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Scherer Liquor License Case

Superior Court of Pennsylvania
Sep 13, 1962
184 A.2d 502 (Pa. Super. Ct. 1962)

Opinion

June 13, 1962.

September 13, 1962.

Liquor Law — Licenses — Quota — Liquor Code — Amendments of December 17, 1959, P. L. 1932 and August 11, 1959, P. L. 670 — Savings clause — Applications filed and pending prior to effective date of amendment — Act of July 10, 1957, P. L. 638 — "Last preceding decennial census".

In this case, in which it appeared that the applicants filed an application for a restaurant liquor license on February 1, 1960; that as of the date of filing of the application the quota of liquor licenses for the township, under the Liquor Code, as amended August 11, 1959, P. L. 670 (which provided that no license should be granted in excess of one for each one thousand inhabitants or fraction thereof in any municipality) was filled; that the application was heard by the board in July, 1961 (after the effective date, February 2, 1960, of the amendatory act of December 17, 1959, P. L. 1932 (which provides no license shall be granted in excess of one for each fifteen hundred inhabitants or fraction thereof) and after the date of certification, April 1, 1960, of the 1960 census); and that the court below reversed the action of the board in refusing issuance of the license, holding that (a), in view of the provision of the Act of December 17, 1959, that it shall not apply to applications for licenses "filed and pending" prior to its effective date, this amendment was not applicable to applications filed before the effective date whether or not there was a vacancy under the quota law at the time of filing, (b) the application was pending at the date of the board's hearing, and (c) under § 1 of the Act of July 10, 1957, P. L. 638 (which amends the Liquor Code and defines "population" as meaning the number of inhabitants as determined by the "last preceding decennial census" of the United States), the phrase "last preceding decennial census" means last in relation to the time of hearing or issuance of the license, and not last in relation to the time of filing the application, and, therefore, the census of 1960 was to be applied in fixing the quota as applied to the instant application; it was Held that the order of the court below should be affirmed.

Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.

Appeal, No. 236, Oct. T., 1962, from order of Court of Quarter Sessions of Delaware County, Sept. T., 1961, Quarter Sessions Docket A-25, page 379, in re appeal of Gaven Scherer and Kathryn Scherer, his wife, from decision of Pennsylvania Liquor Control Board. Order affirmed.

Same case in court below: 28 Pa. D. C. 2d 60.

Appeal by applicant from decision of Pennsylvania Liquor Control Board refusing application for restaurant liquor license. Before TOAL, J.

Order entered reversing decision of board and directing license to issue. Commonwealth appealed.

William N.J. McGinniss, Special Assistant Attorney General, with him George G. Lindsay, Assistant Attorney General, and David Stahl, Attorney General, for Pennsylvania Liquor Control Board, appellant.

Albert J. Crawford, Jr., for appellees.


RHODES, P.J., filed a dissenting opinion, in which WOODSIDE, J., joined.

Argued June 13, 1962.


The order of the Court of Quarter Sessions of Delaware County is affirmed on the per curiam opinion of the court below, reported at 28 Pa. D. C. 2d 60.


I would reverse the order of the court below which has been affirmed by a majority of this Court.

The amendment of December 17, 1959, P. L. 1932, to section 461 of the Liquor Code of April 12, 1951, P. L. 90, 47 P. S. § 4-461, changing the quota from one license for "each one thousand inhabitants or fraction thereof" to one license for "each one thousand five hundred inhabitants" was plainly intended not to increase but to restrict the number of licenses in a municipality. The proviso in section 2 that "this amendment shall not apply to applications for licenses . . . filed and pending" prior to the effective date (February 2, 1960) of the amendment was clearly intended to cover only cases where a vacancy existed under quota restrictions in effect prior to the 1959 amendment. The 1959 proviso was intended to preserve the status quo as to an application "pending" for a vacancy then existing under the former quota restriction of one license to every one thousand inhabitants or fraction thereof. That is, the more restrictive quota provisions of one license to every one thousand five hundred inhabitants rather than one to every one thousand inhabitants or fraction thereof would not apply to the pending application for which a vacancy in the quota otherwise existed at the time the 1959 amendment went into effect. Obviously, without this proviso, a "pending" application for a vacancy then existing under the old quota would be cut off and rendered nugatory by immediate application of the new and more restrictive quota provision of the 1959 amendment, assuming no change in population figures. Spankard's Liquor License Case, 138 Pa. Super. 251, 10 A.2d 899.

The 1959 amendment was not intended to enlarge an existing quota and create a vacancy where none existed before, either under the old or new quota provisions. Nor was the 1959 amendment intended to serve as a vehicle whereby an applicant could take advantage of population increase, after the 1959 amendment, and relate that population increase back to effect a vacancy in the quota where no vacancy ever existed under the prior quota provision. If vacancies are created as a result of increased population through a census subsequent to the 1959 amendment, applicant might be entitled to a license, but this would be under the quota as defined in the 1959 amendment, and there would be no need or occasion for reliance on the exception in the amendment covering "pending" applications. As the lower court states in this case: ". . . the 1960 census certified as of April 1, 1960 showed a population in Middletown Township of 11,256 an increase of 4000 above the 1950 census; . . . this would maintain the quota allowance at seven if the basis were one license per 1500 population, . . ." Therefore no vacancy existed under the 1959 quota provision and the 1960 census figures.

Certainly the 1959 amendment was not intended to be construed to create vacancies under the quota where none otherwise existed prior to the effective date of the 1959 amendment. Quota restrictions are binding upon both the board and the courts. Zeltner Liquor License Case, 174 Pa. Super. 98, 100 A.2d 132; Bethel Township Veterans Home Association Liquor License Case, 180 Pa. Super. 159, 165, 119 A.2d 613; Talley Liquor License Case, 184 Pa. Super. 458, 460, 461, 136 A.2d 143. The result reached by the lower court in this case, and the interpretation put upon the word "pending" as applied to the admitted facts are illogical and wholly at odds with the plain purpose of the 1959 restrictive amendment to the quota provisions of the Liquor Code.

On substantially similar facts, other courts have arrived at a conclusion contrary to that of the court below in this case: Opinion of Judge JOHNSTONE, Kress Appeal, 58 Lancaster Law Review 102; and opinion of President Judge RODGERS, Liquor License Application of Joseph E. Rock, 5 Mercer County Law Journal 89.

WOODSIDE, J., joins in this dissent.


Summaries of

Scherer Liquor License Case

Superior Court of Pennsylvania
Sep 13, 1962
184 A.2d 502 (Pa. Super. Ct. 1962)
Case details for

Scherer Liquor License Case

Case Details

Full title:Scherer Liquor License Case

Court:Superior Court of Pennsylvania

Date published: Sep 13, 1962

Citations

184 A.2d 502 (Pa. Super. Ct. 1962)
184 A.2d 502

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