Commonwealth Court of Pennsylvania, 1983

1316, Inc. v. Commonwealth, Pennsylvania Liquor Control Board

Commonwealth Court of Pennsylvania · Decided March 14, 1983 · Crumlish, Maophail, Rogers

72 Pa. Commw. 566; 457 A.2d 181; 1983 Pa. Commw. LEXIS 1425

Opinion of the Court

Opinion by

President Judge Crumlish, Jr.,

1316, Inc., appeals a Philadelphia County Common Pleas Court order which affirmed the Pennsylvania Liquor Control Board’s suspension of its liquor license. We affirm.

The Board found that 1316, Inc. had violated Section 491 of the Liquor Code1 by refilling liquor bottles, and ordered a twenty-one day suspension of its restaurant liquor license. 1316, Inc., appealed to the common pleas court which, following a de novo hearing, made essentially the same findings of fact as the Board, but remanded the matter to the Board “for reconsideration of the penalty only in light of the testimony adduced before the Court of Common Pleas.2 Following reconsideration, the Board reim.posed the original twenty-one day suspension, which the common pleas court subsequently affirmed without receiving further evidence.

Where the court below has taken no additional evidence and has affirmed a liquor license suspension, our scope of review is ‘limited to determining whether the Board’s order was supported by sufficient evidence and whether the court below abused its discretion or *568committed an error of law. Matter of Banks, 53 Pa. Commonwealth. Ct. 11, 416 A.2d 631 (1980).

1316, Inc. ’s sole contention before this Court is that the Board erred, as a matter of law, in reimposing the suspension without holding another hearing.3 This question is not, however, within our scope of review. Matter of Banks. Thus, 1316, Inc. has not presented a question for our review.

Affirmed.

Order

The order of the Philadelphia County Court of Common Pleas, dated April 8, 1980, at No. 2385 February Term, 1980, is hereby affirmed.

Section 491 of the Liquor Code provides, in pertinent part, as follows:

It shall be unlawful—

(10) For any licensee or any employe or agent of a licensee ... to refill wholly or in part, with any liquor or substance whatsoever, any liquor bottle or other liquid container.

Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-491.

Order of the Philadelphia County Common Pleas Court in Mise. Motion 78-032273, and dated January 11, 1979.

We note that this contention was not raised before the court below and was, therefore, waived. Department of Transportation, Bureau of Traffic Safety v. Searer, 50 Pa. Commonwealth Ct. 468, 413 A.2d 157 (1980). Presumably, this is the reason 1316, Inc. has not contended before this Court that the court below erred as a matter of law in affirming- the Board’s order reimposing the suspension.

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