Document Type

Case Brief

Publication Date



The instant case was commenced by the filing of a petition for review in our original jurisdiction by eight holders of either importing distributor's licenses or distributor's licenses (Licensees). Specifically, Licensees sought: 1) a writ of prohibition restraining the office of the administrative law judge (ALJ) from proceeding on citations issued by the Bureau of Liquor Control Enforcement (BLCE); and 2) declaratory and injunctive relief regarding the charges brought against Licensees by the BLCE and the impropriety of BLCE hearings on those charges. The gravamen of Licensees' petition was that the Bureau of Liquor Control Enforcement (BLCE) improperly issued citations against them in April, 1993, and the office of the administrative law judge did not have power to hold hearings on those citations.1 Respondent **31 Liquor Control *294 Board (LCB) filed preliminary objections in the nature of a demurrer. Respondents BLCE, Colonel Glenn A. Walp and Major William Mericle (State Police) filed preliminary objections in the nature of a demurrer as well as preliminary objections in which they raised lack of subject matter jurisdiction and failure to join a necessary party. At oral argument on February 28, 1994, we granted the motion of the State Police to amend their preliminary objections to raise a demurrer based on the withdrawal of the above-referenced citations. We agree that Licensees have failed to state a cause of action upon which relief can be granted and therefore dismiss Licensees' petition for review.2 1When Licensees filed their petition for review in August, 1993, the citations issued by the BLCE were pending against them. However, upon motion of the BLCE, the office of the ALJ withdrew the citations in February, 1994. BLCE sought withdrawal of the citations based on Mallios v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 534 Pa. 616, 633 A.2d 1163 (1993). In Mallios the supreme court held that the one-year provision for the issuance of citations under Section 471 of the Liquor Code requires that citations issue within one year from the date of the occurrence of the violation. Since the allegations in the citations issued to Licensees refer to alleged events which occurred more than *295 one year prior to the date of issuance, the citations were properly withdrawn. 2The law is clear that a court, when ruling on preliminary objections in the nature of a demurrer, may sustain the preliminary objections and dismiss the complaint only in cases which are clear and free from doubt that the law will not permit recovery by the plaintiff. Capital City Lodge No. 12 v. City of Harrisburg, 138 Pa.Commonwealth Ct. 475, 588 A.2d 584 (1991). In Rich v. Department of General Services, 130 Pa.Commonwealth Ct. 71, 566 A.2d 1279 (1989) we stated: Declaratory relief is not available unless an actual controversy exists, is imminent or inevitable. Declaratory judgment is not appropriate to determine rights in anticipation of events which may never occur; it is an appropriate remedy only where a case presents antagonistic claims indicating imminent and inevitable litigation. Id. at 73–74, 566 A.2d at 1280. Once the BLCE withdrew the citations against Licensees, there was no longer a matter in controversy to which declaratory or injunctive relief could be sought. Licensees maintain that such relief is appropriate because they fear that the BLCE will bring citations regarding similar charges in the future. However, we find no support in the record for Licensees' claim that such charges are imminent or inevitable.3 Accordingly, we sustain the preliminary objection in the nature of a demurrer filed by the Pennsylvania State Police, Bureau of Liquor Control Enforcement, Colonel Glenn A. Walp and William A. Mericle and dismiss the Licensee's petition for review with prejudice.


Commonwealth Court of Pennsylvania


Smith, Schultz, Newman, Hon. George T. Kelton


Roslyn M. Litman, Martha Helmreich, for petitioners. Stanley J. Wolowski and Francis X. O'Brien, for respondents.

Included in

Law Commons