Opinion
June 13, 1968.
September 12, 1968.
Liquor Law — Licenses — Transfer — Appeal from action of board — Timeliness — Act of April 12, 1951, P.L. 90, § 464.
1. Under the Act of April 12, 1951, P.L. 90, § 464, an appeal by an aggrieved party from the grant or refusal by the board of the issuance or transfer of a liquor license must be taken within the time prescribed.
2. In this case, in which it appeared that an appeal nunc pro tunc by an unincorporated group from the action of the board in approving a second application of a restaurant liquor license for transfer of the license was taken beyond the statutory period, it was Held that the order of the court below quashing the appeal should be affirmed.
WRIGHT, P.J., MONTGOMERY and SPAULDING, JJ., dissented.
Argued June 13, 1968.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Appeal, No. 531, Oct. T., 1968, from order of Court of Quarter Sessions of Philadelphia County, Dec. T., 1967, No. 1780, in re appeal of Citizens for Improvement of N. 52nd Street Area from grant of transfer of liquor license. Order affirmed.
Petition for appeal nunc pro tunc from order of Pennsylvania Liquor Control Board granting application for transfer of liquor license. Before GUERIN, P.J.
Motion to quash appeal granted and appeal dismissed. Protestants appealed.
Ragan A. Henry, with him James M. Orman, Myron A. Hyman, and Goodis, Greenfield, Narin Mann, for appellants.
Samuel C. Nissenbaum, for appellee.
This is an appeal from an order of the Court of Quarter Sessions of Philadelphia County quashing an appeal nunc pro tunc by an unincorporated group known as "Citizens for Improvement of N. 52nd Street", the appellants, from an order of the Pennsylvania Liquor Control Board granting the application of a place-to-place transfer of a restaurant liquor license of William J. Riley and Laura E. Riley, trading as Riley's Grille, the appellees, from 4406 Fairmount Avenue, Philadelphia, Pennsylvania, to 501 N. 52nd Street, Philadelphia, Pennsylvania.
William J. Riley and Laura E. Riley, both in their seventies, for many years operated their restaurant at Fairmount Avenue. Redevelopment took their property and they then applied for a place-to-place transfer to the 52nd Street address.
An unincorporated group known as "Citizens for the Improvement of the North 52nd Street", opposed the application for transfer. The City of Philadelphia also interposed an objection. The Pennsylvania Liquor Control Board, after hearing, denied the application on February 17, 1966.
A new application for the transfer was made by the parties on July 6, 1967 and a hearing was conducted on October 3, 1967 at which hearing the appellants again protested the grant of the transfer. At an executive session of the Board on November 9, 1967 the Board concluded that the license transfer should be approved. The license for the new location was transferred and issued by the Board on December 6, 1967. The record shows that no notice was given to the appellants of the action by the Board. There is nothing in the law that requires such notice. However, the appellants did learn through representatives of the action of the Board on December 15th and December 18th, 1967, respectively. The appeal to the court below was filed Dec. 29, 1967.
The Liquor Code does not limit the number of applications which may be submitted. Haase Liquor License Case, 184 Pa. Super. 356, 134 A.2d 682 (1957). The appeal section of the Act of April 12, 1951, P.L. 90, Art. IV, § 464, 47 P. S. § 4-464, provides in part: ". . . Any applicant . . . may take an appeal limited to the question of such grievance, within twenty days from date of refusal or grant,. . . .".
The court below found: "I find as a fact that the appeal in this case which is now before me was taken beyond the statutory period allowed for the taking of an appeal from the action of the Liquor Control Board". In Yeager v. United Nat. Gas Co., 197 Pa. Super. 25, 176 A.2d 455 (1961), this Court said, at page 28: "Where an Act of Assembly fixes the time within which an appeal may be taken, courts have no power to extend it, or to allow an appeal nunc pro tunc, except when there is a showing of fraud or its equivalent. Something more than mere hardship is necessary to justify an extension of time. . . . The time of appeal cannot be enlarged in the absence of fraud, deception, coercion or duress." See also: Morgan v. Pitts. Bus. Prop., Inc., 198 Pa. Super. 254, 181 A.2d 881 (1962); Mapp v. Philadelphia, 212 Pa. Super. 319, 243 A.2d 479 (1968); Jordan v. Eisele, 273 Pa. 95, 116 A. 675 (1922); Department of Highways v. Pennsylvania Public Utilities Commission, 189 Pa. Super. 111, 149 A.2d 552 (1959).
The order is affirmed.
WRIGHT, P.J., MONTGOMERY and SPAULDING, JJ., dissent.