holding that the Liquor Code and regulations promulgated thereunder indicate the Legislature’s clear intention to regulate every aspect of the alcoholic beverage industry
How later courts described this case
- holding that the Liquor Code and regulations promulgated thereunder indicate the Legislature’s clear intention to regulate every aspect of the alcoholic beverage industry
- holding that Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 to 9-902 preempted local tax
- Nix, C.J., concurring; Zappala, J., concurring; Flaherty, J., dissenting joined by Hutchinson, J.
- “[T]he legislature has adopted a scheme of regulation so pervasive over the entire alcoholic beverage industry that it has ‘pre-empted the field’ to the exclusion of all interference from subordinate legislative bodies.”
Written by the judges who cited it.
The opinion
ZAPPALA, Justice,
concurring.
Reluctantly and with trepidation, knowing its logical convolution, I join the Court’s judgment that the Business Privilege Tax of the City of Harrisburg may not be applied to the Appellant Wilsbach Distributors, Inc. because of the comprehensive legislation by which the General Assembly has pre-empted the field of alcoholic beverages. I have serious doubts about the rationale of City of Pittsburgh v. Allegheny Valley Bank of Pittsburgh, 488 Pa. 544 , 412 A.2d 1366 (1980), which blurred the lines between the regulatory/police power and the taxation power to find that legislative pre-emption of the former supported an inference of pre-emption of municipal action in the latter. The Court has, I am afraid, cast the appropriate analysis from its moorings and left cases such as these to be decided by standardless, unstructured judicial fiat. 1 See, Allegheny *228 Valley Bank, 488 Pa. at 557 , 412 A.2d at 1372 (Nix, J., dissenting). Mr. Justice, now Chief Justice, Nix, dissenting, aptly addressed the deficiencies of this “field pre-emption” approach, 488 Pa. at 556 , 412 A.2d at 1372 . Mr. Justice Flaherty presently revives the “historic separation” of these powers in his dissent. Dissenting opinion at 230, n. 1 (Flaherty, J., dissenting). Nevertheless, Allegheny Valley Bank stands as the law of the Commonwealth and the case at bar presents no opportunity to overrule it.
Although I recognize the distinctions between regulating the banking business and the business of selling alcoholic beverages pointed out by the Appellees and Mr. Justice Flaherty, in the framework of the Allegheny Valley Bank “analysis” I am not persuaded that these distinctions make a difference. Because I would find it unjust to permit an isolated industry or two to continue to reap the benefit of Allegheny Valley Bank, I am unable to join the members of the Court who would foreclose that concededly tenuous rationale from these Appellants and others to whom it might apply. As the difficulty arises out of the necessity of discerning legislative intent, if the result in any particular case proves flawed or unworkable, we may trust the General Assembly to correct our erroneous interpretation.
McDERMOTT, J., joins in this concurring opinion.
. Compare Liberty Bell Racing Association v. City of Philadelphia Tax Review Board, 86 Pa.Cmwlth. 83 , 483 A.2d 1063 (1984), where the court enumerated many sections of the Harness Horse Race Meeting Corporations Act in concluding that the legislature had pre-empted the field so as to invalidate Mercantile and General Business Taxes as applied to race tracks, with the present case where the court stated simply, "Suffice it to say that the Banking Code is not the Liquor Code and Allegheny Valley is distinguishable on that ground alone.” 81 Pa.Cmwlth. at 252, 473 A.2d at 1127 (footnote omitted).