TAYLOR v. Weinstein

217 A.2d 817, 207 Pa. Super. 251, 1966 Pa. Super. LEXIS 1107

• Court: Superior Court of Pennsylvania
• Decided: March 24, 1966
• Docket: Appeal, 609
• Status: Published

Opinions

Opinion by

Wright, J.,

We are here concerned with an appeal from an order of the Court of Quarter Sessions of Philadelphia County, entered June 10, 1965, dismissing an appeal from the action’ of the Pennsylvania Liquor Control Board in belatedly approving the transfer of a liquor license.

On September 25, 1963, Jack Weinstein filed with the Board an application for approval of the transfer of a restaurant liquor license to premises at 2847 North Twenty-Sixth Street in the City of Philadelphia. Appellants are residents of the neighborhood at Twenty-Sixth and Cambria Streets, and represent local civic and religious organizations in that area. They have been vigorously protesting the proposed transfer. A hearing took place before an Examiner of the Board on January 15, 1964. On the basis of the testimony presented at that hearing, the Board concluded that the protests should be sustained. On February 14, 1964, an order was entered that the transfer “be and it is hereby refused”.

On March 4, 1964, at No. 1407 March Term 1964, the applicant for the transfer appealed to the Court of Quarter Sessions of Philadelphia County. On December 21, 1964, counsel for the applicant filed the following request: “Will you kindly withdraw the appeal of petitioner in the above-captioned matter, and mark the case ended and discontinued”. On December 31, 1964, Judge Weinrott entered an order to that effect.

On a subsequent date, not disclosed by the record, a petition for reconsideration was presented to the Board: Appellants received no notice of the filing of this petition. Without taking additional testimony or holding further hearings, the Board entered an order on February 9, 1965, approving the transfer. If there were other contacts involving the' Board and the applicant, neither has chosen to make the same a matter of record.

On March 23, 1965, the protestants appealed to the court of quarter sessions. A hearing was scheduled for June 10, 1965, at which time counsel for the applicant moved to strike the appeal as untimely. This motion was ■ overruled and the appeal was allowed nunc pro tunc. The appeal was then dismissed on the ground that there was no abuse of discretion on the part of the Board. As previously indicated, the protestants have now appealed to this court. We find it unnecessary to pass upon all of the contentions which appellants have advanced. The order of the court below must be reversed for two reasons.

(1) The failure to give-notice to appellants of the petition for reconsideration was a fatal defect. Administrative discretion must not be permitted to become administrative tyranny: Hotchkiss Liquor License Case, 169 Pa. Superior Ct. 506, 83 A. 2d 398. Administrative bodies are bound by the due process provisions of constitutional law and by fundamental principles of fairness: West Penn Power Co. v. Pa. P. U. C., 174 Pa. Superior Ct. 123, 100 A. 2d 110. In the words of President Judge Rhodes in the case cited: “Again, under rudimentary principles of due process and fair' play the Commission cannot subsequently reverse a previous order without giving notice . . . and an opportunity to be heard”. The fact that appellants were permitted to appeal to the court of quarter sessions nunc pro tunc did not remedy the lack of due. process before the Board.

(2) The taking of the appeal to the court of quarter sessions terminated the Board’s power to grant reconsideration. It is settled law that, after an appeal has been taken, the tribunal below loses jurisdiction to proceed with the case in the absence of a statute providing otherwise. As stated in Sowers Estate, 383 Pa. 566, 119 A. 2d 60, quoting from an earlier case: “At common law a court of first instance is without jurisdiction to proceed with a cause after the record thereof has been removed to an appellate court. This rule still applies in the absence of a statute providing otherwise”.

We are not in accord with the suggestion that decisions under the Workmen’s Compensation Act are here controlling. Section 426 of that statute, 77 P.S. 871, expressly provides, that, where an appeal has been taken from any action of the Board, a rehearing may be granted by the Board at any time, not exceeding eighteen months, before the court takes final action on the appeal. There is no similar provision in the Liq-. uor Code. Even under Section 426 of the Workmen’s Compensation Act, the application for rehearing must be filed while the appeal to the court is pending: Thomas v. J. J. Skelley, Inc., 204 Pa. Superior Ct. 166, 203 A. 2d 339.

In conclusion, the instant case was “ended and discontinued” by action of counsel for the applicant, approved . by the court of quarter sessions. This .was clearly a final determination of the matter. The subsequent abortive attempt by the Board, almost a year after its original refusal and without notice, to change its position and approve the transfer was a complete nullity. We should not hesitate to declare it so. The Liquor Code is to be liberally construed in the interest of the public welfare and not in aid of an individual seeking the transfer of a liquor license for his private gain: Weiss Liquor License Case, 187 Pa. Superior Ct. 89, 142 A. 2d 385.

Order reversed.

Hoffman, J., took no part in the consideration or decision of this case.