvania Liquor Control Board. [288]
2. In an appeal from the order of a lower court in a liquor license suspension case, the Commonwealth Court of Pennsylvania must affirm the decision unless the court below committed an error of law or abuse of discretion, but such review is not possible and the case must be remanded where the lower court failed to make findings of fact or conclusions of law. [288]
3. In a liquor license suspension case where the licensee is charged with adulterating or refilling liquor bottles in violation of the Liquor Code, Act 1951, April 12, P.L. 90, proof of possession by the licensee of adulterated liquor gives rise to a presumption of knowledge of the illegal act by the licensee and imposes liability therefor unless rebutted. [288]
Judge KRAMER did not participate in this decision.
Argued May 6, 1976, before President Judge BOWMAN and Judges MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 1116 C.D. 1975, from the Order of the Court of Common Pleas of Westmoreland County in case of Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Argonne Tavern, Inc., No. 1124 of 1975.
Liquor license suspended by Pennsylvania Liquor Control Board. Licensee appealed to the Court of Common Pleas of Westmoreland County. Appeal sustained. RIAL, J. Board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellant.
Charles F. Wade, with him Thomas R. Ceraso, for appellee.
Chemical analysis of five open bottles of liquor seized by officers of the Pennsylvania Liquor Control Board (Board) on July 10, 1974 during an open inspection of the stock of the Argonne Tavern (Argonne) revealed variations in content beyond the normal limits of the brands whose labels appeared on the bottles. As a result, the Board found Argonne in violation of Section 491(10) of the Liquor Code which makes it unlawful "[f] or any licensee or any employe or agent of a licensee or of the board, to fortify, adulterate or contaminate any liquor, except as permitted by the regulations of the board, or to refill wholly or in part, with any liquid or substance whatsoever, any liquor bottle or other liquor container" and suspended its liquor license for 30 days. Argonne appealed to the Court of Common Pleas of Westmoreland County, which reversed the suspension. The Board now asks us to reinstate the 30-day suspension of Argonne's license.
Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-491 (10).
Pursuant to Section 471 of the Liquor Code, 47 P. S. § 4-471, in an appeal from the Board the lower court is to make its own findings of fact and conclusions of law. Noonday Club of Delaware County, Inc. Liquor License Case, 433 Pa. 458, 252 A.2d 568 (1968); Pennsylvania Liquor Control Board v. Latrobe Armed Services Association, 16 Pa. Commw. 199, 329 A.2d 549 (1974). On appeal to this Court from such a de novo hearing, we must affirm unless the court below committed an error of law or an abuse of discretion. Pennsylvania Liquor Control Board v. Wisnoff Company, 13 Pa. Commw. 371, 318 A.2d 774 (1974). In the case at bar, the lower court made no findings of fact or conclusions of law. We must therefore remand.
The basis of the action by the court below was that the Board did not bear its burden of proving that the bottles were refilled by the licensee, its employees, or agents. In so concluding, the lower court ignored the presumption that the mere possession of adulterated liquor is prima facie evidence of knowledge of the illegal act and will impose liability unless rebutted. Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959); 400 Lounge, Incorporated Liquor License Case, 204 Pa. Super. 207, 203 A.2d 362 (1964).
Because it did not discuss the existence of the presumption at all, the court made no conclusions as to whether the presumption was successfully rebutted. Argonne, of course, claims that it has rebutted the presumption, while the Board claims it has not. We find it impossible, in the absence of findings of fact and conclusions of law on this crucial issue, to exercise our judicial review. We therefore reverse and remand to the Court of Common Pleas of Westmoreland County for further proceedings consistent with this opinion.
Judge KRAMER did not participate in the decision in this case.