IN THE COURT OF COMMON PLEAS OF LANCASTER

CIVIL ACTION LAW

GIANT FOOD STORES, LLC
Appellant
v.
LANCASTER TOWNSHIP
Appellee

:
:
:
:
:
:
:

ENTERED AND FILED

PROTHONOTARYS OFFICE
LANCASTER, PA
***Electronically Filed*****
Jan 17 2017 01:51PM
COUNTY, PENNSYLVANIA
Audrey Conrad

No. CI-16-05956

OPINION
AND NOW, upon the appeal of Giant Food Stores, LLC (Giant) from the decision of
Lancaster Township denying Giants request for the inter-municipal transfer of a liquor license,
and following briefs submitted by both parties, as well as an amicus brief filed by the Malt
Beverage Distributors Association (MBDA), this matter is ripe for review.
I.

BACKGROUND
Giant filed this appeal from the denial by Lancaster Township of Giants request for an

intermunicipal transfer of a liquor license. Lancaster Township held a hearing regarding Giants
request on April 11, 2016. At the hearing, counsel for Giant made a presentation regarding
Giants plans for the license, after which both the Lancaster Board of Supervisors and
individuals attending the hearing were permitted to ask questions. Four of those individuals were
not residents of Lancaster Township. On June 1, 2016, the Lancaster Board of Supervisors voted
to deny Giants request. The only written record of this decision is contained in the minutes of
this meeting. Giant argues that its appeal should be granted because (1) The adjudication made
by Lancaster Township Board of Supervisors denying Giants request was not in accordance
with the law, (2) the proceedings were held in violation of Subchapter B of Chapter 5 of Local
Agency Law, and (3) the denial was not supported by substantial evidence. See Appeal, 18.
1

Lancaster Township filed notice of record transmittal on September 9, 2016. Giant filed
its brief in support of appeal on October 19, 2016. On October 28, 2016, the court denied Giants
appeal without prejudice and remanded to Lancaster Township. Lancaster Township filed a
motion for reconsideration on October 31, 2016, and the court vacated its October 28th order by
order dated November 3, 2016, and laid out a briefing schedule. On November 28, 2016, the
MBDA filed a motion for leave to file an amicus brief, and this motion was granted on
December 5, 2016. Lancaster Township filed its brief on November 28, 2016, and a response to
MBDAs motion on December 6, 2016. Giant filed its reply brief on December 9, 2016, and a
response to MBDAs motion on December 27, 2016.
II.

DISCUSSION
The participants in this appeal suggest various ways the court might resolve the issue.

Giant requests a de novo review of the record. Lancaster Township argues that Giants stated
basis for this courts jurisdiction is improper. The MBDA argues that Giants appeal should be
denied as premature. While the court is reluctant to following the path suggested by the MBDA,
it agrees with Lancaster Township that it does not have jurisdiction of this appeal under Local
Agency Law. For the reasons that follow, Giants appeal will be dismissed.
A. Appeal Premature
At first glance, it appears that Giant has not complied with the full requirements of the
Liquor Code and its appeal is therefore premature. The Liquor Code outlines a two-step process
by which an applicant such as Giant can seek approval of an intermunicipal transfer of a liquor
license. First an applicant seeks approval from the local governing body. Next the applicant
must submit its application to the Pennsylvania Liquor Control Board.
Section 4-461(b.3) provides in relevant part:
2

An intermunicipal transfer of a license . . . 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.
47 P.S. 4-461(b.3). Once approved, [e]very applicant for a transfer of a license under the
provisions of this article shall file a written application with the board. 47 P.S. 4-469(a).
Giant has completed with the first step of the process. It sought approval of Lancaster
Township, but its application was denied. Giant appeals that decision to this court without first
filing its written application with the PLCB. In Giant Foods, LLC v. Penn Township, a case
with a nearly identical posture to the one currently before the court, the Chester County Court of
Common Pleas quashed Giants appeal on the grounds that its appeal was premature and failed
to follow the Liquor Code. The Chester County Court concluded:
[A]n applicant now has only one route available to itfile an application with
the PLCB and thereafter, if denied, follow the procedures in Section 4-464 [of
the Liquor Code]. Because that was not done in this case, Giant, at this time,
has failed to file an appeal in accordance with the applicable statue.
Giant Foods, LLC v. Penn Township, No. 2016-03879-CS, slip op. (Chester Co. C.C.P., June
23, 2016).
The court finds this path attractive for two reasons. First, and most significantly, it gives
effect to the entire statute. First Union Nat. Bank v. Portside Refrigerated Services, Inc., 827
A.2d 1224, 1229 (Pa. Super. 2003) (whenever possible, courts must construe a statute so as to
give effect to every word contained therein). The Liquor Code clearly gives a disappointed
party the right to appeal a decision of the PLCB:
Any applicant who has appeared at any hearing, as above provided, who is
aggrieved by the refusal of the board to issue any such license or to renew or
transfer any such license . . . may take an appeal limited to the question of such
grievance, within twenty days from date of refusal or grant, to the court of
3

common pleas of the county in which the premises or permit applied for is
located.
47 P.S. 4-464. Just as clearly, the Code denies any right to appeal the decision of municipal
governing body: The municipality may approve the request. A decision by the governing body
of the municipality to deny the request may not be appealed. 47 P.S. 4-461(b.3) (emphasis
added). While Giant advances another basis for this courts jurisdiction over its appeal (see
II.B, infra), finding its appeal premature gives effect to both these provisions.
Unfortunately, such a construal of the statute muddies another provision. Section 4461(b.3) also requires that [a] copy of the [municipal governing bodys] approval must be
submitted with the license application [to the PLCB]. 47 P.S. 4-461(b.3) (emphasis and
bracketed text added). If an application to the PLCB must contain an approval from the
municipality, than an applicant such as Giantwhose request has been denied by the governing
bodycannot submit an application to the PLCB.
This places the court in the unenviable position of attempting to reconcile the statute not
with the greater statutory scheme but with the statute itself. For this reason, the court is reluctant
to concur with the Chester County Court of Common Pleas and declare Giants appeal
premature. Instead, the court will examine the other basis for its jurisdiction which Giant
advances.
B. Decision Not An Adjudication.
Giant recognizes that the Liquor Code does not allow it an appeal to the court of common
pleas at this stage of the proceedings. See 47 P.S. 4-461(b.3) (The municipality may approve
the request. A decision by the governing body of the municipality to deny the request may not be
appealed). Giant argues, however, that its appeal is proper under Local Agency Law. Local
4

Agency Law provides that the statute 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.
2 Pa.C.S.A. 751(a). So while the Liquor Code provides that a municipal decision may not be
appealed, this provision does not trump or negate Local Agency Law.
This interrelation between Local Agency Law and the Liquor Code was confirmed in the
Pennsylvania Supreme Courts decision in Maritime Management Inc. v. Pennsylvania Liquor
Control Board. In Maritime the applicant had sought a public service liquor license from the
PLCB pursuant to Section 408 of the Liquor Code. The Code provided that there shall be no
appeal from [the PLCBs] decision. 47 P.S. 4-408(b). The PLCB denied Maritimes
application, and it appealed to the Commonwealth Court, which quashed the appeal on the basis
of Section 4-408(b). Maritime next appealed to the Pennsylvania Supreme Court, which agreed
with Maritimes contention that the provisions of the Liquor Code prohibiting an appeal do not
bar appeals taken under Administrative Agency Law. See Maritime Management Inc. v.
Pennsylvania Liquor Control Board, 611 A.2d 202, 204-05 (Pa. 1992) (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).1
However, the decision in Maritime does not provide Giant with the authority it needs to
establish the propriety of its appeal under Local Agency Law. First, the posture of the cases is
distinct. In Maritime the appellant sought to acquire a new liquor license, and its application was
denied by the PCLB. Here, Giant sought to transfer a license, and this request was denied by the

The fact that Maritime decided the applicability of the right to appeal under Administrative Agency Law and
Giants appeal is taken pursuant to Local Agency law is of no import here, as the provisions mirror one another.

municipal body. Further the court in Maritime did not engage in any rights and privileges
analysis. While this court could simply presume that such an analysis was implied by the
Supreme Courts holding, this line of inquiry has been developed by appellate courts in the years
subsequent to Maritime, and this court finds such developments impossible to ignore.
Giant takes the position that the Board of Supervisors decision can be appealed under
Local Agency Law, Section 752:
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.A. 752. The question before the court is not whether Giant has been aggrieved by
Lancaster Townships denial of the intermunicipal transfer, but whether that decision is an
adjudication under the law. Local Agency Law defines an adjudication as
[a]ny 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.A. 101. Clearly, Lancaster Townships denial was a final decision by the Board of
Supervisors. What is not clear, however, is whether that decision affected Giants personal or
property rights.
The Liquor Code recognizes a liquor license as both a right and a privilege. Section 4468(d) provides that [t]he license shall constitute a privilege between the board and the licensee.
As between the licensee and third parties, the license shall constitute property. 47 P.S. 4468(d). See also Young J. Lee, Inc. v. Com., Dept. of revenue, Bureau of State Lotteries, 474
A.2d 266, 270 (Pa. 1983) (Government licenses generally constitute a form of property insofar
as they are an entitlement to engage in a valuable activity). So Giant has a property right
6

inherent in its liquor license. But this alone does not resolve the question. The question this court
must answer is whether the property rights inherent in a liquor license include the right to
transfer that license into another municipality. The court finds that it does not.
Regardless of the availability of appeal under Local Agency Law, the Liquor Code gives
municipal bodies the discretion to approve or deny intermunicipal liquor license transfers.
Section 461(b.3) provides in relevant part
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 or issuance of an
economic development license. The municipality may approve the request.
A decision by the governing body of the municipality to deny the request may
not be appealed.
47 P.S. 4-461(b.3) (emphasis added). The decision to approve or deny a transfer request is
solely within the discretion of the governing body. The Code provides no standards to guide the
municipalitys discretion, nor does it require the municipality to provide justification for the
exercise of its discretion. The municipalitys discretion under Liquor Code regarding
intermunicipal transfers is unfettered.
Where an agency has been given unfettered discretion by statute, the person or entity
soliciting the exercise of that discretion does not have a property interest in the benefit sought.
See Caba v. Weaknecht, 64 A.3d 39 (Pa. Cmwlth. 2013). Caba provides a useful contrast to the
instant matter. There, the appellants firearms license had been revoked and the trial court
affirmed the revocation. On appeal, the Commonwealth Court found that the appellant did have a
protected property interest in his license to carry a concealed firearm because the agency charged
with issuing that licensethe sheriffdid not have unfettered discretion to issue or to revoke the
license. The sheriff was bound by statute to issue the license if the applicant possessed the
7

qualifications and bound to revoke the license if it was later found the applicant no longer
possessed the requisite qualifications. Caba v. Weaknecht, 64 A.3d at 63 (It is not the existence
of discretion that precludes recognition of a property interest, but rather whether that discretion is
unfettered and thus unassailable. (citing Town of Castle Rock v. Gonzales, 545 U.S. 748, 78990 (2005)).
In Caba, the Commonwealth Court favorably cited the U.S. Supreme Court in Board of
Regents of State Colleges v. Roth. Roth is on point with the instant matter. In Roth a professor at
a state university sought a hearing after the university declined to rehire him following the
expiration of his one-year contract. The court found he had no right to a hearing. As the court in
Caba notes, this was because the renewal decision was a matter solely within the discretion of
his employer, there were no standards governing the exercise of that discretion, the employer did
not have to provide any reason for exercising that discretion, and the decision of the employer
was final and unappealable. Caba, 64 A.3d at 63 citing Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 567 (1972).
Giants position before the Lancaster Board of Supervisors is on point with that of the
university professor in Roth but not with that of the concealed carry permit applicant in Caba.
The sheriffs discretion to approve and revoke permits was bounded by statute. This gives
applicants a property interest, an interest directly affected by the decision. The universitys
discretion to rehire professors, however, was unfettered, and the decision not to rehire did not
therefore affect any property interest. In this case, the Board of Supervisors discretion to
approve or deny a request for an intermunicipal transfer of a liquor license is unfettered, and so
its decision to deny Giants request does not affect Giants property interest as such. While Giant

might have a need or desire for the intermunicipal transfer, such a need or desire to transfer its
license does not rise to the level of a property right.2
III.

CONCLUSION
For an appeal to be taken under Local Agency Law as Giant here desires, there must have

been an adjudication affecting property rights. While Giants need or desire for an intermunicipal
transfer of its liquor license has been affectedbeing denied by Lancaster TownshipGiant had
no property right or interest in such a transfer. Absent an adjudication, this appeal cannot be
taken under Local Agency Law and this court lacks subject matter jurisdiction. Giants appeal
must be dismissed. An appropriate order follows.

For this reason, the court declines to concur with its sister court in the matter of Butters v. Bloomberg, No. 629CV-2013, slip op. (C.C.P. Columbia City, Sep. 3, 2013). The court in Butters rested unreflectively upon 47 P.S.
468(d) and did not considered whether the property interest inherent in a liquor license includes the right to transfer
that license between municipalities where the statute gives the governing body unfettered discretion to approve or
deny the request.

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA

CIVIL ACTION LAW
GIANT FOOD STORES, LLC,
Appellant
v.
LANCASTER TOWNSHIP,
Appellee

:
:
:
:
:
:
:

No. CI-16-05956

ORDER
AND NOW, this 17th day of January 2017, the appeal of Giant Food Stores, LLC is
DISMISSED for lack of subject matter jurisdiction.
BY THE COURT:

______________________________
LEONARD G. BROWN, III, JUDGE

ATTEST:
Copies: Ellen M. Freeman, Esq.
Matthew H. Haverstick, Esq.

10