Opinion
No. 889 C.D. 2012
07-11-2013
Kenrich Athletic Club, Appellant v. Pennsylvania Liquor Control Board
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Kenrich Athletic Club (KAC) appeals from the March 26, 2012 order of the Philadelphia County Common Pleas Court (trial court) granting the motion of the Pennsylvania Liquor Control Board (Board) to quash the appeal of KAC from the denial of its license renewal application as untimely.
Because the trial court's order quashed the appeal as untimely, the merits of KAC's appeal are not before us.
KAC filed a timely license renewal application for Club Liquor License No. C-1927 for its premises located at 121 South 19th Street, Philadelphia, Pennsylvania, for the period beginning November 1, 2008, and ending October 31, 2010. The Board informed KAC by letter that it conditionally approved KAC's license pending adjudication of three citations issued against KAC under section 470(b) of the Liquor Code. Subsequently, the Board notified KAC by letter dated May 21, 2010, that it objected to the license renewal and that the Board would hold a hearing pursuant to section 464 of the Liquor Code to determine if KAC's license should be renewed.
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-470(b). Section 470(b) provides that the Board may conditionally renew a license pending the adjudication of criminal charges or citations issued against the licensee.
47 P.S. §4-464. Section 464 provides that the Board may schedule a hearing to determine whether a license will be renewed.
A hearing examiner conducted a license renewal hearing on October 26, 2010, and continued the hearing on November 22, 2010. At the hearing, the Board presented evidence of five citations issued against KAC for violations of the Liquor Code and six incidents involving patrons that occurred at KAC. Francis Twardy, KAC's steward of record since August 22, 2007, and Christopher Twardy, KAC's secretary, presented testimony refuting the criminal nature of the club and demonstrating the safety measures that had been implemented.
The citations involved the following: selling alcoholic beverages to non-members; selling alcoholic beverages between 3:00 a.m. and 7:00 a.m.; permitting patrons to possess alcoholic beverages after 3:30 a.m.; failing to require patrons to vacate the premises where KAC served alcohol not later than one-half hour after the cessation of alcohol service; using a loudspeaker that could be heard outside the premises; selling an unlimited amount of alcoholic beverages for a fixed price; improperly admitting members; and interfering with a Liquor Control Enforcement officer in the performance of his duties. KAC was fined a total of $9,750.00 and had its license suspended for a total of 19 days as a result of these violations.
According to a January 26, 2009 police report, on January 17, 2009, KAC staff assaulted a patron because he was unable to pay his bill. On September 20, 2007, a disturbance occurred at KAC when a private party prevented a patron from entering KAC but was resolved peacefully by police. On January 6, 2008, a disturbance within KAC occurred when one patron bit another patron's face. On February 11, 2007, two patrons reported assaults by KAC bouncers. On July 15, 2008, an indecent exposure occurred at KAC in a closed room. On February 1, 2010, police had to break up a fight and disperse a crowd at 3:15 a.m. outside of KAC. As part of the incident, a responding officer asked KAC to produce a use and occupancy license, which it could not. (Notes of Testimony (N.T.), October 26, 2010, at 18-23, 29, 34-37, 41, 58-59, 63, 65-68, 79-80, 83-84, 103-04, 112-14.)
Francis Twardy testified that he effectively soundproofed the building and that KAC ensures every patron entering the club is a member. He also stated that KAC has been legally closed since May 2, 2010, because of violations found by the City of Philadelphia Department of Licenses and Inspections. (N.T., November 22, 2010, at 27-33, 66.)
Christopher Twardy testified that for most of the incidents KAC was either not at fault or he had no direct personal knowledge of how the incident occurred. He also testified regarding security measures implemented at KAC, including the hiring of an extra security officer to patrol the building, both inside and out, and the installation of proper soundproofing. (Id. at 80, 8284, 8788, 90, 92, 9401.)
Five additional witnesses testified regarding KAC's safety improvements and/or soundproofing.
The hearing examiner recommended that the Board deny KAC's license renewal. The hearing examiner stated that, with the exception of attempted soundproofing, KAC implemented no corrective measures following the citations. Further, the hearing examiner concluded that a pattern of activity existed at KAC that rose to the level of abuse of the license. By order dated April 20, 2011, the Board denied renewal of KAC's license.
Section 464 of the Liquor Code provides that a notice of appeal must be filed within 20 days from the issuance of the Board's license renewal decision. Therefore, KAC had until May 10, 2011, to file a timely appeal. On May 16, 2011, six days after the filing deadline, KAC filed a notice of appeal nunc pro tunc with the trial court.
On December 5, 2011, the Board issued an opinion in support of its order. The Board found that, while five citations within a short amount of time may have been enough evidence to deny KAC's license renewal, these citations, coupled with the incidents that occurred at KAC, warranted license non-renewal. Further, the Board noted KAC's failure to implement appropriate corrective measures. (Board op. at 52, 57.)
Prior to the Board filing a motion to quash, the trial court directed the parties to file briefs and scheduled a hearing on the merits for February 29, 2012. (Reproduced Record (R.R.) at 6a.) On February 28, 2012, the Board filed a motion to quash KAC's appeal as untimely. (Id.)
By order dated March 1, 2012, the trial court granted a request from KAC to continue the hearing from February 29, 2012, to April 25, 2012. In this order, the trial court noted that KAC failed to file a brief in accordance with its December 9, 2011 order and that it would consider the Board's motion to quash KAC's appeal at this hearing. Because KAC did not file an answer to the Board's motion to quash, it was assigned to the trial court as an uncontested motion on March 22, 2012. (Trial court op. at 2; R.R. at 7a.) Prior to the hearing, by order dated March 26, 2012, the trial court granted the Board's motion to quash and dismissed KAC's appeal. (R.R. 23a, 25a.)
KAC filed a motion for reconsideration, which the trial court denied by order dated April 19, 2012. KAC then filed a notice of appeal with this Court on April 24, 2012. (R.R. at 10a.) The trial court issued an opinion in support of its order, initially noting that an appeal of an order denying reconsideration is improper. Next, assuming arguendo that KAC correctly appealed the trial court's dispositive order, the trial court concluded that KAC failed to establish any reason to permit its untimely appeal nunc pro tunc. (Trial court op. at 2.) Relying on Grimaud v. Department of Environmental Resources, 638 A.2d 299 (Pa. Cmwlth. 1994), the trial court concluded that KAC did not demonstrate "a showing of fraud, breakdown in the administrative process or unique and compelling factual circumstances establishing a non-negligent failure to file a timely appeal." Id. at 303. The trial court noted that KAC's untimely appeal is not excused by its confusion about the March 2012 orders. The trial court also noted that KAC never filed a response to the Board's motion to quash. (Trial court op. at 2-3.)
KAC's notice of appeal incorrectly identified the order on review as the April 23, 2012 order denying its motion for reconsideration. By order dated June 29, 2012, this Court determined that KAC's appeal is deemed to have been taken from the March 26, 2012 order, as KAC filed its appeal within 30 days of this order and it is the only appealable order for review.
On appeal to this Court, KAC first argues that denial of a hearing on the motion to quash violated due process. KAC also argues that the trial court erred in granting the Board's motion to quash KAC's nunc pro tunc appeal, because the Board delayed filing the motion to quash until February 28, 2012.
Our scope of review for a trial court's order granting a motion to quash an appeal as untimely is limited to determining whether the trial court abused its discretion or committed an error of law. Tongel v. City of Pittsburgh, 756 A.2d 707, 708 (Pa. Cmwlth. 2000).
In relevant part, section 464 of the Liquor Code states:
Any applicant who has appeared at any hearing . . . who is aggrieved by the refusal of the board to . . . renew . . . any such license . . . may appeal . . . within twenty days from date of refusal or grant, to the court of common pleas of the county in which the premises or permit applied for is located.47 P.S. §4-464 (emphasis added).
The failure to file a notice of appeal within the statutory time limit is a defect that may not be disregarded, notwithstanding the Board's delay. Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965). In Yorktowne Paper Mills, a taxpayer's petition contesting its payment of a sales and use tax was denied. The taxpayer appealed to the Dauphin County Court of Common Pleas, which was then sitting as the Commonwealth Court. Approximately one month after the trial, the Commonwealth filed a motion to quash the taxpayer's appeal, raising the issue of timeliness for the first time. The Dauphin County Court of Common Pleas denied the motion because of lack of evidence in the record of the date the Finance and Revenue Board mailed its order to the taxpayer and laches.
On appeal, our Supreme Court held that the lower court erred by dismissing the Commonwealth's motion on the basis of laches. The court concluded that the doctrine of laches should not require dismissal of the Commonwealth's motion, even though it was filed one month after the case had been tried, because "it is necessary that the statutory procedures be given strict compliance." Id. at 367, 214 A.2d at 205. The court explained that "[t]he filing of a timely appeal being a jurisdictional requirement . . . the delay of the Commonwealth in raising the issue is of no consequence." Id. at 368, 214 A.2d at 205. The Supreme Court further stated that "[m]ere delay of one of of [sic] parties can not [sic] be said to extend the jurisdiction of the Commonwealth Court to hear appeals beyond the period allowed by statute." Id. Thus, in this case, the trial court did not err in considering the Board's motion to quash.
However, the Supreme Court remanded the case to the lower court for a determination of the date the Finance and Revenue Board mailed its order to the taxpayer.
An appeal nunc pro tunc is allowed only when: (1) the delay in filing is because of extraordinary circumstances that involve fraud or breakdown in the court's operation or non-negligent circumstances concerning either the appellant or the appellant's counsel; (2) the appeal is filed within a short time after the appellant or the appellant's counsel discovered and had an opportunity to address the untimeliness; (3) the elapsed time period is short; and (4) the appellee is not prejudiced by the delay. Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 383-85, 671 A.2d 1130, 1131 (1996); J & R's Smokehouse, Inc. v. Pennsylvania Liquor Control Board, 611 A.2d 786 (Pa. Cmwlth. 1992) (holding that section 464 of the Liquor Code governed license renewal appeals and that the licensee did not present sufficient evidence to show that the licensee should have more than 20 days to file the appeal).
As in J & R's Smokehouse, the record demonstrates that KAC filed its notice of appeal to the trial court beyond the 20-day time limit prescribed in section 464 of the Liquor Code and that KAC did not present sufficient evidence justifying an appeal nunc pro tunc. KAC contends that Francis Twardy did not receive the Board's decision until April 26, 2011, and that KAC's attorney did not receive the Board's denial of license renewal until April 27, 2011. (Brief for Appellant at 8.) KAC further contends that the Board improperly mailed its decision to Francis Twardy's home address instead of the proper business address, which the Board had previously used for correspondence. Id. at 14. KAC did not present evidence to support its contentions, and, more importantly, did not assert that the 14-day period was not enough time to file the notice of appeal or ask the court for a deadline extension. Because KAC did not file an appeal of the Board's decision within 20 days as required by section 464 of the Liquor Code and did not demonstrate that the delay in filing its appeal was because of extraordinary circumstances that involved fraud or breakdown in the court's operation or non-negligent circumstances that concerned either KAC or KAC's counsel, the trial court did not err in granting the Board's motion to quash and dismissing KAC's appeal.
Francis Twardy also admitted in KAC's notice of appeal that he thought KAC had a 30-day window to appeal the Board's denial of KAC's license renewal.
Because KAC failed to meet the first criteria in Cook, we need not address the remaining three factors.
Accordingly, the order of the trial court is affirmed.
KAC further argues that the Board's license renewal process is unconstitutional and that its license should have been renewed. Because we affirm the trial court's dismissal of the appeal as untimely, we need not address KAC's constitutional arguments or the reasons underlying the non-renewal of KAC's license. --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 11th day of July, 2013, the March 26, 2012 order of the Philadelphia County Common Pleas Court is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge