Opinion
No. 915 C.D. 2012
05-20-2013
7101 Frankstown, Inc. v. Pennsylvania Liquor Control Board, Appellant
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McCULLOUGH
The Pennsylvania Liquor Control Board (Board) appeals from the April 12, 2012 order of the Court of Common Pleas of Allegheny County (trial court) remanding the matter to the Board for further proceedings, including the presentation of evidence from 7101 Frankstown, Inc. (Licensee) regarding any remedial measures it has undertaken.
In this order, the trial court also retained jurisdiction in the event of a further appeal following the remand.
On June 13, 2011, Licensee filed an untimely application with the Board seeking renewal of Restaurant Liquor License No. R-1279 for the premises located at 7101 Frankstown Avenue, Pittsburgh, Pennsylvania (licensed premises), for the period beginning June 1, 2011, and ending May 31, 2013. (Reproduced Record (R.R.) at 78a-82a.) Section 470(a) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-470(a), provides that an application for renewal of a license shall be filed at least sixty days before the expiration date of the current license. However, this section permits nunc pro tunc filings upon a showing of reasonable cause and the payment of a late filing fee of $100.00.
The Board's Bureau of Licensing (Bureau) thereafter advised Licensee that it objected to the renewal of Licensee's liquor license and, pursuant to section 464 of the Liquor Code, 47 P.S. §4-464, ordered that a hearing be held with respect to Licensee's renewal application. By letter dated June 20, 2011, the Bureau set forth the following reasons for its objection:
1. It is alleged that you have abused your licensing privilege, and pursuant to Section 470 of the Liquor Code (47 P.S. §4-470), you may no longer be eligible to hold a license based upon:
a) [V]iolation of the Liquor Code relative to Citation Number 10-1796.
b) The improper conduct of your licensed establishment as there have been approximately two (2) incident[s] of disturbance at or immediately adjacent to your licensed establishment during the time period June 1, 2009 to the present reported to the Pittsburgh Police Department. This activity includes but is not limited to a fight and shots fired.
2. The Bureau of Licensing has rejected the late-filed renewal application pursuant to Section 470(a) of the Liquor Code (47 P.S. Section 4-470(a)).(R.R. at 83a-85a.)
The Board's hearing examiner conducted a hearing on August 25, 2011. Although Licensee was provided notice of the time and date, Licensee failed to appear at the Board's hearing. (R.R. at 68a.)
Counsel for the Board first noted Licensee's admission to Citation Number 10-1796 in 2010, charging Licensee with multiple violations of the Liquor Code and the Board's regulations. (R.R. at 69a.) Counsel also presented the testimony of Officer Michael Burford of the City of Pittsburgh Police Department. Officer Burford testified that he was familiar with the licensed premises and had responded to numerous incidents there over the last seven years, including several shootings and situations involving loud music, loitering, and disorderly persons. Regarding the shootings, Officer Burford recalled responding to a patron shot inside the licensed premises on June 15, 2010, and a report of shots fired outside the premises on February 9, 2011, involving an evicted patron and Licensee's security guard/doorman. Officer Burford described the licensed premises as a nuisance bar. (R.R. at 70a-75a.)
Counsel for the Board thereafter entered into the record five additional police reports involving the licensed premises, including: the arrests of two patrons, with the assistance of on-site security, for possession of marijuana and crack cocaine in March 2010; a report of indecent assault by the bar manager on a female patron inside the licensed premises in June 2010; a criminal mischief complaint relating to a vehicle in the bar's parking lot in February 2011; a report of shots fired at a vehicle occupied by two females outside the licensed premises in April 2011 following a fight among eight females inside the premises earlier in the night; and a report of an investigation by the Pittsburgh Police Nuisance Bar Task Force in March 2011, finding no major violations. (R.R. at 76a, 94a-114a.)
The indecent assault report was later cleared due to a lack of cooperation from the purported victim.
Based upon its review of the record from the hearing, the Board, by order dated October 26, 2011, refused Licensee's application for renewal. (R.R. at 63a-64a.) Licensee appealed to the trial court. On December 19, 2011, the Board filed its opinion in this matter, citing the prior incidents at the licensed premises, the lack of any evidence of remedial measures undertaken by Licensee, and the untimely filing of Licensee's renewal application as the bases for its refusal.
Section 464 of the Liquor Code provides that the trial court shall hear the appeal de novo on "questions of fact, administrative discretion and such other matters as are involved" and "shall either sustain or over-rule the action of the board and either order or deny the...renewal...." 47 P.S. §4-464.
The trial court held a de novo hearing on April 12, 2012. (R.R. at 115a-46a.) The Board introduced into evidence the certified record below and rested. Counsel for Licensee called Brian Stanton, one of Licensee's owners, to testify, but the trial court requested that counsel first give a brief summary. Counsel identified the relevant incidents and the remedial measures undertaken by Licensee in response thereto. Counsel also noted that owners of Licensee were on vacation when the notice of the Board hearing was mailed out, approximately twelve days before the hearing date, and did not return until after that date. Mr. Stanton never testified.
Instead, following this discussion, the trial court indicated its intention to remand the matter to the Board for further proceedings, including the presentation of additional evidence from Licensee regarding any remedial measures it has undertaken and any other relevant evidence or witnesses. The trial court subsequently issued an order to this effect. (R.R. 3a; 140a-46a.)
On May 10, 2012, the Board appealed to this Court. By sua sponte order dated June 12, 2012, this Court directed the parties to address the question of the appealability of the trial court's April 12, 2012 order under Pa. R.A.P. 311(f) in their briefs on the merits. On July 24, 2012, the trial court issued a statement in lieu of opinion alleging that the Board's appeal was premature.
On appeal, we must first address whether the trial court's April 12, 2012 order is interlocutory and not appealable.
Where the trial court hears the matter de novo, this Court's scope of review is limited to determining whether the trial court abused its discretion, committed an error of law, or made unsupported findings of fact. Pennsylvania State Police v. S&B Restaurant, Inc., 52 A.3d 513 (Pa. Cmwlth. 2012).
This Court has repeatedly held that orders remanding a matter to an administrative agency for additional hearings are interlocutory and not appealable. Philadelphia Commission on Human Relations v. Gold, 503 A.2d 1120 (Pa. Cmwlth. 1986). However, we noted a narrow exception in Gold in situations where the remand order settles an issue "for all intents and purposes." Id. at 1121 (quoting Beaver Valley Intermediate Unit v. Pennsylvania Labor Relations Board, 411 A.2d 1311, 1312 (Pa. Cmwlth. 1980)). This exception has since been codified at Pa. R.A.P. 311(f)(2), which permits an appeal as of right from:
[A]n order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer that decides an issue which would ultimately evade appellate review if an immediate appeal is not allowed.
The Board, relying on Gold and Beaver Valley, argues that the trial court's order fits within this narrow exception because, should this Court dismiss its appeal as interlocutory, its original opinion will be rendered a nullity and it will be forced to render a new opinion based upon different evidence. While the Board correctly notes the consequence of the dismissal of its appeal, the fact remains that the present case is distinguishable from Gold and Beaver Valley in that the trial court's April 12, 2012 order did not decide any issues.
In Gold, a common pleas court remanded an employment discrimination matter to the Philadelphia Commission on Human Relations for a new hearing because of an impermissible commingling of prosecutorial and adjudicatory functions. The Commission appealed to this Court, and Gold filed a motion to quash alleging that the common pleas court's order was interlocutory. This Court ultimately dismissed Gold's motion to quash, concluding that the common pleas court's order amounted to a final order on the impermissible commingling issue, an issue which would never be reached on appeal if the remand was allowed to proceed.
In Beaver Valley, a common pleas court issued an order remanding a unit clarification matter to the Pennsylvania Labor Relations Board (PLRB) to reconsider its determination because the PLRB abused its discretion in refusing to consider the intermediate unit's exceptions. The intermediate unit had filed a petition for unit clarification seeking to classify several employees as confidential employees. The PLRB appealed to this Court and the intermediate unit filed a motion to quash alleging that the common pleas court's order was not a final order. This Court ultimately dismissed the intermediate unit's motion to quash, concluding that the common pleas court ordered a remand solely for the purpose of determining the confidential employee question and that its determination on the abuse of discretion issue was clearly a final determination of that question.
In the present case, the trial court's April 12, 2012 order did not decide an issue which would evade appellate review, nor did this order render a final determination of any specific issue. To the contrary, the trial court's order set forth no findings or legal conclusions and did not otherwise adjudicate any rights. Rather, the trial court's order merely remanded the matter to the Board for further proceedings before the hearing examiner, including the presentation of additional evidence by Licensee.
In this regard, it is evident that the trial court was concerned with respect to the relatively short time period between the mailing of Board's hearing notice and the actual hearing date. --------
While the Board correctly notes that the trial court conducts de novo review of Board decisions and may itself receive additional evidence, the trial court is not required to retry the case in its entirety. Two Sophia's v. Pennsylvania Liquor Control Board, 799 A.2d 917 (Pa. Cmwlth. 2002) (citing Pennsylvania State Police v. Kelly's Bar, 536 Pa. 310, 639 A.2d 440 (1994)). Rather, the trial court is afforded wide discretion with respect to its de novo review. Indeed, we noted in Two Sophia's that while a common pleas court, in the course of conducting de novo review, must accept the record of the Board if offered, the trial court has discretion to consider any additional evidence properly received at a de novo hearing. The Board cites no authority, and we have found none, prohibiting the trial court from remanding a matter to the Board for consideration of such additional evidence.
Because the trial court's April 12, 2012 order is interlocutory and did not decide any issues which might evade appellate review, the order is not appealable, and the Board's appeal must be quashed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 20th day of May, 2013, the Pennsylvania Liquor Control Board's appeal of the April 12, 2012 order of the Court of Common Pleas of Allegheny County is hereby quashed.
/s/_________
PATRICIA A. McCULLOUGH, Judge