Boch Appeal

26 Pa. D. & C.2d 116, 1961 Pa. Dist. & Cnty. Dec. LEXIS 82

• Court: Luzerne County Court of Quarter Sessions
• Decided: July 26, 1961
• Docket: no. 206
• Status: Published

Opinion

Pinol A, P. J.,

Louis Boch, of the City of Wilkes-Barre, has appealed from an order of the Pennsylvania Liquor Control Board suspending his restaurant liquor license for a period of 25 days.

The citation charges that on Sunday, May 8, 1960, and Sunday, May 15, 1960, he sold liquor and malt or brewed beverages to patrons, and that on July 12, 1960, he, his servants, agents or employes, refilled State Store liquor bottles . . .

On July 12, John Pensiero, a board agent, visited appellant’s place of business with other agents and took six partially filled bottles of whiskey for analysis. Three of these were found by the chemist, Vance Rank, to have been refilled. One bottle bearing, the label of Corby’s did not, in his opinion, “contain Cor-by’s whiskey as called for by the label and had, in fact, been refilled by another brand of whiskey,” equally as good.

The chemist testified that sometimes a cheaper whiskey is better than other whiskey. Price is not necessarily the final criterion of quality.

The analysis of a bottle bearing a Schenley label was about the same as the analysis of the Corby whiskey, and it was the opinion of the chemist “that the same whiskey was used to refill both bottles.”

In the opinion of the chemist, the consumer was deceived in what he was receiving. . . .

Discussion

Appellant denied refilling any liquor bottles but admitted that the refilling could have been done by either, or both, of the two bartenders who worked for him.

This is a most unusual situation. Ordinarily, the substance used for refilling is of an inferior grade. Here, the chemist said it was at least equal in quality to the labeled whiskey. While the consumer is not defrauded but only deceived, it is quite possible that the State was defrauded through the refilling with liquor purchased outside of the State at prices lower than State Store prices.

Under the Act of April 12, 1951, P. L. 90, art. IV, sec. 491 (10), 47 PS §4-491, it is unlawful

“For any licensee ... to fortify, adulterate or contaminate any liquor, except as permitted by the regulations of the board, or to refill wholly or in part, with any liquid or substance whatsoever, any bottle or other container bearing the official seal of the board.”

This is a very broad prohibition and, in our judgment, includes the refilling in this case.

Accordingly, since the facts found are identical with those found by the board, we are required to enter the following

Order

The appeal of appellant is dismissed, and his license is suspended for a period of 25 days, the time thereof to be fixed by the Pennsylvania Liquor Control Board.