Judges Opinions, — September 1, 2026 15:12 — 0 Comments
Ninkovich, LLC, v. Pennsylvania Liquor Control Board
Ninkovich, LLC, v. Pennsylvania Liquor Control Board
Civil Action-Administrative Law-Liquor License-Safekeeping-Failure to Act-Revocation-De Novo Review-Nunc Pro Tunc Relief
On July 18, 2018, a liquor license held by Ninkovich, LLC, (“Appellant”) was accepted for safekeeping for a statutory two (2) year period under 47 P.S. § 4-474.1 by the Pennsylvania Liquor Control Board (“LCB”). Appellant was notified by the LCB that the liquor license would be revoked after June 18, 2020 if it failed to reactivate or transfer the license or extend the safekeeping period. Following extensions afforded until September 27, 2023, the LCB notified Appellant of the consequences of failing to take action prior to the expiration of the safekeeping period. On September 25, 2023, Appellant filed an intermunicipal place to place application seeking to transfer the license to a different address that did not contain a requisite resolution by the municipality of the new address approving the transfer. In light of the same, the LCB cancelled the transfer application on October 11, 2023 with providing Appellant a grace period to take action to avoid revocation of the license. On December 20, 2023, the LCB notified Appellant of revocation of the license. Appellant has filed an appeal from the revocation of the liquor license, asserting that the LCB erred by revoking the license while an administrative appeal was pending of denial by a municipality of an application to transfer the license and it is entitled to nunc pro tunc relief to submit a safekeeping fee.
1. A trial court reviewing a decision of the LCB concerning a liquor license hears the matter de novo.
2. De novo review means that the reviewing court will reappraise the evidence in the record.
3. Under Title 47 P.S. § 4-474.1, a licensee whose license has been placed into safekeeping must do the following prior to the end of the safekeeping period: request that the license be reissued, file an application to transfer the license or apply to extend the safekeeping period.
4. Where the application seeking to transfer the application to another place on September 25, 2023 was not a person to person transfer with a later application to transfer the license to another entity not having been filed until December 20, 2023 when the Board already had revoked the license and there were no pending appeals, transfer applications or requests to extend the safekeeping period at that time, the LCB properly revoked the license.
5. Under § 4-470, while all license renewal applications must be filed at least sixty (60) days before the expiration of the license, the Board may accept nunc pro tunc a renewal application filed less than sixty (60) days before the expiration date with the required fees upon reasonable cause shown and payment of $100.00.
6. The Liquor Control Code does not provide an equivalent nunc pro tunc provision with regard to revocation following safekeeping of a license with § 4-471.1 requiring that the LCB immediately revoke the license after expiration of the safekeeping period if appropriate action is not taken.
7. Nunc pro tunc or similar equitable relief is not available following the revocation of a license pursuant to a lapsed safekeeping period.
L.C.C.C.P. No. 2024-CV-1871, Opinion by Donna Long Brightbill, Judge, July 1, 2025.
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA
CIVIL ACTION – STATUTORY APPEAL
NINKOVICH, LLC, : NO. 2024-CV-1871
Appellant :
:
v. :
:
PENNSYLVANIA LIQUOR CONTROL :
BOARD, :
Appellee :
APPEARANCES:
Frank C. Sluzis, Esquire For Appellant
Michael J. Plank, Esquire For Appellee
OPINION BY LONG BRIGHTBILL, J., JULY 1, 2025:
Before this Court is Ninkovich, LLC’s Appeal of the Pennsylvania Liquor Control Board’s Order dated December 4, 2024, affirming the administrative revocation of Ninkovich, LLC’s liquor license.
FACTUAL AND PROCEDURAL HISTORY
This appeal concerns the revocation of Restaurant Liquor License No R-16170 (LID 67302) (hereafter “License”), formerly held by Ninkovich, LLC (hereafter “Appellant”), for premises located at 800 Cumberland Street, Lebanon, Pennsylvania. Appellant’s License was revoked on December 20, 2023. Appellant requested a hearing on the revocation before the Pennsylvania Liquor Control Board (hereafter “Board”). On August 26, 2024, a virtual hearing was held. Appellant presented documentary evidence but did not offer any testimony. After consideration of the evidence presented at the hearing, the Board affirmed the revocation of Appellant’s License by Order dated December 4, 2024.
On December 12, 2024, Appellant noted a timely appeal to this Court. By agreement of the parties, the de novo hearing in this matter was cancelled. Instead, the parties opted to have this matter decided based on the administrative record and the parties’ briefs. The parties have submitted their respective briefs, and the Board has filed its Opinion in support of the Order affirming the revocation of Appellant’s License.[1] The pertinent facts from the Board’s Opinion are summarized below.
On July 18, 2018, Appellant’s License was accepted for safekeeping by the Pennsylvania Liquor Control Board’s Bureau of Licensing, pursuant to Section 474.1 of the Liquor Code.[2] The License was initially accepted for the statutory safekeeping period of two years. Appellant was notified by the Board that the License would be revoked after June 18, 2020, if he failed to take the appropriate action to reactivate the License, transfer the License, or extend the safekeeping period.
The initial deadline of June 18, 2020, was extended several times. First, the deadline was administratively extended to October 31, 2021, due to the COVID-19 emergency declaration. Then, Appellant filed an application to extend the statutory period, and this application was approved by the Board. Appellant was notified of the new deadline of September 27, 2022. Finally, the Liquor Code was amended by Act 81 of 2021[3], resulting in an additional year of safekeeping for Appellant’s License, thus establishing a new deadline of September 27, 2023. Each time the safekeeping period was extended, the Board notified Appellant of the consequences of failing to take action prior to the expiration of the safekeeping period.
On September 25, 2023, two days before the safekeeping expiration date, Appellant filed an intermunicipal place-to-place application seeking to transfer the License from 800 Cumberland Street to 1 East Main Street, Palmyra, Pennsylvania. However, Appellant’s transfer application did not contain the requisite resolution by Palmyra approving the transfer.[4] Therefore, the Board cancelled the transfer application on October 11, 2023, but provided Appellant a grace period of approximately thirty days to allow him to take action to avoid the License revocation.
On November 2, 2023, Appellant filed another intermunicipal place-to-place application to transfer the License to the same Palmyra location, again without the requisite resolution approving the transfer. Subsequently, on November 14, 2023, the borough council of Palmyra denied the transfer. The Board cancelled Appellant’s second application on December 1, 2023, and again provided Appellant with a grace period to take action and avoid revocation.
Finally, on December 20, 2023, the Board notified Appellant that due to the safekeeping period expiring on September 27, 2023, the License was revoked by operation of law effective immediately. At that time, there was no transfer application pending. As described above, Appellant requested a hearing, and after consideration of the evidence adduced at that hearing, the Board affirmed the revocation. This Appeal followed.
Three additional findings of facts from the administrative record are relevant to Appellant’s arguments on appeal. First, on December 20, 2023, the same day Appellant’s License was revoked, an entity known as Behney Enterprises, LLC, filed an intermunicipal “double transfer” application.[5] Behney Enterprises, LLC, is owned by Christopher Behney, the brother of Derek Ninkovich, who owns Ninkovich, LLC (Appellant). The Behney Enterprises’ transfer application sought to transfer Appellant’s License to the same Palmyra location and to Behney Enterprises, LLC. As with Appellant’s previous two transfer applications, the Behney Enterprises’ application did not contain the requisite resolution from Palmyra approving the transfer. This application was cancelled by the Board on February 29, 2024.
Second, Appellant presented documentary evidence of a resolution of the borough council of Palmyra dated February 13, 2024. The resolution reflects Palmyra’s denial of Christopher Behney’s request to transfer the License to Palmyra.[6] Christopher Behney subsequently noted an appeal of this denial with this Court. Christopher Behney’s appeal is still pending at the time of this Opinion.
Third, Appellant presented documentary evidence in the form of a series of emails between Appellant and the Board’s employees, in which the employees provided information and guidance on how to transfer the License to Palmyra. The specific dates of each email exchange are not noted in the Board’s Opinion. However, it can be inferred that the emails were exchanged subsequent to the License revocation on December 20, 2023: the Board’s Opinion states that the “employees appeared to be unaware that the license had already been revoked pursuant to the Board’s letter of December 20, 2023.” On April 1, 2024, Appellant asked for assistance renewing his license and mentioned having trouble paying the safekeeping fee. On April 2, 2024, a Board employee responded that “[t]he payment issue has now been resolved,” without mentioning the revocation.
STANDARD OF REVIEW
A trial court reviewing a decision of the Board concerning a liquor license hears the matter de novo, and may sustain or amend the Board’s order even when it is based upon the same evidence. Paey Associates, Inc. v. Pennsylvania Liquor Control Board, 78 A.3d 1187, 1191 n.5 (Pa.Cmwlth. 2013). In conducting a de novo review, the trial court is “the ultimate fact finder” and, as such, “is empowered to determine the weight and credibility of the evidence, resolve conflicts in the evidence, and is free to reject even uncontradicted testimony.” 770 Ameribeer, Inc. v. Pennsylvania Liquor Control Board, 318 A3d 998, 1009 (Pa.Cmwlth. 2024) (citations omitted). “De novo review contemplates an independent evaluation of the evidence, which has already been presented. In essence, ‘de novo review’ means that the reviewing court will reappraise the evidence in the record.” Two Sophia’s, Inc. v. Pennsylvania Liquor Control Board, 799 A.2d 917, 922 (Pa.Cmwlth. 2002).
DISCUSSION
Appellant has raised two issues on appeal. The first is that the Board erred by revoking Appellant’s License. The second is that Appellant has met the burden for nunc pro tunc relief to submit an untimely fee to extend the License’s safekeeping period. The issues are addressed in turn below.
- Whether the Board erred by revoking Appellant’s License.
Pursuant to Section 474.1 of the Liquor Code, “[a licensee] whose licensed establishment is not in operation for fifteen consecutive days shall return its license for safekeeping with the board no later than at the expiration of the fifteen-day period.” 47 P.S. § 4-474.1(a). Section 474.1 further provides that:
The board may hold the license in safekeeping for a period not to exceed two consecutive years. Any license remaining in safekeeping for more than two consecutive years shall be immediately revoked by the Bureau of Licensing unless a transfer application or request for reissue from safekeeping has been filed prior to the expiration of the two-year period or unless the board has approved a request to extend the safekeeping for an additional year as set forth in subsection (g).
47 P.S. § 4-474.1(b) (emphasis added).
Subsection 474.1(g) provides that, for a specified fee, “[a] licensee whose license is subject to this section may, upon written request, apply to the board to allow the license to remain in safekeeping for an additional one year.” 47 P.S. § 4-474.1(g)(1).
Thus, a licensee whose license has been placed into safekeeping must take one of three actions prior to the end of the safekeeping period: request that the license be reissued, file an application to transfer the license, or apply to extend the safekeeping period. Regardless of the action chosen, the request or application must be received by the Board prior to the expiration of the safekeeping period. If not, the Board must “immediately revoke” the license.
In response, Appellee first notes that Appellant cites no authority for its position, and that nothing in the Liquor Code allows the Board to extend the safekeeping period to account for the pendency of a municipal appeal filed by a third party. Secondly, Appellee argues that when the License was revoked on December 20, 2023, there was no pending transfer application. Therefore, the tolling provisions of Section 474.1(b) did not apply, and the License was properly revoked by operation of law.
After review of the administrative record and the statute, the Court finds that the tolling provisions of Section 474.1(b) are not applicable, and the License was properly revoked. Appellant, whether inadvertently or otherwise, has misstated the facts as found by the Board in its Opinion. First, the transfer application filed on September 25, 2023, was a “place-to-place” transfer, meaning from one location to another. It was not a “person-to-person” transfer seeking to transfer the license to Behney Enterprises, LLC, as Appellant asserts. The application seeking to transfer the license to Behney Enterprises, LLC, was not filed until December 20, 2023, after the Board issued the notice of revocation. Moreover, the administrative record contains only one reference to an appeal noted by Christopher Behney, and none to an appeal noted by Behney Enterprises, LLC. Specifically, Christopher Behney appealed the borough council of Palmyra’s denial of his request to transfer the License to Palmyra. Palmyra denied the request on February 13, 2024. Assuming, arguendo, that the tolling provisions of Section 474.1 are applicable to a municipal appeal filed by a third party, Christopher Behney’s appeal was filed after the License had already been revoked.
Section 474.1(b) clearly states that any license remaining in safekeeping beyond the safekeeping period shall be “immediately revoked” unless a transfer application or a request for reissuance has been filed before the expiration of the safekeeping period, or unless the board has approved a request to extend the safekeeping period. The safekeeping period for Appellant’s license expired on September 27, 2023. Instead of immediately revoking his License, the Board granted Appellant multiple grace periods to allow him to avoid the revocation. When the Board finally revoked Appellant’s License on December 20, 2023, there were no pending appeals, transfer applications, requests to reissue, or requests to extend the safekeeping period. Appellant ultimately failed to take appropriate action, and the License was properly revoked pursuant to Section 474.1(b).
- Whether Appellant is entitled to nunc pro tunc relief to submit a safekeeping fee.
Pursuant to Section 4-470 of the Liquor Code, all license renewal applications must be filed at least 60 days before the expiration of the license. 47 P.S. § 4-470(a)(1). However, the statute also provides that the Board, “in its discretion, may 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 and the payment of an additional filing fee of one hundred dollars ($100.00) for late filing.” 47 P.S. § 4-470(a)(1).
The Code does not provide an equivalent nunc pro tunc provision with regard to safekeeping. See American Truck Plazas, LLC v. Pennsylvania Liquor Control Board, 332 A.3d 875 (Pa.Cmwlth. 2025). Instead, Section 474.1 requires that the Board immediately revoke a license upon expiration of the safekeeping period unless the licensee has timely filed to reissue, transfer, or extend the safekeeping period. 47 P.S. § 4-471.1(b).
Appellant nevertheless argues that he is entitled to nunc pro tunc relief under the standard set forth in Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996). In Cook, our Supreme Court held that “where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc.” Cook at 1131 (emphasis added). Appellant claims that it attempted to pay the fee to extend the safekeeping period but was prevented from doing so by a malfunction in the Board’s payment system. In support of this claim, Appellant references the series of emails that were offered by Appellant at the administrative hearing before the Board. According to Appellant, “the facts…clearly established that [Appellant’s] failure to timely pay the fee was a result in a breakdown of the Board’s administrative system.”
In response, Appellee cites to the recent decision in American Truck Plazas, LLC v. Pennsylvania Liquor Control Board, 332 A.3d 875 (Pa.Cmwlth. 2025). In American Truck Plazas, LLC, the Commonwealth Court confirmed that nunc pro tunc or similar equitable relief is not available following the revocation of a license pursuant to a lapsed safekeeping period under Section 4-474.1. In so holding, the Commonwealth Court noted that “[t]he fact that the legislature elected to include a nunc pro tunc provision in a different section of the Code, but omitted it with respect to safekeeping in favor of implementing a mechanism for automatic revocation demonstrates that the legislature knew how to carve out a nunc pro tunc exception but simply chose not to do so with respect to safekeeping.” American Truck Plazas, LLC at 882.
After review of the record, the Court is satisfied that Appellant is not entitled to nunc pro tunc relief to submit the safekeeping fee. Initially, the Court notes that there is no support in the record for Appellant’s claim that it attempted to timely submit the fee but was prevented due to a breakdown of the Board’s administrative system. Although Appellant references the emails offered at the hearing in front of the Board, the relevant email exchange appears to have taken place in April of 2024, months after Appellant’s License was revoked. Appellant has not offered any other evidence of non-negligent circumstances to excuse its failure to timely pay the fee to extend the safekeeping period.
Moreover, while Appellant relies on Cook in arguing that it ought to be granted nunc pro tunc relief, Cook’s holding addressed a jurisdictional issue – namely, the filing of an untimely appeal. No such issue is involved here. Instead, Appellant’s License was revoked, it requested and was granted a hearing in front of the Board, and it timely filed the instant appeal from the Board’s decision. Accordingly, Appellant is not entitled to nunc pro tunc relief to allow it to submit an untimely fee to extend the safekeeping period.
CONCLUSION
For the foregoing reasons, this Court affirms the Pennsylvania Liquor Control Board’s Order dated December 4, 2024, affirming the administrative revocation of Appellant’s License. As such, Appellant’s Appeal is respectfully denied.
A concomitant Order will be entered consistent with the foregoing.
[1] The Board’s Opinion contains specific citations to the administrative record.
[2] 47 P.S. § 4-474.1
[3] See 47 P.S. § 4-462.1; see also PA LEGIS 2021-81, 2021 Pa. Legis. Serv. Act 2021-81 (H.B. 425) (PURDON’S)
[4] 47 P.S. § 4-461(b.3)
[5] A double transfer application is the term used to describe a person-to-person and place-to-place transfer.
[6] It is not clear from the administrative record when Christopher Behney filed this transfer application.
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