In re Honey Bear, Inc. Revocation of Liquor License

406 A.2d 814, 45 Pa. Commw. 185, 1979 Pa. Commw. LEXIS 1906
CourtCommonwealth Court of Pennsylvania
DecidedAugust 21, 1979
DocketAppeal, No. 1820 C.D. 1977
StatusPublished
Cited by4 cases

This text of 406 A.2d 814 (In re Honey Bear, Inc. Revocation of Liquor License) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Honey Bear, Inc. Revocation of Liquor License, 406 A.2d 814, 45 Pa. Commw. 185, 1979 Pa. Commw. LEXIS 1906 (Pa. Ct. App. 1979).

Opinions

Opinion by

Judge MacPhail,

The Liquor Control Board (Board) appeals from an order of the Court of Common Pleas of Allegheny County reversing the Board’s revocation of a liquor license issued to Honey Bear, Inc. (Honey Bear) and ordering the Board to renew Honey Bear’s license. The only issue raised by the Board in this appeal is whether the order of the Court of Common Pleas is in error. Before deciding that issue, however, we must determine whether this case is controlled by Section 468 of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-468 which was in effect at the time the Board revoked Honey Bear’s license or by Section 468(b.l) of the Code, added by Section 2 of the Act of November 26, 1978, P.L. 1389, which became effective while the case was on appeal. For the reasons which follow, we hold that Section 468 of the Code is the controlling statute and that the lower court erred as a matter of law in reversing the Board’s revocation of Honey Bear’s license.

The facts of this case, although not in dispute, are important to an understanding of our disposition. On October 14, 1976, a Petition for Dissolution of Honey Bear was filed in the Court of Common Pleas of Allegheny County by Bennie Andy, a shareholder, officer and creditor of Honey Bear alleging, inter alia, that Honey Bear was insolvent. The Court, on the same day, entered an order appointing a receiver pendente lite and on December 6, 1976 made that appointment permanent. In January, 1977, the Board notified Honey Bear through Andy that the Board had received information that the licensee was insolvent and that a citation to show cause why the license should not be suspended or revoked might issue. On February 21, 1977, following an exchange of correspondence with the Board, the receiver placed the license in safekeeping with the Board. On March 1, [188]*1881977, the Board issued a show cause citation why the license should not he revoked and fixed a hearing on the petition for April 29, 1977. On March 2, 1977, the receiver filed with the Board an application for renewal of the license.1 On April 14,1977, the receiver’s application for renewal was denied by a letter from the Board. On April 29, the Board conducted a hearing on the show cause citation and on May 23, 1977 entered an order revoking the license. On May 30, 1977, the receiver appealed from the Board’s denial of the application for renewal of the license. The receiver filed a timely appeal with the Allegheny County Court of Common Pleas from the Board’s order of May 23, 1977 revoking the license. On August 15, 1977, the Court of Common Pleas of Allegheny County entered the order from which the Board now appeals.

At the time of Honey Bear’s insolvency and for more than a year thereafter, Section 468 of the Code was in effect. That section read:

(b) In the event that any person to whom a license shall have been issued under the provisions of this article shall become insolvent, . . . the license of such person shall immediately terminate and be cancelled without any action on the part of the board, and there shall be no refund made or credit given for the unused portion of the license fee for the remainder of the license year for which said license was [189]*189granted. Thereafter, no license shall be issued by the board for the premises wherein said license was conducted to any assignee, committee, trustee, receiver, or successor of such licensee, until a hearing has been held by the board as in the case of a new application for license. In all such cases, the board shall have the sole and final discretion as to the propriety of the issuance of a license for such premises and as to the time it shall issue and the period for which it shall be issued, and shall have the further power to exact conditions under which said license shall be conducted.

While this appeal was pending in this Court, Section 468(b.l) became effective. That Section provides that:

(b.l) In the event that any person to whom a license shall have been issued under the provisions of this article shall become insolvent, . . . the license of such person shall be immediately placed in safekeeping with the board for the balance of the term of the license and for an additional period of one year upon application to the board by the trustee, receiver, or assignee. The trustee, receiver, or assignee shall have, during said period of safekeeping, the same rights, benefits and obligations as to the license as the person to whom the license had been issued, including the right to transfer the license subject to the approval of the board. The license shall continue as a personal privilege granted by the board and nothing herein shall constitute the license as property.

Honey Bear argues that Section 468 (b.l) is a procedural law rather than one affecting vested rights and, therefore, should be applied to any litigation pending at the time of its enactment. Honey Bear’s statement of this general legal principle is correct. [190]*190See Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 166, 110 A. 731, 732 (1920); Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 183, 305 A.2d 757, 761 (1973); Penelope Club Liquor License Case, 136 Pa. Superior Ct. 505, 513-14, 7 A.2d 558, 562 (1939). Its application of the principle to the facts of this case, however, is not correct.

Section 468 mandated that upon the insolvency of any person holding a liquor license “the license . . . shall immediately terminate and be cancelled without any action on the part of the board. ...” Therefore, Honey Bear’s license was terminated by operation of law on October 14, 1976, the date when the temporary receiver was appointed. The Board’s subsequent hearing and order on the revocation of the license had no effect on the termination of the license as of October 14, 1976. The language of Section 468 is explicit that no action on the part of the Board is required to effectuate a termination or cancellation of the license. The Board’s hearing on April 29 was not required procedurally or substantively and the order entered by the Board on May 23 was not necessary to revoke, suspend or cancel the subject license.

The situation here is analogous to the one we addressed in Meyers v. The Board of Supervisors of Lower Makefield Township, Pa. Commonwealth Ct. , 402 A.2d 278 (1979). Meyers involved the establishment of zoning standards which became effective after the case had been argued to us on appeal. There we held that because the standards applied only to actions before a Court of Common Pleas and because the case was no longer pending before such a court, the new standards would not be applied retroactively to the case on appeal. Here, Section 468 (b.l) establishes the procedures to be followed when a liquor licensee becomes insolvent. In this case, Honey Bear had already become insolvent and its license had al[191]*191ready been terminated by operation of law before the enactment of Section 468(b.l). Therefore, the Act cannot be applied retroactively to a license that no longer exists.

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Bluebook (online)
406 A.2d 814, 45 Pa. Commw. 185, 1979 Pa. Commw. LEXIS 1906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-honey-bear-inc-revocation-of-liquor-license-pacommwct-1979.