              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stone Neapolitan Pizzeria, Inc.                :
                                               :
                      v.                       :    No. 19 C.D. 2017
                                               :    Submitted: July 28, 2017
Pennsylvania Liquor Control Board,             :
                       Appellant               :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: September 22, 2017


      The Pennsylvania Liquor Control Board (Board) appeals from the December
9, 2016 and December 14, 2016 Orders of the Court of Common Pleas of
Allegheny County (trial court) regarding the statutory appeal of Stone Neapolitan
Pizzeria, Inc. (Licensee) from the Board’s denial of Licensee’s application to
renew (Application) its Restaurant Liquor License No. R-12948 (License) for its
premises located at 300 Liberty Avenue, Pittsburgh, Pennsylvania.1 The issues for
our review are whether the trial court: erred by not addressing whether Licensee’s
appeal from the Board’s denial, which was untimely, qualified for nunc pro tunc
relief; erred or abused its discretion in granting the renewal of Licensee’s late-filed


      1
          Licensee also has a Sunday sales permit and an amusement permit.
Application subject to the payment of Licensee’s delinquent taxes without
considering whether the untimely Application met the standard for nunc pro tunc
relief; and erred when, after considering the merits of the appeal, it directed the
Board to renew the License, subject to certain conditions related to Licensee
paying its delinquent taxes and obtaining a tax clearance from the Department of
Revenue (Revenue).2 Because the trial court did not make findings of fact or
provide analysis on whether Licensee’s untimely appeal met the requirements for
nunc pro tunc relief, we vacate and remand for the trial court to address this issue
and, if it concludes that such relief is warranted, it should address whether the
untimely Application likewise meets the standard for nunc pro tunc relief before
considering, if necessary, the merits of Licensee’s appeal from the non-renewal of
its License.
       Licensee, through its owner and president, Richard Werner, Jr., acquired the
License in 2012 for $70,000. Werner, on behalf of Licensee, renewed the License
several times without incident. For the licensing period effective June 1, 2015, the
Application should have been filed on or before April 2, 2015, to be timely per
Section 470(a) of the Liquor Code (Code), 47 P.S. § 4-470(a).3 Werner filed the
Application online on May 18, 2015. The Application indicated that Licensee’s
tax status with Revenue was “not clear” and the reason the Application was late
was because the “taxes are not up to date and [Licensee] needed time to get things
in order before filing for renewal.” (R.R. at 4a-5a.) On the Application, Werner
listed himself as Licensee and used his home address (Home Address) as requested


       2
          Licensee is precluded from participating in this appeal due to its failure to file a brief.
       3
          Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-470(a) (requiring, inter alia,
that a renewal application be filed at least 60 days before the expiration date of the license).



                                                 2
on the Application.4        The Application included Licensee’s name and address
(Business Address) next to a list of the license and permits being renewed.
        By letter dated July 30, 2015 (Objection Letter), sent to the Home Address,
the Bureau of Licensing (Bureau) expressed its objections to the renewal of the
License because, inter alia, the Application was untimely and Licensee did not
include verification, and the Board had not received notice from Revenue, that
Licensee’s state tax reports had been filed and all state taxes had been paid as
required by Section 477(a) of the Code, 47 P.S. § 4-477(a).5,6 (R.R. at 2a.) The
Objection Letter advised Licensee that a hearing on the objections would be
scheduled and Licensee would be contacted to schedule that hearing.
        A hearing was held before a hearing examiner on November 5, 2015, at
which the Bureau appeared and no one for Licensee was present. The Bureau
introduced, inter alia, the Objection Letter, the completed Application, and a letter
rescheduling the hearing from its initial date to November 5, 2015. The Objection
Letter and rescheduling letter were sent to the Home Address, and all of the
documents were admitted into the record. When asked whether the Bureau’s
counsel had any contact with Licensee, counsel indicated “it’s unclear to me
whether there was any direct contact” via the Bureau’s hearing scheduler. (Id. at
10a.)



        4
           The Application requested the “name and address of the owner of the premises,” and the
“home address” of the signatories of the Application, here, Werner as “Licensee” and
“President” of Licensee. (R.R. at 76a-77a.)
         5
           Section 477 was added by Section 77 of the Act of June 29, 1987, P.L. 32, as amended.
         6
           The Bureau also objected because Werner did not pay the required late fee. Werner
paid application fees of $1,140.00 and a late fee of $100.00, but the Bureau contends that the fee
for filing a late application is $150. (R.R. at 2a.)



                                                3
       Based on the evidence presented, the hearing examiner recommended that
the Application be denied because Licensee did not “comply with the[] basic
requirements for the renewal of a liquor license” by obtaining the tax clearance
required by Section 477 of the Code. (Id. at 15a.) The hearing examiner explained
that Section 477(d)(2)-(3) states that “[t]he Board shall not approve any application
for . . . renewal . . . of any license . . . where the applicant” has not filed all of its
state tax reports or paid the state taxes “subject to a timely . . . appeal or . . . a duly
authorized deferred payment plan.” (Id. (quoting 47 P.S. § 4-477(d)(2), (3)).) He
also noted that the Application was untimely and the proper late filing fee was not
submitted.
       After its review of the record and the hearing examiner’s recommendation,
the Board denied the Application by Order dated January 13, 2016. On the same
day, the Board sent this Order to the Home Address with a letter informing
Licensee of its refusal to renew the License and that Licensee could appeal
(Refusal Letter).       The Board subsequently issued an opinion explaining its
rationale for refusing to renew the License. It concluded that Licensee’s lack of
tax clearance precluded it from granting the renewal under Sections 470 and 477,
the Application was untimely filed without good cause, and Licensee did not remit
the late fee. (Board Op. at 6-9.)
       Licensee filed an appeal with the trial court on February 16, 2016,
requesting supersedeas under Section 464 of the Code,7 47 P.S. § 4-464, and
asserting that it was unaware of the November 5, 2015 hearing and the Board’s

       7
          Section 464 sets forth, inter alia, the provisions for hearings on license renewal
applications, requires that appeals from these determinations be filed within 20 days from the
date of grant or refusal, and states the “appeal shall act as a supersedeas unless upon sufficient
cause shown the court shall determine otherwise.” 47 P.S. § 4-464.



                                                4
refusal to renew the License was arbitrary, capricious, not supported by competent
evidence, and contrary to law. (R.R. at 23a-24a.) The trial court issued a writ of
certiorari on February 17, 2016, to the Board directing it to file the certified record
on the matter within 20 days. The Board, on February 23, 2016, filed a Motion to
Dismiss Appeal and to Quash Supersedeas (Motion to Dismiss), asserting, inter
alia, Licensee’s appeal was untimely because it was filed more than 20 days after
the January 13, 2016 Order and the supersedeas procedures of Section 464 do not
apply because Section 477(f) of the Code8 prohibits the grant of supersedeas under
these circumstances. Licensee responded that its appeal should be accepted nunc
pro tunc because it did not receive the January 13, 2016 Order and did not learn of
the denial of the Application until February 11, 2016. As for the request to quash
the supersedeas, Licensee contended that it was attempting to use the License as
collateral to obtain a loan to pay its taxes, it was willing to pay any fees associated
with the Application, and it was unaware that the late filing fee was required to be
paid with the Application.
        The trial court held a de novo hearing on June 27, 2016. The Board renewed
its Motion to Dismiss based on the untimeliness of Licensee’s appeal. It also
presented the documentary evidence the Bureau offered at the November 5, 2015
hearing, as well as the recommended opinion by the hearing examiner, and the
Board’s January 13, 2016 Order and accompanying Refusal Letter.9 (R.R. at 2a-
20a.)

        8
          Section 477(f) states, in relevant part, that “upon renewal . . . of any license, if . . .
Revenue . . . notifies the board of noncompliance with the aforementioned provisions, the board
shall not renew, issue, transfer or validate the license. Any appeal filed therefrom shall not act as
a supersedeas.” 47 P.S. § 4-477(f).
        9
          The Board also introduced documents that indicated that the hearing notices were sent
by certified mail to Werner and Licensee at the Business Address and that attempts were made to
(Footnote continued on next page…)


                                                 5
       Werner testified on Licensee’s behalf as follows. He is the sole owner,
president, and shareholder of Licensee, and he did not receive notice of the
November 5, 2015 hearing or the Board’s January 13, 2016 Order. Prior to the
Objection Letter, all the mail Licensee received from the Board was sent to the
Business Address, and Werner expected that correspondence would continue to be
sent to that address.10 He used the Home Address on the Application only because
it was the billing address for the debit card used to pay the application fees.
Werner does all of his business online, all of his financial statements and bills are
received and paid online, and he uses the Home Address, which is his father’s
address, as his mailing address and on his driver’s license. However, no one
actually resides there, he does not go there to retrieve his mail, and his father does
not deliver Werner’s mail to him. Werner learned of the Board’s Order while
obtaining a loan to pay Licensee’s outstanding taxes and immediately began the
process of appealing. On the merits, Licensee owes about $25,000 in sales tax.
Werner acknowledged Licensee’s employees collected the sales tax from
customers and admitted that the non-payment “f[e]ll[] on [him]” because he “filed
but didn’t send it in.” (R.R. at 117a.) Werner had secured a loan, using the

_____________________________
(continued…)
contact Werner about the hearings by phone but that no phone calls were returned. (Bd. Ex. 6.)
Licensee objected to these documents as hearsay, but the trial court “let it in, but . . . d[i]dn’t
know what weight [it was] going to give [them].” (R.R. at 129a-32a.) There were no signed
return receipts accompanying these documents. (Id. at 135a-36a.)
         10
            For example, Licensee introduced a supplemental order by the Board’s Office of
Administrative Law Judge, mailed to the Business Address, which: stated that a fine associated
with a citation due to be paid by Licensee by June 21, 2015, remained unpaid as of July 2, 2015;
noted that the License had expired on May 31, 2015, and had not been renewed; and ordered that
the License and permits “be suspended indefinitely for at least one day until the fine . . . has been
paid . . . pending the reactivation of the Licensee’s [L]icense.” (Licensee’s Ex. B1.) Werner
testified at the hearing that this fine had been paid. (R.R. at 110a.)



                                                 6
License as collateral, to pay the taxes, but could not close on the loan because the
License had not been renewed. As of the date of the de novo hearing, the taxes
remained unpaid.
       The trial court issued a Memorandum Order on December 9, 2016, in which
it recognized that “Werner has not made himself readily available and seems to
rely on the internet exclusively for communication” and for “all of his financial
transactions.” (Memorandum Order 1-2.) The trial court noted that while Werner
gave the Home Address, at which neither he nor his father lived, there was the
Business Address, where mail was also received.11 (Id. at 2.) The trial court found
that Licensee was in a “proverbial ‘Catch 22’” situation whereby it could obtain a
loan using the “[L]icense as collateral but the collateral was flawed because it had
not been renewed and thus the loan would not be granted.” (Id.) Concluding that
Licensee’s problem was the “inability to borrow money to pay delinquent taxes to
other Commonwealth Agencies,” the operation of the restaurant “has not been
problematic,” and it would be inequitable for Licensee to lose its $70,000
investment, the trial court directed the following:

       1. [The Board] is to renew the [L]icense on a provisional basis
          subject to [Licensee’s] paying the delinquent taxes due.

       2. Within 60 days, [Licensee] shall secure the Funds, by loan or
          otherwise to pay the aforesaid delinquent amounts.



       11
          According to the trial court, Werner did not renew the License “allegedly because he
did not receive notification of the impending expiration.” (Memorandum Order at 2.) There was
no allegation that Licensee did not receive notification that it was time to renew the License.
The trial court also stated that Licensee’s “appeal was DENIED,” (id.), but the hearing on the
Application and the Board’s January 13, 2016 Order did not involve an appeal.



                                              7
       3. On making such payments, Licenses[12] will be renewed.

(Id. at 2-3.)     On December 14, 2016, the trial court issued a Supplemental
Memorandum Order, adding that Licensee “shall pay a civil penalty of $2,500 so
as to defray such expense as the Board has incurred and to impress upon
[Licensee] the necessity to follow the rules.” (Supplemental Memorandum Order
at 2.) The Board now appeals to this Court.13
       The Board contends that the trial court erred when it addressed the merits of
Licensee’s appeal without first determining whether Licensee established that it
was entitled to nunc pro tunc relief for its untimely appeal and without ruling on
the Board’s Motion to Dismiss. It asserts that the trial court’s decision here is
substantively similar to its decisions in J.V. Lounge, Inc. v. Pennsylvania Liquor
Control Board, 131 A.3d 517 (Pa. Cmwlth. 2015) and Arena Beverage
Corporation v. Pennsylvania Liquor Control Board, 97 A.3d 444 (Pa. Cmwlth.
2014). In those cases, which also involved the Board’s denial of license renewals
for not providing the required tax clearances, this Court either vacated or reversed
the trial court’s orders granting the licensees’ appeals because it did not properly
apply the nunc pro tunc standard to the untimely appeals, and this Court reinstated
the Board’s denials. The Board asserts the result should be the same here.
       It is undisputed that Licensee’s appeal to the trial court was filed beyond the
20-day appeal period set forth in Section 464 of the Code. 47 P.S. § 4-464.


       12
          The use of “Licenses” includes Licensee’s Sunday sales and amusement permits.
       13
           Our review of a trial court’s decision to allow an untimely appeal nunc pro tunc “is
limited to determining whether the trial court abused its discretion or committed an error of law.”
J.V. Lounge, Inc. v. Pa. Liquor Control Bd., 131 A.3d 517, 521 n.7 (Pa. Cmwlth. 2015) (quoting
Puckett v. Dep’t of Transp., Bureau of Driver Licensing, 804 A.2d 140, 143 n.6 (Pa. Cmwlth.
2002)).



                                                8
“Where the legislature has fixed a time period within which an appeal may be
filed, that period is mandatory and may not be extended as a matter of grace or
indulgence.” Arena Beverage Corp., 97 A.3d at 448 (quoting Olson v. Borough of
Homestead, 443 A.2d 875, 878 (Pa. Cmwlth. 1982)) (emphasis omitted). “[T]he
timeliness of an appeal goes to the jurisdiction of the [court] appealed to and its
competency to act.” Id. (quoting Coshey v. Beal, 366 A.2d 1295, 1297 (Pa.
Cmwlth. 1976)). An appeal nunc pro tunc is an exception to this general rule, and
it “may be allowed where the delay in filing . . . was caused by extraordinary
circumstances involving fraud or some breakdown in the administrative process, or
non-negligent circumstances related to the appellant, his or her counsel or a third
party.” H.D. v. Dep’t of Pub. Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000)
(citing Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa.
1996)). The party seeking nunc pro tunc relief must also establish that: (1) the
nunc pro tunc request “was filed within a short time after learning of and having an
opportunity to address the untimeliness” of the matter; (2) “the elapsed time period
is of very short duration”; and, (3) the other party “will not be prejudiced by the
delay.” Id. (citing J.C. v. Dep’t of Pub. Welfare, 720 A.2d 193, 197 (Pa. Cmwlth.
1998)). The party seeking nunc pro tunc relief carries “a heavy burden to justify
an untimely appeal.” Blast Intermediate Unit No. 17 v. Unemployment Comp. Bd.
of Review, 645 A.2d 447, 449 (Pa. Cmwlth. 1994).           Before considering the
substantive issues of an appeal, “the trial court [is] required to first address”
whether the untimely appeal satisfies either of these standards. Arena Beverage
Corp., 97 A.3d at 449 (emphasis in original).
      As in J.V. Lounge, Inc. and Arena Beverage Corporation, the trial court here
did not make findings of fact or provide an analysis on whether Licensee met the



                                         9
standard for nunc pro tunc relief for its untimely appeal. It likewise did not resolve
the outstanding Motion to Dismiss based on that untimeliness. Rather, “without
applying or evaluating whether the record evidence supported nunc pro tunc relief,
the trial court considered the substantive issues and then assumed jurisdiction
based upon its perceived unfairness of the Board’s decision.” Arena Beverage
Corp., 97 A.3d at 449. Notwithstanding the trial court’s lack of analysis in those
cases, this Court considered whether nunc pro tunc relief would have been
appropriate under those circumstances and concluded it would not. We will not do
the same here because, unlike the licensees in J.V. Lounge, Inc. and Arena
Beverage Corporation, Licensee here provides a plausible basis, if credited and
supported by factual findings based on the record, that could warrant the grant of
nunc pro tunc relief on the basis of an administrative breakdown.14 Accordingly,
we will vacate the trial court’s Orders and remand for the trial court to make
findings of fact and a determination on whether Licensee meets the standard for
nunc pro tunc relief for its untimely appeal.
       The Board also argues the trial court erred in reversing the Board’s Order
because the Application was untimely and Licensee did not establish reasonable
cause for why the Application should have been accepted nunc pro tunc pursuant
to Cook. Section 470(a) provides that renewal applications “shall be filed . . . at
least sixty days before the expiration date of [the license].” 47 P.S. § 4-470(a).
This section also “[p]rovide[s], however, [t]hat the [B]oard, in its discretion, may

       14
          The crux of Licensee’s position was that there was a breakdown in the administrative
process when the Board used the Home Address to send, among other things, the January 13,
2016 Order, rather than the Business Address, where all other communications to Licensee have
been sent. Notably, the Application provides no place for a licensee to designate which address,
the licensed premises, the licensee’s home address, or some other address, the licensee wants any
correspondence from the Board to be sent.



                                               10
accept nunc pro tunc a renewal application filed less than sixty days before the
expiration date of the license with the required fees, upon reasonable cause
shown . . . .” Id. (emphasis added). This issue also was left unresolved by the trial
court, and, on remand, if the trial court concludes Licensee’s appeal should be
accepted nunc pro tunc, the trial court should determine whether the reason
proffered by Licensee for the untimely Application satisfies this standard for nunc
pro tunc relief.15
       Because the trial court did not make findings of fact or analyze whether
Licensee’s untimely appeal met the requirements for being accepted nunc pro tunc,
we vacate and remand for the trial court to issue a new opinion and order
addressing that issue. If it concludes that nunc pro tunc relief is warranted for the
appeal, it must address whether the untimely Application may be accepted nunc
pro tunc, before considering, if necessary, the merits of Licensee’s appeal from the
non-renewal of its License.




                                             _____________________________________
                                             RENÉE COHN JUBELIRER, Judge




       15
          The Board also argues, on the merits, that the trial court was precluded by Sections 470
and 477 of the Code from ordering the renewal of the License due to the lack of tax clearance
and non-payment of state taxes. These sections, according to the Board, mandate that such
applications must be denied. 47 P.S. §§ 4-470, 4-477(d). However, we will not address the
merits of this issue before the trial court has an opportunity to address the threshold issues.



                                               11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stone Neapolitan Pizzeria, Inc.         :
                                        :
                   v.                   :   No. 19 C.D. 2017
                                        :
Pennsylvania Liquor Control Board,      :
                       Appellant        :


                                   ORDER


      NOW, September 22, 2017, the December 9, 2016 and December 14, 2016
Orders of the Court of Common Pleas of Allegheny County (trial court), entered in
the above-captioned matter, are VACATED and the matter is REMANDED for
the trial court to issue a new opinion and order in accordance with the foregoing
opinion.


      Jurisdiction relinquished.




                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
