70 Pa. Commw. 501 | Pa. Commw. Ct. | 1982
Opinion bt
Before us in this matter is the motion of petitioner 1412 Spruce, Inc. for summary judgment.
The petitioner is a corporation whose principal place of business was and whose corporate registered address is 1412 'Spruce Street, Philadelphia, Pennsylvania. Upon its cessation of business it forwarded its restaurant liquor license to respondent Pennsylvania Liquor Control Board (PLCB) for safekeeping in accordance with standard PLCB procedures. Subsequently, the holder of an outstanding money judgment against the petitioner filed a writ of execution directing the Sheriff of Dauphin County to attach and publicly sell the petitioner’s liquor license, and the PLCB, after being served ¡with a copy of this writ as garnishee, gave the license to the Sheriff. At a public Sheriff’s sale the license was sold for $95.14, and the PLCB then began the process of transferring or issuing the petitioner’s license to the successful bidder. Meanwhile, the petitioner, having learned of the “sale,” requested here a preliminary injunction to en
Summary judgment will he granted where there is no genuine issue of material fact remaining and where the movant is entitled to judgment as a matter of law. Burd v. Department of Transportation, 66 Pa. Commonwealth Ct. 129, 443 A.2d 1197 (1982). Both parties here agree that no genuine issue of fact remains, and that the legal question is: Does a restaurant liquor license, while in safekeeping with .the PLCB, constitute “personal property” within the meaning of Pa. R.C.P. No. 3107
The petitioner argues that Section 468(b.l) of the Liquor Code,
The PLCB, however, argues that a liquor license has a status dependent upon the relationship of the parties involved. It contends that, between the Com
Similarly, we are unpersuaded by Jaybee Loan Co., Inc. v. United States of America, No. 78-3847 (May 9, 1980). Relying upon Lieberman, Feitz, and interpretations of the Uniform Commercial Code in other jurisdictions, and without mentioning Section 468(b.1) of the Liquor Code, the federal magistrate for the Eastern District Court of Pennsylvania there held that “neither Pennsylvania decisional law nor Pennsylva
Noting the absence of any definitive legislative intent underlying Section 468 (b.l) of the Liquor Code, we must agree with the petitioner that we may not disregard the clear and unambiguous language of this section under the pretext of pursuing its alleged spirit. We believe, therefore, that the license involved herein continues as a personal privilege and does not constitute a property right subject to the execution process. Clearly, the position which the PLCB advocates, be it desirable or not, is a matter which is more properly suited .to be addressed, and corrected if necessary, by the legislature.
We will, therefore, grant the petitioner’s motion for summary judgment.
Order
And Now, this 22nd day of December, 1982, the petitioner’s motion for summary judgment in the above-captioned matter is hereby granted and .the proceedings relating to the sale of said liquor license No. R-11378 by the Sheriff of Dauphin County are declared to be null and void ab initio.
The prothonotary of this Court is directed .to mail a copy of this order to the Sheriff of Dauphin County.
Rule 3107 provides that:
Real or personal property of the defendant may be levied upon or attached in any order or simultaneously, as the plaintiff may direct.
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-468(b.1).