39 Pa. Commw. 597 | Pa. Commw. Ct. | 1979
Opinion by
After a hearing, the Pennsylvania Liquor Control Board (Board) found that Brock’s Cafe, Inc. (Li
The Licensee appealed the Board’s order to the Court of Common Pleas of Philadelphia County which found, after a hearing, that (1) the Board improperly considered a citation which was thirteen (13) years old in assessing its penalty
Before a Court may modify or set aside Board actions, it must make findings of fact on the material issues different from those made by the Board. Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A.2d 81 (1973). A finding that the Board abused its discretion by considering a prior citation in fixing the penalty is not a material additional finding of fact upon which a penalty modification may be based. In re Suspension of Crangi Liquor License, 25 Pa. Commonwealth Ct. 322, 361 A.2d 488 (1976).
Neither is the finding by the lower court that the insanitary conditions were corrected at the time of the Board’s hearing material to the issue of whether those conditions existed at the time alleged in the citation. The only effect of the correction of those conditions would be to warrant the restoration of the license at the expiration of the five (5) day suspension.
Since the findings by the lower court on the material issues were not different from those made by the Board, we must reverse.
And Now, this 9th day of January, 1979, the order of the First Judicial District of Pennsylvania, Trial Division, dated April 4, 1977, is reversed and the order of Pennsylvania Liquor Control Board, dated December 30, 1976, is reinstated.
The other two citations occurred in 1976.