Opinion
Argued March 24, 1987.
May 26, 1987.
Liquor — Demurrer — Prohibition of tournaments — Act of February 28, 1985, P.L. 1.
1. A demurrer will be sustained only when, after accepting all well-pleaded material, relevant facts in the complaint as true as well as all reasonable inferences therefrom, there is a certainty under the law that no recovery is possible and the complaint is clearly insufficient to establish any right to relief. [323-4]
2. The legislature may impose such conditions upon the granting of a liquor license as it sees fit, and the Act of February 28, 1985, P.L. 1, prohibiting tournaments in licensed premises is not unconstitutional and does not constitute an unlawful taking of the opportunity of a person not holding a liquor license to earn money from tournaments on licensed premises. [324]
Argued March 24, 1987, before President Judge CRUMLISH, JR., Judge PALLADINO, and Senior Judge NARICK, sitting as a panel of three.
Original jurisdiction No. 2798 C.D. 1986 in the case of Michael J. Horan v. Commonwealth of Pennsylvania, and Pennsylvania Liquor Control Board.
Petition for review filed in the Commonwealth Court of Pennsylvania seeking declaratory judgment against Commonwealth of Pennsylvania and Pennsylvania Liquor Control Board. Commonwealth and Board filed preliminary objections. Held: Preliminary objections sustained. Complaint dismissed.
Joseph DiPaolo, with him, Michael C. George, Ferris, DiPaolo Russo, for petitioner.
Thomas B. York, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, Office of Attorney General.
Michael J. Horan has filed an action for declaratory judgment in this Court's original jurisdiction the constitutionality of the Act of February 28, 1985, P.L. 1 (Act 1985), which prohibited tournaments within premises licensed by the Pennsylvania Liquor Control Board (PLCB). The Commonwealth and the PLCB have filed preliminary objections, which are before the Court at this time. We sustain the preliminary objections and dismiss Horan's complaint.
The Declaratory Judgments Act is found at 42 Pa. C. S. § 7531-7541.
In his complaint, Horan avers that he is engaged in the business of operating tournaments in this Commonwealth and that the enactment of Act 1985 violated his rights to equal protection and due process of law. Horan does not allege that he owns a liquor license. Act 1985 repealed former Section 476 of the Liquor Code, which permitted tournaments in licensed premises.
Horan does not specifically cite which federal and/or state constitutional provisions have been violated. However, the equal protection and due process clauses are found in U.S. CONST. amend XIV, § 1 and PA. CONST. art 1, § 26.
Section 476 of the Act of April 12, 1951, P.L. 90, as amended, added by Section 5 of the Act of May 9, 1984, P.L. 246, formerly 47 P. S. § 4-476, repealed by Act 1985. That section read:
Sporting Tournaments. — (a) Any . . . retail or club licensee, either alone or in combination, may sponsor, hold or permit to be held, on the licensed premises or on premises contiguous and adjacent thereto, a . . . card tournament or contest without having to obtain any permits therefor.
. . . .
(c) Cash moneys or negotiable instruments of any type or kind, or trophies, prizes or premiums may be offered or awarded, traded or received by any person at such . . . card tournaments or contests.
The Commonwealth and PLCB assert four grounds in support of their preliminary objections: (1) failure to state a cause of action (demurrer); (2) lack of standing to raise the claims asserted; (3) failure to join indispensable parties (licensed premises); and (4) ripeness.
Turning to the Commonwealth's demurrer, we note that preliminary objections in the nature of a demurrer are not to be sustained unless the law says with a certainty that no recovery is possible and the complaint is clearly insufficient to establish any right to relief. Allegheny County v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985). All well-pleaded, material, relevant facts found in the complaint and every inference fairly deducible therefrom are admitted as true by the objector. Id.
Act 1985 regulates the operation of tournaments in licensed establishments. Tournaments are prohibited except for those organized on the behalf of charitable organizations and conducted in areas removed from alcohol. Horan alleges that he was injured because he is not permitted to continue operating his tournament business in establishments licensed by the PLCB.
The tournament must be conducted in a room separate from the main alcoholic and malt beverage area, and alcoholic beverages shall not be permitted within the area. 40 Pa. Code § 5.32(g) (1)(i)(v).
In Replogle v. Pennsylvania Liquor Control Board, ___ Pa. ___, 523 A.2d 327 (1987), our Supreme Court recently restated the well-settled principle that the legislature may impose such conditions upon the granting of liquor licenses as it sees fit. Pa. ___ at ___, 523 A.2d at 330. Thus, the regulation of tournaments on licensed premises is well within the legislature's discretion. Moreover, the loss of an opportunity for business income tied to a liquor license is not compensable where there is no property taken for public use. Id.
Accepting all averments in Horan's complaint as true, we hold that he fails to state a cause of action upon which relief can be granted. The Commonwealth and PLCB's preliminary objections are granted.
Since the demurrer is dispositive of Horan's complaint, we need not address the remaining preliminary objections.
ORDER
After argument and upon consideration of the respondents' preliminary objections and petitioner's reply thereto, it is ordered that the preliminary objections are granted and Horan's action for declaratory judgment is dismissed.