IN THE COMMONWEALTH COURT OF PENNSYLVANIA

New Oxford Social and :

Athletic Club, : No. 2536 C.D. 2015

: Argued: September 13, 2016

Appellant :

:

v. :

:

Pennsylvania State Police, Bureau :

of Liquor Control Enforcement :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION 

BY SENIOR JUDGE FRIEDMAN FILED: December 6, 2016

New Oxford Social and Athletic Club (Club) appeals from the 

November 12, 2015, order of the Court of Common Pleas of Adams County (trial 

court) that affirmed the order of the Pennsylvania Liquor Control Board (LCB), 

which found that the Club violated the Liquor Code1and the Local Option Small 

Games of Chance Act (Chance Act).2 We affirm.

 

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

2 Act of December 19, 1988, P.L. 1262, as amended, 10 P.S. §§328.101-328.915.
2

The Club, a non-profit corporation, has a liquor license, a club license 

under the Chance Act, and a small games of chance license issued by the Adams 

County Treasurer.

From March 28, 2013, through July 29, 2013, the Pennsylvania State 

Police, Bureau of Liquor Control Enforcement (Bureau), investigated the Club. In a 

letter dated August 14, 2013, the Bureau notified the Club of four violations, which 

violations could result in the issuance of a citation. (Letter, 8/14/13, at 1.)3 

On August 23, 2013, the Bureau issued a citation to the Club containing 

six counts. Counts 1 to 4 were under the heading “First Cause of Action: The 

Pennsylvania Local Option Small Games of Chance Act.” (Citation, 8/23/13, at 1-2.) 

Count 1 alleged that on nine separate occasions from August 19, 2012, through April 

6, 2013, the Club awarded more than $25,000 in prizes in a seven-day period. (Id.) 

Count 2 alleged that from January 4, 2013, through April 17, 2013, the Club failed to 

operate the small games of chance in conformity with the Chance Act. (Id. at 2.) 

Count 3 alleged that from January 8, 2013, though May 7, 2013, the Club used funds 

derived from the operation of the games of chance for purposes other than those 

authorized by law. (Id.) Count 4 alleged that for two years preceding May 13, 2013, 

the Club failed to maintain complete and truthful records regarding small games of 

chance. (Id.)

 

3

The Bureau alleged that: (1) the Club failed to maintain complete and truthful records 

regarding small games of chance; (2) the Club awarded more than $25,000 in small prizes in a 

seven-day period; (3) the Club used funds derived from the operation of the games of chance for 

purposes other than those authorized by law; and (4) the Club failed to operate small games of 

chance in conformity with the Chance Act. (Letter, 8/14/13, at 1.)
3

Counts 5 and 6 were under the heading “Second Cause of Action: 

Pennsylvania Liquor Code.” (Id. at 3.) Count 5 involved the same facts as count 3 

whereas count 6 involved the same facts as count 4. The second cause of action 

contained the following prefatory language:

WHEREAS, Section []702(g) of the . . . Chance Act, 

10 P.S. §328.702(g), states that when a club licensee has 

committed three or more violations of the . . . Chance Act, 

the Bureau . . . may enforce a third or subsequent violation 

of the . . . Chance Act as a violation of the Liquor Code; 

and 

WHEREAS, the Bureau . . . is in possession of facts 

which leads it to believe that you have committed a third or 

subsequent violation of the . . . Chance Act . . . and that 

such violation constitutes a violation of the Liquor 

Code . . . .

(Id.)

The Club requested a hearing, which an administrative law judge (ALJ) 

conducted on May 20, 2014. The Club was not represented by a lawyer. However, 

Jeffrey Topper,4the Club president, attended along with counsel for the Bureau. 

During the proceedings, Topper admitted that the Bureau complied with the 

applicable notice requirements of the Liquor Code; the Club received notice of the 

violations; the Club paid out more than $25,000 in a seven-day period; some of the 

money garnered from the sale of small games of chance was used to pay wages; and 

the Club did not keep required records for the small games of chance. (N.T., 5/20/14, 

at 5-6, 30, 48, 50, 69-72.)

 

4

Topper executed an “Admission, Waiver, and Authorization” form. The ALJ did not 

accept the form and conducted the hearing.
4

On July 8, 2014, the ALJ sustained counts 1, 3, and 4 but dismissed 

counts 2, 5, and 6.5 The ALJ found insufficient evidence to support a violation as to 

count 2. As to counts 5 and 6, the ALJ determined that the Bureau failed to comply 

with the notice requirements of section 471 of the Liquor Code, 47 P.S. §4-471. 

Specifically, the ALJ concluded that whereas the citation contained six counts, the 

notice of violation previously sent to the Club alleged only four violations “none of 

which is identified as a Liquor Code or Small Games of Chance violation.” (ALJ 

Adjud., 7/8/14, at 6.) The ALJ also determined that as to counts 5 and 6, the Bureau 

lacked the authority to cite the Club under both the Chance Act and Liquor Code. 

The Bureau appealed to the LCB, arguing that the ALJ committed an 

error in dismissing counts 5 and 6. The LCB issued an October 20, 2014, order, 

determining that contrary to the ALJ’s determination, the Club had proper notice as to 

counts 5 and 6. The LCB affirmed the dismissal of count 5, but reversed the ALJ’s 

dismissal of count 6. The LCB concluded that section 702(g) of the Chance Act, 10 

P.S. §328.702(g), authorized the Bureau to cite the Club under both the Chance Act 

and Liquor Code for the third and subsequent violations of the Chance Act, which 

were contained in the citation even though these violations had not been the subject 

of a previous final determination. 

On November 24, 2014, the Club appealed the LCB’s decision to the 

trial court as to counts 3, 4, and 6 and requested that the trial court conduct a de novo 

 

5

The ALJ imposed a $2,400 fine and 15-day suspension of the Club’s license under the 

Chance Act for the Club’s violations.
5

hearing.6 On March 13, 2015, the Bureau filed a motion in limine, seeking to prohibit 

the Club from offering testimony contrary to the Club’s stipulations at the ALJ’s 

hearing. In response to the motion, the Club averred that Topper was not under oath; 

Topper was not advised that he was entering into stipulations; and no document 

entitled “stipulations” was agreed to or executed by Topper. Thus, the Club argued

that it had the right to offer testimony and evidence at a de novo hearing before the 

trial court.

In an October 6, 2015, order the trial court granted in part, and denied in 

part, the motion in limine. Because neither party appealed the ALJ’s adjudication to 

the LCB based on the issue of substantial evidence, the trial court determined that 

there were no factual issues preserved. The trial court determined that the ALJ’s 

decision as to counts 3 and 4 was final because neither party appealed those counts to 

the LCB. The trial court limited the scope of the Club’s appeal to count 6 and limited 

the Club’s testimony to the issuance of the penalty only. 

Thereafter, the trial court issued an opinion and order on November 12, 

2015. The trial court accepted the certified record of the proceedings before the ALJ 

and LCB, offered by the Bureau. The trial court adopted the ALJ’s and LCB’s 

findings of fact and concluded that the Club’s violation of counts 1, 3, and 4 served as 

the basis for the Club’s violation of count 6. The trial court concluded that section 

702(g) of the Chance Act authorized the Bureau to cite the Club under both the 

 

6

The Club originally contested the violation as to count 1 but declined to pursue it. (Trial 

Ct. Op., 10/6/15, at 3.).
6

Chance Act and Liquor Code for the third and subsequent violations of the Chance 

Act contained in the citation.

7

 This appeal followed.8

The Club initially argues that in accordance with Pennsylvania State 

Police, Bureau of Liquor Control Enforcement v. Cantina Gloria’s Lounge, Inc., 639 

A.2d 14, 20 (Pa. 1994), the trial court is to review the entire case de novo on 

questions of law and fact. We agree that the trial court’s review is de novo, but only 

as to those issues properly preserved by appeal.

Section 471 of the Liquor Code, 47 P.S. §4-471, provides in relevant 

part:

 

7

The trial court explained:

Instantly, the LCB ruled that the background supporting Count 1, and 

sustained by the ALJ, would constitute the first [Chance Act] violation. Count 2 was 

dismissed so the allegations supporting Count 3, and sustained by the ALJ, would 

constitute the second [Chance Act] violation. Count 5 alleged the same conduct as 

Count 3, and because there were not three [Chance Act] violations at the point, the 

threshold needed to seek enforcement under the Liquor Code was lacking. 

Therefore, Count 5 had to be dismissed by the LCB. The background supporting 

Count 4, and sustained by the ALJ, became the third [Chance Act] violation. Count 

6 alleged a violation of the Liquor Code based upon the same conduct alleged in 

Count 4. Therefore, the LCB found that the threshold was satisfied and the ALJ erred 

in dismissing Count 6.

(Trial Ct. Op., 10/6/15, at 5.)

8

This court’s review is limited to determining whether the trial court committed an error of 

law or abuse of discretion. Pennsylvania State Police, Bureau of Liquor Control Enforcement v. 

Wilner, 687 A.2d 1216, 1218 n.4 (Pa. Cmwlth. 1997).
7

(a) Upon learning of any violation of this act . . . the 

. . . [B]ureau may . . . cite such licensee to appear before an 

[ALJ] . . . .

(b) Hearing on such citations shall be held in the 

same manner as provided herein for hearings on 

applications for license. Upon such hearing, if satisfied that 

any such violation has occurred . . . the [ALJ] shall 

immediately suspend or revoke the license . . . . [A party] 

aggrieved by the adjudication of the [ALJ], . . . shall [have] 

a right to appeal to the [LCB]. The appeal shall be based 

solely on the record before the [ALJ]. . . . [T]here shall be a 

[further] right to appeal to the court of common pleas in the 

same manner as herein provided for appeals from refusals 

to grant licenses.

Section 464 of the Liquor Code, 47 P.S. §4-464, addresses appeals from a refusal to 

grant a license and provides that:

Such appeal shall be upon petition of the aggrieved party, 

who shall serve a copy thereof upon the [LCB], whereupon 

a hearing shall be held upon the petition by the court upon 

ten days’ notice to the [LCB]. . . . The court shall hear the 

application de novo on questions of fact, administrative 

discretion and such other matters as are involved . . . .

In accordance with the above, the ALJ held a hearing on the Club’s 

citations. Based on Topper’s stipulation of the facts,9the ALJ issued an adjudication 

sustaining counts 1, 3, and 4 and dismissing counts 2, 5, and 6.10 Section 471(b) of 

 

9

The Club argues that it never entered into a formal stipulation of facts. The Club, 

however, did not raise this issue before the LCB. As such, it is waived. See Burns v. Rebels, Inc., 

779 A.2d 1245, 1250 (Pa. Cmwlth. 2001) (a party’s failure to raise issue before the LCB resulted in 

waiver of that issue). 

10 The Bureau notes that the Club paid the $2,400 fine imposed by the ALJ by July 28, 2014, 

and served the 15-day suspension of its Chance Act license from September 8-24, 2014.
8

the Liquor Code provides that any party aggrieved by the ALJ’s decision may appeal 

to the LCB. That appeal is based solely on the record before the ALJ. Thus, the LCB 

addresses only those issues raised before it. Here, only the Bureau appealed to the 

LCB, raising two issues: whether the Bureau complied with the notice provisions as 

to counts 5 and 6; and whether the ALJ erred in dismissing counts 5 and 6 on the 

basis that the Bureau could not cite the Club for the same conduct under the Chance 

Act and the Liquor Code. Because neither party appealed as to the remaining counts 

and the LCB did not address them, the trial court could not consider them in its de 

novo review.

The Club relies on Pennsylvania State Police Bureau of Liquor Control 

Enforcement v. Progress Fire Company Home Association, 55 A.3d 1270, 1272 (Pa. 

Cmwlth. 2012), and Pennsylvania State Police, Bureau of Liquor Control 

Enforcement v. Harrisburg Knights of Columbus Home Association, 989 A.2d 39, 41

(Pa. Cmwlth. 2009), for the proposition that the trial court’s review is de novo. This 

court agrees but notes that in those cases, the licensee appealed the ALJ and LCB’s 

determinations. Thus, the licensee preserved issues for de novo review. Here, the 

trial court properly conducted de novo review only as to those issues properly 

preserved and not the entire case.

The Club next argues that the Bureau’s August 14, 2013, notice of 

violation letter was defective and violated the Club’s due process rights because it 

referenced only four of the alleged violations as opposed to all six of the violations. 

In accordance with 40 Pa. Code §15.41(b)(3), the citation is to contain “[a] brief 

description of the types and dates of alleged violations with separate counts if
9

separate charges.” We agree with the Bureau that the August 14, 2013, letter merely 

informed the Club that it completed its investigation on July 29, 2013, and informed 

the Club of four “alleged violations which may result in the issuance of a citation.” 

(Letter, 8/14/13, at 1.) The letter, however, was not a citation. The Bureau did not 

issue a citation until August 23, 2013, wherein the Bureau informed Club of the six

violations. As such, we find no error. 

Finally, the Club argues that section 702(g) of the Chance Act does not 

permit the Bureau to cite a club licensee under both the Chance Act and the Liquor 

Code when the third gaming violation is contained in the same citation as the first 

two violations. Specifically, the Club argues that the violations must have occurred 

separately and been adjudicated in a prior proceeding or proceedings. We disagree. 

Section 702(g) of the Chance Act, 10 P.S. §328.702(g) provides:

(1) Except as provided in paragraph (2), a violation of this 

[Chance Act] by a club licensee shall not constitute a 

violation of the Liquor Code.

(2) If a club licensee has committed three or more 

violations of this [Chance Act], the Bureau . . . may enforce 

a violation of this act as a violation of the Liquor Code.

Section 702(g) of the Chance Act uses the term “violation.” A violation is “[a]n

infraction or breach of the law.” Black’s Law Dictionary 1705 (9th ed. 2004). The 

plain language of the statute does not require a previous adjudication. 
10

Thus, if the Bureau charges a club with three Chance Act violations, as it 

did in this case, the Bureau may also seek to enforce a violation of the Chance Act as 

a Liquor Code violation. There is no requirement under the Chance Act that a club’s 

violations must have been previously adjudicated before the Bureau can cite a club 

under section 702 of the Chance Act with a Liquor Code violation. 

Ball Park’s Main Course, Inc. v. Pennsylvania Liquor Control Board & 

Pennsylvania State Police, 641 A.2d 713, 714 (Pa. Cmwlth. 1994) (en banc), does 

not change the outcome. In that case the trial court affirmed the LCB’s refusal to 

renew a tavern’s liquor license because it committed multiple violations of the Liquor 

Code. The LCB based its decision not to renew the license on nine violations 

adjudicated against the licensee by the ALJ and two unadjudicated violations. This 

court determined that the nine adjudicated violations supported the decision not to 

renew the license. However, we determined that the LCB should not have considered 

the two citations that were not yet adjudicated by the ALJ. Id. at 718. The ALJ is the 

factfinder and vested with the authority to adjudicate citations, and the LCB is limited 

to an appellate role in reviewing the ALJ’s decision. Id. & n.10. Thus, Ball Park

stands for the proposition that the ALJ, not the LCB, adjudicates citations. Only after

the ALJ finds that the licensee committed the charged violation can the LCB consider 

that conviction with respect to a liquor license renewal. 

The issue in this case is whether the Bureau can charge the Club under 

the Liquor Code when it only has evidence of three or more charged violations of the 

Chance Act. Although the Club argues that the Liquor Code violations should not 

have been brought in the same citation, (Club’s Br. at 51), there is no such prohibition 
11

in the Chance Act. Here, the Bureau charged the Club with violations of the Chance 

Act and the Liquor Code in a single citation. The violations occurred at separate 

times and did not result from a single incident. Arguably, the Bureau could have sent 

separate citations for each Chance Act violation and Liquor Code violation alleged. 

However, whether all charges are contained in the same or separate citations, the net 

effect is the same. The Bureau can cite a licensee for a violation under both the 

Chance Act and Liquor Code. 

Accordingly, we affirm.

__________________________________

ROCHELLE S. FRIEDMAN, Senior Judge

Judge Cosgrove did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

New Oxford Social and :

Athletic Club, : No. 2536 C.D. 2015

: 

Appellant :

:

v. :

:

Pennsylvania State Police, Bureau :

of Liquor Control Enforcement :

O R D E R

AND NOW, this 6

th day of December, 2016, we hereby affirm the 

November 12, 2015, order of the Court of Common Pleas of Adams County.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge