67 Pa. Commw. 361 | Pa. Commw. Ct. | 1982
Opinion by
On November 13, 1980 a hearing was held before a hearing examiner of the Pennsylvania Liquor Control Board (Board) on the application of The Family
On December 23, 1980, the Board approved the issuance of a license under the resort area exception noted in the Liquor Code, Section 461(b) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-461 (b), and on January 22, 1981, the Association and Frank Roda, averredly the owner of the Italian Villa, appealed. In answering the appeal, the applicant challenged the standing of both parties to maintain an appeal, averring that the Pentidattillo Corporation, rather than Roda, was the owner of the Italian Villa and was also the licensee named in its liquor license. The appellants, in their brief submitted below,
Pentidattillo Corporation advances several theories under the Liquor Code, the Administrative Agency Law and the Pennsylvania Constitution as to why it has standing in this matter. We need not address these arguments, however, for the controlling law in this area is clear. It is well-settled that amendment
As to the standing of the Association, the court below relied on our holding in In re: Application of El Rancho Grande, Inc., 51 Pa. Commonwealth Ct. 410, 414 A.2d 751 (1980), and determined that the Association also lacked standing. El Rancho Grande, however, involved an appeal from the granting of a new liquor license by individual competitors in which The Tioga-Potter County Tavern Owners Association was permitted to intervene in that action for the
Stated another way, i.e., in terms of federal cases, . . . this guideline determines whether “the interest [the taxpayer] seeks to protect*366 is ‘arguably within the zone of interests sought to be protected or regulated by the statute or constitutional guarantee in question.’ ”
Id. at 444 n. 6, 409 A.2d at 852 n. 6 (quoting William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 198 n. 23, 346 A.2d 269, 284 n. 23 (1975) (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970))).
The Supreme Court ruled in El Rancho Grande, however, that the Association lacked standing because its position in that case was more that of an amicus curiae than that of an injured party. It observed that the Association had not appeared before the Board to contest the applicant’s request for a license nor had it advanced any issues before the court of common pleas which uniquely affected the Association, itself. While lacking standing to appear as a party to the appeal, therefore, it was permitted to retain its amicus curiae status on remand. And, because it appeared from the record in that case that the court below had not addressed the matter on its merits, we, by per curiam order, remanded the case to that court for consideration on the merits.
The Association which is presently before us consists . of tavern owners who collectively assert that they are competitors of the applicant and will sustain economic injury if a restaurant liquor license is granted to the applicant in an area in which they allege no demonstrated need for one exists. We be-believe that it has, therefore, met the test of standing by asserting that its members will be perceptibly harmed by the challenged action of the Board and that standing cannot be denied to persons who assert an injury in fact simply because many others are also injured. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973). Furthermore, the Association, represented by one of its
Order
And Now, this 9th day of July, 1982, the order of the Court of Common Pleas of Lancaster County is affirmed insofar as it dismisses the petition on appeal of Frank Roda in the above-captioned matter and is vacated insofar as it dismisses the petition on appeal of the Lancaster County Tavern Owners Association.
It is further ordered that the petition on appeal of the Lancaster County Tavern Owners in the above-captioned ease be remanded to the Court of Common Pleas of Lancaster County for consideration by it of the merits of the appeal to that court from the determination of the Pennsylvania Liquor Control Board granting the liquor license application of The Family Style Restaurant, Inc.
We reluctantly apply our Supreme Court’s holding in El Rancho Grande, inasmuch as we do not believe that the Administrative Agency Law (Law) correctly read, provides a basis for affording standing in restaurant liquor license cases.
As noted by the Supreme Court in El Rancho Grande, Section 701(b) of the Law, 2 Pa. C. S. §701 (b) provides in pertinent part:
Exceptions. — None of the provisions of this subchapter shall apply to:
(2) Any appeal from a Commonwealth agency which may be taken initially to the court of common pleas under 42 Pa. C. S. §933 (relating to appeals from government agencies).
42 Pa. C. S. §933(e)(1) provides in pertinent part:
[E]ach court of common pleas shall have jurisdiction of appeals from final orders of government agencies in the following eases:
(1) Appeals from Commonwealth agencies in the following eases.
(v) Determination of the Pennsylvania Liquor Control Board appealable under the act, of April 12, 1951 (P.L. 90,
No. 21), known as the “Liquor Code,” except matters appealable under sections 433 [public service licenses], 444 [malt or brewed beverages manufactured outside this Commonwealth] or 710 [distillery certificate broker permit] of the act.
It would appear, therefore, that, under the language of Section 701 of the Law, 2 Pa. C. S. §701, Section 702 of the Law does not apply in appeals taken to the court of common pleas in restaurant liquor license cases. We feel constrained by the Supreme Court’s order and opinion in El Rancho Grande, however, to dispose of this case similarly.