Giant Food Stores, LLC v. Penn Township

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Giant Food Stores, LLC, :

Appellant :

:

v. :

: No. 1310 C.D. 2016

Penn Township : Argued: May 3, 2017

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

OPINION BY

JUDGE COVEY FILED: July 18, 2017

Giant Food Stores, LLC (Giant) appeals from the Chester County

Common Pleas Court’s (trial court) June 23, 2016 order granting Penn Township’s

(Township) motion to quash (Motion) Giant’s appeal from the Township’s denial of

Giant’s request for an intermunicipal transfer of a restaurant liquor license (License).

There are two issues before this Court:1 (1) whether the trial court erred by quashing

an appeal brought under the Local Agency Law;2 and, (2) whether the trial court erred

by concluding that Giant’s appeal was premature, and that Giant must first submit an

intermunicipal transfer application to the Pennsylvania Liquor Control Board (PLCB)

without the statutorily-mandated municipal approval, and then appeal from the

1

Giant raised a third issue in its brief: whether the trial court erred in failing to consider that

its decision would insulate municipalities from review of arbitrary and capricious decisions.

However, that issue is subsumed in this Court’s discussion of Giant’s other two issues.

2

2 Pa.C.S. §§ 551-555, 751-754.

PLCB’s denial of the application under the Pennsylvania Liquor Code.3 After

review, we reverse and remand for further proceedings.4

By February 26, 2016 letter, Giant notified the Township that Giant had

entered into an agreement to purchase the License. Giant requested the Township’s

approval to transfer the License from Tredyffrin Township to the Giant store located

in the Township at 849 West Baltimore Street.

To transfer a liquor license into a municipality which has exceeded its

statutory liquor license quota, as occurred in the present case, Section 461(b.3) of the

Liquor Code,5 requires an application to be accompanied by the receiving

municipality’s resolution or ordinance approving the transfer. On April 6, 2016, in

accordance with Section 461(b.3) of the Liquor Code, the Township’s Board of

Supervisors (Board) held a hearing on Giant’s transfer request. Giant presented

testimony detailing its plans to operate a restaurant at the grocery store and sell beer

for on-premises and off-premises consumption. Thereafter, the Board invited public

comment. The only resident in attendance at the hearing commented:

I have been around a while. All I want to do is address the

Township. I sat on that Board for 36 years and we here in

[the] Township kind of have our roots in the Quaker

tradition and beer sales and things of that nature kind of

come hard to the old residents, which I’m one.

And so just a thought – the only thing that comes to mind in

creating this restaurant or package store is the fact that the

parking in the Giant right now is overwhelming because

there is a tremendous amount of business in Giant. I go

there quite regularly and when I go it’s hard to find a

parking place. I’m 86 years old, so trying to get around

sometimes is not exactly what you young guys are able to

do, but to walk from the Giant to my car sometimes – if I

3

Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 – 10-1001.

4

The PLCB and the Malt Beverage Distributors Association filed amicus briefs.

5

Added by Section 9 of the Act of December 20, 2000, P.L. 992, as amended, 47 P.S. § 4-

461(b.3)

2

can find a parking space, and this is the truth, it’s normally

packed. And if you come [on] the holidays, or anything

like that, there is no parking. It’s overwhelming.

It’s not only the Giant that does a good business, but most

of the businesses in that shopping center are attended, so

it’s a good business, and I think that the Giant has a

wonderful business there, and they really don’t need a

package store to create more problems out in the parking

lot.

Reproduced Record (R.R.) at 32a-33a. The Board concluded the hearing and, later

that day, adopted a resolution denying Giant’s transfer request.6

Notwithstanding that Section 461(b.3) of the Liquor Code provides no

right of appeal from a municipality’s denial of a liquor license transfer, on April 22,

2016, Giant appealed from the Board’s decision to the trial court under the Local

Agency Law, which does authorize appeals from local agency adjudications even

where a statute explicitly denies such right.

On May 6, 2016, the Township filed its Motion. On June 23, 2016, the

trial court granted the Motion and quashed Giant’s appeal as premature. Specifically,

the trial court held that Giant must apply to the PLCB to transfer the License without

first obtaining the necessary municipal approval, wait for the PLCB to deny the

application, and then appeal from the PLCB’s decision pursuant to Section 464 of the

Liquor Code,7 which authorizes appeals from PLCB decisions to the trial court.

Giant appealed to this Court.8

6

The Board’s chairman abstained from voting on the application “[s]o as to avoid any

appearance of conflict of interest,” since his family owns a liquor license in the Township. R.R. at

39a.

7

47 P.S. § 4-464.

8

“This Court’s standard of review of the trial court’s order granting a motion to quash

plaintiff’s appeal is limited to whether the trial court committed an error of law, an abuse of

discretion, or a violation of constitutional rights.” Ray v. Brookville Area Sch. Dist., 19 A.3d 29, 31

n.3 (Pa. Cmwlth. 2011).

3

Giant first argues that the trial court erred by granting the Township’s

Motion because Giant’s appeal was filed under the Local Agency Law. We agree.

Section 461(b.3) of the Liquor Code states:

An intermunicipal transfer of a license or issuance of a

license for economic development under subsection

(b.1)(2)(i) must first be approved by the governing body

of the receiving municipality when the total number of

existing restaurant liquor licenses and eating place retail

dispenser licenses in the receiving municipality equal or

exceed one license per three thousand inhabitants. Upon

request for approval of an intermunicipal transfer of a

license . . . by an applicant, at least one public hearing

shall be held by the municipal governing body for the

purpose of receiving comments and recommendations of

interested individuals residing within the municipality

concerning the applicant’s intent to transfer a license

into the municipality . . . . The governing body shall,

within forty-five days of a request for approval, render a

decision by ordinance or resolution to approve or

disapprove the applicant’s request for an intermunicipal

transfer of a license . . . . The municipality may approve

the request. A decision by the governing body of the

municipality to deny the request may not be appealed. A

copy of the approval must be submitted with the license

application. . . . . Failure by the governing body of the

municipality to render a decision within forty-five days of

the applicant’s request for approval shall be deemed an

approval of the application in terms as presented unless the

governing body has notified the applicant in writing of their

election for an extension of time not to exceed sixty days.

Failure by the governing body of the municipality to render

a decision within the extended time period shall be deemed

an approval of the application in terms as presented.

47 P.S. § 4-461(b.3) (bold and italic emphasis added).9

9

Section 461(b.3) of the Liquor Code was amended to its current form by Section 2 of the

Act of November 29, 2006, P.L. 1421. Prior thereto, that section stated:

An intermunicipal transfer of a license or issuance of a license for

economic development under subsection (b.1)(2)(i) must first be

approved by the governing body of the receiving municipality when

4

Although Giant agrees that the Liquor Code expressly prohibits an

appeal from the Township’s denial of its intermunicipal liquor license transfer

application, it contends that it may appeal from that denial under the Local Agency

Law, in accordance with our Supreme Court’s decision in Maritime Management,

Inc. v. Pennsylvania Liquor Control Board, 611 A.2d 202 (Pa. 1992).

Section 751 of the Local Agency Law provides:

(a) General rule.--Except as provided in subsection (b),

this subchapter shall apply to all local agencies

regardless of the fact that a statute expressly provides

that there shall be no appeal from an adjudication of an

agency, or that the adjudication of an agency shall be

final or conclusive, or shall not be subject to review.

(b) Exception.--The provisions of this subchapter shall

apply to any adjudication which under any existing statute

may be appealed to a court of record, but only to the extent

not inconsistent with such statute.

2 Pa.C.S. § 751 (text emphasis added). Section 752 of the Local Agency Law states:

the total number of existing restaurant liquor licenses and eating place

retail dispenser licenses in the receiving municipality exceed one

license per three thousand inhabitants. Upon request for approval of

an intermunicipal transfer of a license . . . by an applicant, at least one

public hearing shall be held by the municipal governing body for the

purpose of receiving comments and recommendations of interested

individuals residing within the municipality concerning the

applicant’s intent to transfer a license into the municipality . . . . The

governing body shall, within forty-five days of a request for approval,

render a decision by ordinance or resolution to approve or disapprove

the applicant’s request for an intermunicipal transfer of a license . . . .

The municipality must approve the request unless it finds that

doing so would adversely affect the welfare, health, peace and

morals of the municipality or its residents. A decision by the

governing body of the municipality to deny the request may be

appealed to the court of common pleas in the county in which the

municipality is located. A copy of the approval must be submitted

with the license application.

Formerly 47 P.S. § 4-461(b.3) (bold and italic emphasis added).

5

Any person aggrieved by an adjudication of a local agency

who has a direct interest in such adjudication shall have the

right to appeal therefrom to the court vested with

jurisdiction of such appeals by or pursuant to Title 42

(relating to judiciary and judicial procedure).

2 Pa.C.S. § 752 (emphasis added).10

In Maritime Management, a steamship company applied for a public

service liquor license. The PLCB refused the application, holding that the granting of

the license would negatively impact the neighboring communities. The applicant

appealed to this Court pursuant to the Administrative Agency Law.11 The township

filed a motion to quash the appeal, citing Section 408(b) of the Liquor Code, which

provides:

For the purpose of considering an application by a

steamship or airline company for a public service liquor

license, the [PLCB] may cause an inspection of the

steamship or vessel or aircraft for which a license is desired.

The [PLCB] may, in its discretion, grant or refuse the

license applied for and there shall be no appeal from its

decision, except that an action of mandamus may be

brought against the [PLCB] in the manner provided by law.

10

This Court explained:

Article V, Section 9 of the Pennsylvania Constitution provides (with

emphasis added):

There shall be a right of appeal in all cases to a court

of record from a court not of record; and there shall

also be a right of appeal from a court of record or from

an administrative agency to a court of record or to an

appellate court, the selection of such court to be as

provided by law; and there shall be such other rights of

appeal as may be provided by law.

Although this provision is not self-executing, the Local Agency Law

was enacted to implement the appeal rights from local agencies set

forth in the State Constitution.

DeLuca v. Hazleton Police Dep’t, 144 A.3d 266, 277 (Pa. Cmwlth. 2016).

11

2 Pa.C.S. §§ 501-508, 701-704.

6

47 P.S. § 4-408(b) (emphasis added). This Court granted the motion to quash. On

appeal, the Supreme Court reversed this Court, relying on Sections 701(a) and 702 of

the Administrative Agency Law.12 Our Supreme Court held:

It is well established that the right of appeal set forth in the

Administrative Agency Law, 2 Pa.C.S. §§ 701(a), 702

exists separately from, and in addition to, any right of

appeal provided in the Liquor Code. Application of Family

Style Rest[.], Inc., . . . 468 A.2d 1088, 1090 ([Pa.] 1983)

(‘[T]he Administrative Agency Law provides a right of

appeal in addition to that provided by the Liquor Code. . .

.’); Application of El Rancho Grande, Inc., . . . 437 A.2d

1150 ([Pa.] 1981).

Mar. Mgmt., Inc., 611 A.2d at 204 (bold and italic emphasis added). The Maritime

Management Court concluded:

[A]s recognized in Family Style Restaurant and El Rancho

Grande, provisions in the Liquor Code disallowing

appeals do not bar appeals taken under the

Administrative Agency Law, 2 Pa.C.S. §§ 701(a), 702.

We find no merit in the contention of the PLCB that Section

4–408(b) [sic] of the Liquor Code . . . was intended by the

legislature to supersede the right of appeal set forth in the

Administrative Agency Law. Although the Liquor Code

was reenacted by the legislature on June 29, 1987, and the

Administrative Agency Law provisions in question, 2

Pa.C.S. §§ 701(a), 702 were enacted prior thereto, on April

28, 1978, there is no basis for belief that the legislature

intended the Liquor Code to, in effect, repeal the

Administrative Agency Law insofar as rights to appeal are

concerned.

When two statutes are in conflict, the one most recently

enacted is ordinarily the one that must prevail. See 1

Pa.C.S. § 1936 (‘Whenever the provisions of two or more

statutes enacted finally by different General Assemblies are

irreconcilable, the statute latest in date of final enactment

12

Sections 701(a) and 702(a) of the Administrative Agency Law are identical to Sections

751(a) and 752 of the Local Agency Law, except for their application to administrative agencies

rather than local agencies.

7

shall prevail.’). Such a conflict is not present in this case,

however, for the two statutes in question are applicable to

entirely separate subject matters. The Liquor Code

addresses appeals that can be brought under the Code,

while the Administrative Agency Law sets forth a

separate, additional, right of appeal. The latter statute

clearly provides that it shall override any other law that

prohibits an appeal, to wit, that an appeal shall be

allowed ‘regardless of the fact that a statute expressly

provides that there shall be no appeal,’ 2 Pa.C.S. §

701(a), supra. Thus, the Administrative Agency Law

expressly contemplates that other statutes will differ

insofar as appellate rights are concerned, and it

expresses explicit legislative intent that it shall prevail.

....

In short, although the Liquor Code did not provide a

basis for the appeal taken by Maritime, the appeal was

nevertheless proper under the statutory rights of appeal

found in the Administrative Agency Law . . . .

Mar. Mgmt, 611 A.2d at 204-05 (bold emphasis added).13

13

Although Maritime Management involved an appeal from the PLCB’s decision denying

the public service liquor license application, and the instant appeal is from the Township’s decision

denying approval of an intermunicipal liquor license transfer, both cases involve Liquor Code

provisions which expressly deny a right to appeal from an agency decision.

Importantly, like the Supreme Court’s holding in Maritime Management, this Court has held

that the Local Agency Law provides a right to appeal from a local agency decision even where an

appeal from the agency decision is not expressly granted or is otherwise prohibited. In DeLuca v.

Hazleton Police Department, 144 A.3d 266 (Pa. Cmwlth. 2016), a towing business was suspended

from a municipality’s towing rotation pursuant to the municipality’s towing policy for alleged

misconduct. This Court held that the towing business was entitled to appeal from the municipality’s

decision under the Local Agency Law despite the towing policy’s provision that there was no

recourse from a suspension other than through civil litigation. In Bray v. McKeesport Housing

Authority, 114 A.3d 442 (Pa. Cmwlth. 2015), this Court, en banc, explained:

[Although relevant] provisions do not expressly set forth a right to

further appeal, such is not determinative in deciding whether judicial

review is available under the Local Agency Law because that ‘law

was enacted to provide a forum for the enforcement of statutory rights

where no procedure otherwise exists.’ Guthrie [v. Wilkinsburg], 478

A.2d [1279,] 1283 [(Pa. 1984)] (internal quotation marks omitted). In

fact, even if appeals of adjudications expressly were not

8

Notwithstanding, the Township contends that Maritime Management is

inapplicable to the instant matter because the Township’s decision denying the

intermunicipal liquor license transfer request is not an adjudication. We disagree.

In SSEN, Inc. v. Borough Council of Eddystone, 810 A.2d 200 (Pa.

Cmwlth. 2002), an en banc panel of this Court explicitly acknowledged that a

township’s decision denying an intermunicipal liquor license transfer under

Section 461(b.3) of the Liquor Code is an adjudication. Therein, this Court

affirmed a trial court’s order sustaining the applicant’s appeal from the borough’s

refusal to approve an intermunicipal liquor license transfer application. Referencing

the nature of the appeal from the borough’s denial, this Court stated: “[W]e are

dealing with an appeal from an adjudication of a local agency[.]” SSEN, Inc., 810

A.2d at 206 (emphasis added); see also Boston Concessions Grp., Inc. v. Logan Twp.

Bd. of Supervisors, 815 A.2d 8 (Pa. Cmwlth. 2002). Although Section 461(b.3) of

the Liquor Code was thereafter amended to remove the right to appeal under the

Liquor Code, that change did not alter the nature of the Township’s decision.14

Specifically, the statutory provision denying the right to appeal from the Township’s

decision does not define what that decision is.15 Thus, as this Court has explicitly

permitted, the Local Agency Law would nevertheless apply and

provide a right to appeal.

Bray, 114 A.3d at 454 (emphasis added).

14

Similarly, the replacement of the statutory provision mandating municipal approval absent

evidence of community harm with the current provision that permits the Township to approve or

deny the license transfer request does not change the nature of the municipal decision itself.

15

Prior to the amendment, a municipality’s decision could be appealed pursuant to the

Liquor Code under former Section 461(b.3) of the Liquor Code. It follows, then, that the matter

being appealed was an adjudication, as recognized in SSEN, Inc. Notably, the Liquor Code still

requires at least one public hearing and a decision by ordinance or resolution.

In an analogous context, “when [a] city council passes a resolution approving a conditional

use application, [the] council is acting in its administrative, not its legislative, capacity, and such a

resolution is an adjudication for purposes of appeal.” City Council of City of Pittsburgh v. City of

Pittsburgh, 625 A.2d 138, 141 n.2 (Pa. Cmwlth. 1993).

9

stated, a municipal denial under Section 461(b.3) of the Liquor Code is an

adjudication.

This conclusion is further supported by Section 101 of the

Administrative Agency Law, 2 Pa.C.S. § 101, the Liquor Code, and case law.

Section 101 of the Administrative Agency Law defines “[a]djudication” as:

Any final order, decree, decision, determination or

ruling by an agency affecting personal or property

rights, privileges, immunities, duties, liabilities or

obligations of any or all of the parties to the proceeding in

which the adjudication is made. The term does not include

any order based upon a proceeding before a court or which

involves the seizure or forfeiture of property, paroles,

pardons or releases from mental institutions.

2 Pa.C.S. § 101 (emphasis added). Section 468(d) of the Liquor Code provides that a

“license shall constitute a privilege between the [PLCB] and the licensee. As

between the licensee and third parties, the license shall constitute property.” 47

P.S. § 4-468(d) (emphasis added).16

The Township contends that Giant is not a licensee and, therefore, there

is no privilege at issue. The Township further asserts that, since license approval by

the PLCB is not automatic, Giant’s interest is merely speculative. Finally, the

Township maintains that “the property interest in this matter is between Giant and

[the current licensee.]” Township’s Br. at 14.

The record reflects that Giant has entered into a contract with the current

license holder to purchase the License.17 Based on Section 468 of the Liquor Code,

16

The dissent ignores this Liquor Code provision when it states, “I do not see how [the]

Township’s decision to deny the intermunicipal transfer in this matter ‘affect[ed]’ a personal or

property right, privilege, immunity, duty, liability, or obligation of Giant.” Dissenting Op. at 2

(quoting 2 Pa. C.S. § 101). Here, Giant entered into a contract to purchase the License. Pursuant

to Section 468 of the Liquor Code, the License is property as between the licensee and Giant.

17

Black’s Law Dictionary defines “contract” as “[a]n agreement between two or more

parties creating obligations that are enforceable or otherwise recognizable at law[.]” Black’s Law

Dictionary 365 (9th ed. 2009) (emphasis added).

10

the License is property as between Giant and the current licensee. The Township’s

denial, therefore, “affect[s] . . . property rights” and Giant’s “duties, liabilities [and]

obligations” because it affects the contract for Giant’s purchase of the License from

the licensee. 2 Pa.C.S. § 101 (emphasis added).18

The Township’s contention that Giant’s interest is purely speculative is

also unconvincing. At the time SSEN, Inc. was decided, PLCB approval was

similarly “not automatic.” Rather, in addition to the municipality’s right to deny

approval where a license would be harmful to the welfare, health, peace and morals

of the municipality or its residents, the PLCB could deny approval for any reason set

forth in the Liquor Code.19 The SSEN, Inc. Court still characterized the

municipality’s decision as an adjudication. 20

18

The dissent claims that “Giant acquired only that which the law recognizes – i.e., a

restaurant liquor license in Tredyffrin Township. Penn Township’s decision denying the request to

transfer did not in any way adversely affect that property right.” Dissenting Op. at 5. Although the

dissent focuses on the License’s current location in Tredyffrin Township, the PLCB approves and

issues liquor licenses by county which licenses may be transferred within a municipality with

PLCB approval, and may also be transferred between the county’s municipalities with

municipal approval. See 47 P.S. § 4-468; 47 P.S. § 4-461(b.3). Where municipal approval is

denied, the property right is affected, despite that the license may theoretically be used elsewhere

and, thus, is not rendered entirely valueless. Prior to the Township’s decision, the License had the

potential to be transferred anywhere within the county. After the Township’s decision, the area for

its possible use has been diminished. Hence, the License is affected.

19

The dissent claims that the uncertainty of the necessary municipal approval undermines

any legitimate claim to the License and, accordingly, demonstrates that no property interest exists.

However, even the necessary approvals in SSEN would seem to similarly relegate the SSEN

applicant to the status of having “‘an abstract need or desire for’ the transfer of the [License.]”

Dissenting Op. at 4 (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)).

Notwithstanding, this Court concluded that the municipality’s decision was an adjudication.

20

The dissent charges that “[b]y relying on and applying SSEN, decided under the pre-

amendment version of Section 461(b.3) [of the Liquor Code], the majority tacitly, and . . .

improperly, dismisses the General Assembly’s subsequent legislative action as a nonevent.”

Dissenting Op. at 3. The dissent is incorrect. Herein, the majority specifically examined amended

Section 461(b.3) of the Liquor Code, and reviewed SSEN to determine the applicability of the Local

Agency Law which expressly permits appeals thereunder even where another statute explicitly

prohibits appeals.

11

It is well-established that “[u]nder Pennsylvania law, ‘[w]hen an

agency’s decision or refusal to act leaves a complainant with no other forum in which

to assert his or her rights, privileges or immunities, the agency’s act is an

adjudication.’” Bray v. McKeesport Hous. Auth., 114 A.3d 442, 454 (Pa. Cmwlth.

2015) (quoting Montessori Reg’l Charter Sch. v. Millcreek Twp. Sch. Dist., 55 A.3d

196, 201 (Pa. Cmwlth. 2012)). Here, the Township’s decision left Giant with “no

other forum in which to assert [its] rights, privileges or immunities[,]” because it

could not challenge the Township’s denial. Id. Although Giant could apply to the

PLCB for the License transfer, without the statutorily-mandated prerequisite

municipal approval, Giant’s application would be fatally flawed, and the PLCB

would be statutorily-mandated to reject it. Further, even if the PLCB held a hearing

on the application under Section 464 of the Liquor Code, it has no authority to review

the Township’s decision.21 Thus, absent the right to appeal under the Local Agency

Law, the Township’s decision would be insulated from any review. Such unfettered

discretion would permit a municipality to deny an intermunicipal transfer of a liquor

license for any reason, even an unlawful one. For example, there would be no right

to review a municipality’s decision if the municipality routinely denied such license

applications to women on the basis of their sex, or to applicants based on their race,

national origin, religion or other protected classification.22 The General Assembly

21

“Section 464 [of the Liquor Code], by its own terms, does not apply to local agency

decisions, and was not amended to include appeals from local agency decisions within its purview.”

SSEN, Inc., 810 A.2d at 206.

22

The dissent states that the amendment to Section 461(b.3) of the Liquor Code represents

the General Assembly’s “clear inten[tion] to reserve to local municipalities and their elected

officials the exclusive right to either accept or reject intermunicipal transfers of liquor licenses

above their allotted quota as they see fit, so long as the statutory process is followed.” Dissenting

Op. at 3. The majority agrees that the statute reflects the General Assembly’s intention that local

government should decide this local issue. However, the General Assembly also promulgated the

Local Agency Law which provides for review even where a statute denies a right to appeal. Thus,

the General Assembly clearly intended that local agency adjudications may not remain isolated and

12

could not have intended to permit a municipality to exercise such unfettered

discretion, and, thus, provided a check on the municipality’s authority through the

Local Agency Law.23 For all of the above reasons, we conclude that Giant was

entitled to pursue an appeal from the Township’s decision under the Local Agency

Law.24

Giant next contends that the trial court erred when it concluded that

Giant’s appeal was premature, and that Giant must first submit an intermunicipal

liquor license transfer application to the PLCB without the statutorily-mandated

insulated from any review, especially where such decisions may be improperly impacted by abuses

of discretion or motivated by unlawful discrimination.

We are aware that a discriminatory municipal decision may be attacked collaterally in an

action under Section 1983 of Title 42 of the United States Code. We cannot presume that the

General Assembly intended that to be the only manner to ensure a municipality’s compliance with

the law when rendering a decision on an intermunicipal liquor license transfer.

23

The dissent maintains that the amendment of Section 461(b.3) of the Liquor Code

“removed any language that purported to create any right to a favorable decision and removed all

standards against which a court could review an adverse decision for legality.” Dissenting Op. at 4.

Based on that premise, the dissent concludes that such municipal decisions are no longer

adjudications. However, such a conclusion is inconsistent with our Supreme Court’s decision in

Maritime Management. There, the Court specifically allowed an appeal under the Administrative

Agency Law from a PLCB denial of a public service liquor license application, despite the relevant

Liquor Code section permitting the PLCB, without specified standards, to “‘in its discretion, grant

or refuse the license applied for’” and expressly prohibiting an appeal from that decision. Id. at 203

(quoting 47 P.S. § 4-408(b)). The dissent does not explain how, in any relevant manner, the

PLCB’s decision in Maritime Management differs from the Township’s decision herein. In fact, the

dissent does not even acknowledge our Supreme Court’s decision in Maritime Management,

wherein the Court treated the decision as an adjudication.

24

This Opinion is consistent with our Supreme Court’s recent decision in Pittman v.

Pennsylvania Board of Probation & Parole, 159 A.3d 466 (Pa. 2017), wherein, the Court expressed

its strong skepticism of statutory interpretation which denies appellate review of an administrative

body’s decision, even where the administrative body exercises the “broadest of discretion[.]” Id. at

474. The Pennsylvania Board of Probation & Parole (PBPP) argued that “the [PBPP] has broad

discretion in deciding whether to grant a [convicted parole violator] credit; there are no standards by

which an appellate court can evaluate the [PBPP’s] exercise of discretion; and the [PBPP] is not

required to provide a contemporaneous statement of reasons explaining its decision.” Id. at 473.

Notwithstanding the lack of such standards, our Supreme Court held that a parolee is entitled to an

explanation from the PBPP for its decision and that “the General Assembly did not intend to allow

the [PBPP’s] decisions . . . to evade all appellate review . . . .” Id. at 474.

13

municipal approval, and then appeal from the PLCB’s denial of the application under

Section 464 of the Liquor Code.25 We agree.

25

Section 464 of the Liquor Code provides for hearings involving PLCB licensing

decisions and appeals from PLCB actions. Section 464 of the Liquor Code states:

The [PLCB] may of its own motion, and shall upon the written

request of any applicant for club, hotel or restaurant liquor license . . .

whose application for such license, renewal or transfer, or the renewal

of an amusement permit, has been refused, fix a time and place for

hearing of such application for license or for renewal or transfer

thereof . . . notice of which hearing shall be mailed to the applicant at

the address given in his application. Such hearing shall be before a

hearing examiner designated by the [PLCB]. At such hearing, the

[PLCB] shall present its reasons for its refusal or withholding of

license, renewal or transfer thereof . . . . The applicant may appear in

person or by counsel, may cross-examine the witnesses for the

[PLCB] and may present evidence which shall likewise be subject to

cross-examination by the [PLCB]. Such hearing shall be

stenographically recorded. The hearing examiner shall thereafter

report, with the examiner’s recommendation, to the [PLCB] in each

case. The [PLCB] shall thereupon grant or refuse the license, renewal

or transfer thereof or the renewal of an amusement permit. . . . If the

[PLCB] shall refuse such license, renewal or transfer or the renewal

of an amusement permit, following such hearing, notice in writing of

such refusal shall be mailed to the applicant at the address given in his

application. . . . Any applicant who has appeared at any hearing, as

above provided, who is aggrieved by the refusal of the [PLCB] to

issue any such license or to renew or transfer any such license or to

issue or renew any amusement permit may appeal . . . within twenty

days from date of refusal or grant, to the court of common pleas of the

county in which the premises or permit applied for is located. If the

application is for . . . the intermunicipal transfer of a license, the

governing body of the municipality receiving the new license or the

transferred license may file an appeal of the [PLCB] decision

granting the license, within twenty days of the date of the

[PLCB]’s decision, to the court of common pleas of the county in

which the proposed premises is located. Such appeal shall be upon

petition of the aggrieved party, who shall serve a copy thereof upon

the [PLCB], whereupon a hearing shall be held upon the petition by

the court upon ten days’ notice to the [PLCB]. . . . The court shall

hear the application de novo on questions of fact, administrative

discretion and such other matters as are involved, at such time as it

shall fix, of which notice shall be given to the [PLCB]. The court

14

Section 461(b.3) of the Liquor Code prohibits an appeal under the

Liquor Code from a municipality’s decision denying approval of an intermunicipal

liquor license transfer. If Giant files an application with the PLCB without the

required municipal approval, its application will be rejected as failing to comply with

the Liquor Code. Any appeal Giant files under Section 464 of the Liquor Code from

the PLCB’s denial will address only the propriety of the PLCB’s action – i.e.,

whether the PLCB properly refused the application where municipal approval was

not attached (and, as such, the PLCB action will likely be upheld). The PLCB’s

decision will not address the merits of the Township’s refusal.

Thus, Giant need not and, in fact, must not wait for the PLCB to

ministerially refuse its license application to appeal from the Township’s decision. In

In re Application for Liquor License of Thomas, 829 A.2d 410 (Pa. Cmwlth. 2003),

the applicant applied for an intermunicipal transfer of a liquor license. In accordance

with the former Section 461(b.3) of the Liquor Code, the receiving township held a

hearing and denied the request. A hearing was held before the PLCB which

remanded the matter to the township for another public hearing. Thereafter, the

township passed a resolution finding that the proposed transfer would have an

adverse impact on the township and denied the application. The applicant did not

appeal from the township’s decision denying the application but, instead, appealed

from the PLCB’s denial to the trial court. The trial court granted the township’s

petition to intervene and, thereafter, granted the township’s motion to quash. The

trial court determined that, pursuant to former Section 461(b.3) of the Liquor Code,

shall either sustain or over-rule the action of the [PLCB] and either

order or deny the issuance of a new license or the renewal or transfer

of the license or the renewal of an amusement permit to the applicant.

47 P.S. § 4-464 (bold and italic emphasis added).

15

the applicant’s appeal was required to be from the township’s decision and not the

PLCB’s order.

This Court concluded:

The Liquor Code does not provide an applicant for an

intermunicipal transfer with a choice of routes for appeal

when the governing body of the receiving municipality

denies the transfer. Section 461(b.3) [of the Liquor Code]

provides that the appeal from a decision of the municipality

denying the transfer is directly to the trial court. Moreover,

Section 461(b.3) [of the Liquor Code] provides that a ‘copy

of the [municipality’s] approval must be submitted’ to the

[P]LCB with the application for transfer. The plain reading

of this section is that an applicant for an intermunicipal

transfer must either initially obtain approval from the

receiving municipality or appeal the denial of the

application directly to the trial court.

Section 464 of the Liquor Code . . . does provide for an

appeal by the receiving municipality from a decision of the

[P]LCB to the trial court for a de novo hearing when the

[P]LCB grants an intermunicipal transfer of a liquor license.

Section 464 [of the Liquor Code] does not, however,

similarly provide for an appeal to the trial court from an

aggrieved applicant. In fact, this section is silent as to an

aggrieved applicant for an intermunicipal transfer. Thus,

reading Sections 461(b.3) and 464 [of the Liquor Code]

together, the legislative intent is clear that an aggrieved

party seeking an intermunicipal transfer must appeal

the receiving municipality’s denial of the transfer

directly to the trial court and not wait until the [P]LCB

ministerially denies the transfer for lack of municipal

approval.

In re Thomas, 829 A.2d at 414 (bold emphasis added).

Section 461(b.3) of the Liquor Code explicitly prohibits an appeal from

a municipality’s decision denying an intermunicipal liquor license transfer. Further,

Section 464 of the Liquor Code does not afford an aggrieved applicant the right to

appeal from the Township’s decision denying the intermunicipal liquor license

16

transfer.26 However, since the Township’s decision is an adjudication, and Giant

“must either initially obtain approval from the [Township] or appeal [from] the

denial” under Section 752 of the Local Agency Law, Giant here properly appealed

from the Township’s decision to the trial court. In re Thomas, 829 A.2d at 414.

For all of the above reasons, the trial court’s order is reversed, and the

matter is remanded to the trial court for further proceedings in accordance with the

Local Agency Law to address the merits of the Township’s denial.

___________________________

ANNE E. COVEY, Judge

26

Certainly, as explicitly recognized in In re Thomas and in SSEN, Inc., there is no review

of the municipality’s decision under Section 464 of the Liquor Code.

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Giant Food Stores, LLC, :

Appellant :

:

v. :

: No. 1310 C.D. 2016

Penn Township :

ORDER

AND NOW, this 18th day of July, 2017, the Chester County Common

Pleas Court’s June 23, 2016 order is reversed, and the matter is remanded to the trial

court for further proceedings in accordance with this opinion.

Jurisdiction is relinquished.

___________________________

ANNE E. COVEY, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Giant Food Stores, LLC, :

Appellant :

:

v. : No. 1310 C.D. 2016

: Argued: May 3, 2017

Penn Township :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

DISSENTING OPINION

BY JUDGE BROBSON FILED: July 18, 2017

I respectfully dissent. Under the current iteration of the Liquor Code

(Code),1 there is no express right to a favorable determination on an application to

accept an intermunicipal transfer of a restaurant liquor license. Instead, the only

rights afforded under the relevant section of the Code are the rights to a public

hearing on the request and a decision by the municipality within forty-five days of

the request. See Section 461(b.3) of the Code, as amended, 47 P.S. § 4-461(b.3).

There is no dispute that Giant Food Stores, LLC (Giant) received both here.

1

Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 to 10-1001.

In this appeal, Giant demands more. Giant, contending that a denial

under Section 461(b.3) of the Code is an adjudication, argues that it is entitled to

appeal the adverse decision to a court of common pleas under the Local Agency

Law.2 For these purposes, “adjudication” is defined, in relevant part, as follows:

Any final order, decree, decision, determination or

ruling by an agency affecting personal or property rights,

privileges, immunities, duties, liabilities or obligations of

any or all of the parties to the proceeding in which the

adjudication is made.

2 Pa. C.S. § 101. Unlike the majority, I do not see how Penn Township’s decision

to deny the intermunicipal transfer in this matter “affect[ed]” a personal or

property right, privilege, immunity, duty, liability, or obligation of Giant.

After this Court’s decision in SSEN, Inc. v. Borough Council of the

Borough of Eddystone, 810 A.2d 200 (Pa. Cmwlth. 2002) (en banc), on which the

majority relies, the General Assembly amended Section 461(b.3) of the Code in

two material respects.3 First, it deleted language that required municipalities to

approve transfer requests unless they find “that doing so would adversely affect the

welfare, health, peace and morals of the municipality or its residents.” 4 In other

words, the General Assembly removed the provision that afforded the applicant a

right to an approval absent a finding of statutory grounds for disapproval. Second,

it deleted language that expressly authorized appeals to the court of common pleas

from a denial.5 By making these changes, the General Assembly clearly intended

2

2 Pa. C.S. §§ 551-55, 571-54.

3

Section 2 of the Act of November 29, 2006, P.L. 1421.

4

Id.

5

See id.

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to reserve to local municipalities and their elected officials the exclusive right to

either accept or reject intermunicipal transfers of liquor licenses above their

allotted quota as they see fit, so long as the statutory process is followed. In doing

so, the General Assembly clearly made a policy judgment that the decision to

create additional outlets (i.e., above what is statutorily authorized) for the purchase

and sale of alcohol within a particular municipality’s boundaries should lie with

the local elected officials accountable directly and solely to the municipality’s

residents. As noted above, Giant received everything to which it was entitled

under Section 461(b.3) of the Code. It received a public hearing and a timely

decision. Giant is not entitled to a favorable decision. By relying on and applying

SSEN, decided under the pre-amendment version of Section 461(b.3), the majority

tacitly, and I suggest improperly, dismisses the General Assembly’s subsequent

legislative action as a nonevent.

Under the prior version of the Code, the applicant in SSEN was

entitled to much more than Giant is entitled to here. The applicant in SSEN was

not only entitled to a public hearing and a timely decision, it was entitled to an

“approv[al] . . . unless” the municipality found a permitted ground for disapproval

and an express right to challenge that determination in the courts of common pleas.

SSEN, 810 A.2d at 204. Faced with these “rights,” entirely absent from the current

language in the Code, this Court had to determine the appropriate standard of

review for the courts of common pleas. Ultimately, the Court turned to the Local

Agency Law for the answer, concluding that the denial in SSEN was an

adjudication.

Unlike the majority, however, I reason that the Court’s conclusion in

SSEN was based not on the express right to appeal found in the statute at that time,

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but on the express right to a favorable decision unless the municipality found a

permitted ground for disapproval. This qualified right, grounded in the source

statute, was one that this Court was bound to protect zealously, as a check and

balance on executive branch action. See Bray v. McKeesport Hous. Auth.,

114 A.3d 442 (Pa. Cmwlth. 2015) (en banc) (recognizing that applicants have a

property interest in ensuring that application for relief is properly decided under

standards set forth in governing law). When the General Assembly amended

Section 461(b.3) of the Code, however, it removed all language that purported to

create any right to a favorable decision and removed all standards against which a

court could review an adverse decision for legality. In so doing, the General

Assembly removed the very foundation of the Court’s conclusion in SSEN that

denials under Section 461(b.3) of the Code are adjudications subject to judicial

review under the Local Agency Law.

Giant’s gambit to acquire the Tredyffrin license, speculating that it

would receive approval of the transfer to Penn Township, does not create a

property right protected by the Local Agency Law. Describing the nature of

property interests protected by due process, in Board of Regents of State Colleges

v. Roth, 408 U.S. 564 (1972), the United States Supreme Court opined: “To have a

property interest in a benefit, a person clearly must have more than an abstract

need or desire for it. He must have more than a unilateral expectation of it. He

must, instead, have a legitimate claim of entitlement to it.” Board of Regents,

408 U.S. at 577. In this case, at best, Giant had “an abstract need or desire for” the

transfer of the Tredyffrin license to Penn Township or “a unilateral expectation of

it.” It did not, however, have “a legitimate claim of entitlement to it” under the

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Code. Accordingly, Giant does not have a property interest in approval of the

transfer.

As a matter of law, Giant acquired only that which the law

recognizes—i.e., a restaurant liquor license in Tredyffrin Township. Penn

Township’s decision denying the request to transfer did not in any way adversely

affect that property right. See Guthrie v. Borough of Wilkinsburg, 478 A.2d 1279,

1283 (Pa. 1984) (holding that employer warning letters were not adjudications

appealable under Local Agency Law because, inter alia, “there was no concrete

alteration of legal status”). Because the determination to deny Giant a transfer of

the license into Penn Township did not adversely affect Giant’s restaurant liquor

license in Tredyffrin Township, the adverse determination is not an adjudication

subject to judicial review under the Local Agency Law.

Accordingly, I would affirm the order of the Court of Common Pleas

of Chester County, dated June 23, 2016, quashing Giant’s appeal.

P. KEVIN BROBSON, Judge

President Judge Leavitt and Judge Hearthway join in this dissenting opinion.

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