Pa. Tavern Ass'n v. Com., Liq. Control Bd.

372 A.2d 1187, 472 Pa. 567, 1977 Pa. LEXIS 660

• Court: Supreme Court of Pennsylvania
• Decided: January 28, 1977
• Docket: 7
• Status: Published

Opinions

OPINION

PER CURIAM.

On May 8, 1972, the Pennsylvania Liquor Control Board (Board) issued identical citations against the appellants in this action, three Lancaster County beer distributors; Elemar, Inc., Garrett Hill Beverage Co., Inc. and Railsplitter, Inc., all of which were trading under the name “Thrifty Beverage”. Each of the licensees was charged with having “permitted a person who has an interest in another Distributor or Importing Distributor License to have an interest in your licensed premises,” in violation of Sections 436(f) and 438(b) of the Pennsylvania Liquor Code.¹

After an administrative hearing held on August 25, 1972, the Board determined that the franchise agreements between each of the appellant licensees and their managing, consulting firm, General Programming, Inc., did in fact violate the aforementioned Code provisions, and suspended the licensees respective distributor’s licenses for a period of twenty-one days and thereafter, until all persons other than the licensees had divested themselves of all interest in the licensed businesses. That decision was subsequently appealed by all three licensees to the Court of Common Pleas of Lancaster County which, after holding a de novo hearing, sustained the Board’s order.²

The licensees thereafter filed an appeal before the Commonweal: h Court. However, on August 19, 1974, prior to argument and submission of briefs, the Board, the licensees and General Programming, Inc., entered into a stipulation in which the three licensees cancelled and modified all existing contracts with General Programming, Inc. to conform to the opinion of the Court of Common Pleas of Lancaster County. In addition, the Board agreed to vacate its original order and instead of suspension, imposed a fine of $1,000.00 upon each of the licensees. Thereafter, pursuant to the stipulation, which was never approved by the Lancaster County or Commonweath Courts, the licensees withdrew their appeals then pending in the Commonwealth Court.

On December 10, 1974, appellees in this appeal, Pennsylvania Tavern Association and P.U.B.L.I.C.,³ initiated the present mandamus action in Commonwealth Court, seeking to compel the Board to enforce the original suspension order.⁴ The Commonwealth Court, after dismissing preliminary objections filed by the Board,⁵ concluded that the Board lacked authority to modify its order after it had been judicially reviewed and sustained, and granted appellees’ motion for summary judgment. The court issued the requested writ of mandamus, ordering the Board to reinstate and enforce its original order of suspension. This appeal followed.⁶ Because we do not believe that the relief requested by the appellees and granted by the Commonwealth Court was appropriate on this record, we reverse.

This Court has repeatedly stated that mandamus “is a high prerogative writ representing an extraordinary remedy which will not be granted in doubtful cases.” Francis v. Corleto, 418 Pa. 417, 421, 211 A.2d 503, 505 (1965). Moreover, it is by now axiomatic that mandamus lies to compel the performance of a ministerial act or mandatory duty only “where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.” Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 295, 297 A.2d 823, 825 (1972) (emphasis added). See also, Philadelphia Presbytery Homes, Inc. v. Abington Board of Commissioners, 440 Pa. 299, 269 A.2d 871 (1970); Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970); Verratti v. Ridley Township, 416 Pa. 242, 206 A.2d 13 (1965); Mellinger v. Kuhn, 388 Pa. 83, 130 A.2d 154 (1957); Garratt v. Philadelphia, 387 Pa. 442, 127 A.2d 738 (1956); Commonwealth v. Mitchell, 82 Pa. 343 (1876). It is therefore clear that if appellees had available an adequate alternative remedy by which to seek relief, the Commonwealth Court abused its discretion in granting the requested writ of mandamus. See, Porter v. Bloomsburg State College, 450 Pa. 375, 301 A.2d 621, cert. denied, 414 U.S. 844, 94 S.Ct. 105, 38 L.Ed.2d 82 (1973).

In our view, an adequate remedy was available to the appellees in this action by way of a petition to the Lancaster County Court to enforce its own order sustaining the license suspension imposed by the Board. It has long been recognized that courts of general jurisdiction have the power to make effective whatever orders they are authorized to enter. See generally, 60 C.J.S. Motions and Orders § 67 (1958). We believe, in the circumstances of this case, that enforcement of the order should have been sought first in the Court of Common Pleas of Lancaster County.⁷ That court, being most familiar with the questions raised and record compiled in the enforcement action, was unquestionably in the best position to consider the legal and practical consequences of the Board’s proposed modification of its own order. Thus, it would be most consistent with judicial efficiency to require the court whose order is being ignored or modified to pass upon the wisdom of that action. For this reason, we hold that the Commonwealth Court abused its discretion in issuing the writ in view of the availability to appellees of an adequate alternative remedy at law.

Order of the Commonwealth Court reversed.

ROBERTS, J., filed a concurring opinion in which JONES, C. J., joined. EAGEN, J., concurs in the result. MANDERINO, J., filed a dissenting opinion.

1 . See Section 438(b) of the Liquor Code, Act of April 12, 1951, P. L. 90, as amended, 47 P.S. § 4-438(b), which provides that “[n]o person shall possess or be issued more than one distributor’s or importing distributor’s license,” and Section 436(f), 47 P.S. § 4— 436(f), which requires that application for distributors’ licenses contain or have attached thereto the statement that “applicant is the only person in any manner pecuniarily interested in the business so asked to be licensed, and that no other person shall be in any manner pecuniarily interested therein during the continuance of the license . . . ”

2 . The Order of the Court of Common Pleas of Lancaster County provided in full as follows:

AND NOW, October 19, 1973, for the foregoing reasons, the order of the Pennsylvania Liquor Control Board of August 25, 1972 suspending the licenses of Elemar, Inc. t/a Thrifty Beverage, Garrett Hill Beverage Co., Inc. t/a Thrifty Beverage, and Railsplitter, Inc. t/a Thrifty Beverage, for twenty-one days and thereafter until persons other than the licensee has been divested of all interests in the licensed premises, is sustained, and the appeals in these cases are dismissed.

3 . Appellee P.U.B.L.I.C. is an unincorporated association composed of liquor license holders organized to moniter and “uphold uniform enforcement of the Liquor Code.” (Appellees Complaint, ¶1)-

4 . The appellant licensees, and the appellant General Programming, Inc., petitioned the Commonwealth Court on October 1, 1975, to intervene in the mandamus action. The petition to intervene was granted by that court on November 6, 1975.

5 . The preliminary objections filed by the Board were directed to the standing of the appellees to maintain this action in mandamus. The Commonwealth Court, however, determined that the objections were improper as failing to comply with Pa.R.C.P. 1017(b). Pennsylvania Tavern Association, et al. v. Commonwealth, Pennsylvania Liquor Control Board, 21 Pa.Cmwlth. 101, 343 A.2d 687 (1975). In view of our determination that the order of the Commonwealth Court must be reversed for other reasons, we need not consider the propriety of the Commonwealth Court’s decision finding the preliminary objections procedurally defective.

6 . Jurisdiction in this Court is based on the Act of July 31, 1970, P.L. 673, No. 223, Article II, Section 203, 17 P.S. § 211.203 (Supp. 1975-76).

7 . One of the issues raised by the Commonwealth in its brief amicus curiae was the right of an administrative agency to modify its own order after that order has been reviewed and sustained by a judicial tribunal, without first seeking the approval of that tribunal for such modification. While this presents an interesting question, the appropriate forum for its resolution would in the first instance have been the court which originally heard the matter; the Court of Common Pleas of Lancaster County.