Received 4/15/2020 4:24:26 PM Commonwealth Court of Pennsylvania

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

__________________________________________
MFW WINE CO., LLC :
and A6 WINE COMPANY, :
:
Plaintiffs, :
:
v. : No. _________________
:
PENNSYLVANIA LIQUOR CONTROL :
BOARD, :
:
Defendant. :
_________________________________________:

NOTICE TO DEFEND
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following pages, you must take action within twenty (20) days after this complaint
and notice are served, by entering a written appearance personally or by attorney and
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 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
__________________________________________
MFW WINE CO., LLC :
and A6 WINE COMPANY, :
:
Plaintiffs, :
:
v. : No. _________________
:
PENNSYLVANIA LIQUOR CONTROL :
BOARD, :
:
Defendant. :
_________________________________________:

COMPLAINT

Plaintiffs MFW Wine Co., LLC and A6 Wine Company (collectively,

“Plaintiffs”) respectfully submit this Complaint against the Pennsylvania Liquor

Control Board (the “PLCB” or “Defendant”) pursuant to this Court’s original

jurisdiction under 42 Pa.C.S. § 761. Plaintiffs seek to compel the PLCB’s

compliance with its statutory duty to implement a procedure for direct delivery of

special liquor orders under 47 P.S. § 3-305, which duty the PLCB has refused to

perform. Plaintiffs, who are vendors licensed to sell wine in Pennsylvania, have a

direct interest in the result and have no other adequate remedy at law. In support

of their Complaint, Plaintiffs state:

BACKGROUND

1. Section 305 of this Commonwealth’s Liquor Code, 47 P.S. § 1-101 et

seq., imposes a mandatory duty on the PLCB to implement a system for direct
delivery to customers of special liquor orders placed with licensed vendors and

importers.

2. The PLCB has refused to comply with this duty, claiming that its

obligation to implement a system of direct delivery is merely discretionary.

3. The PLCB’s failure to comply with Section 305 of the Liquor Code

has caused, and is continuing to cause, substantial harm to Plaintiffs.

4. On March 16, 2020, the PLCB suspended special orders “indefinitely”

in light of Governor Tom Wolf’s then-impending closure of the state’s Fine Wine

and Good Spirits stores.

5. As such, Plaintiffs have no method by which to deliver product to

their customers, which include restaurants and retailers that rely on the inventory

Plaintiffs supply.

6. The PLCB’s failure to comply with its duty under Section 305 of the

Liquor Code has caused a presently-held legal injury to Plaintiffs and has ripened

for immediate emergency mandamus relief by this Court.

PARTIES AND JURISDICTION

7. Plaintiff MFW Wine Co., LLC is a New York domestic limited

liability company with its principal place of business at 79 Madison Avenue, 8th

Floor, Suite 235, New York, New York 10016.

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 8. Plaintiff A6 Wine Company is a Pennsylvania domestic limited

liability company with its principal place of business at 1703 Alba Road, Willow

Grove, Pennsylvania 19090.

9. Defendant is the Pennsylvania Liquor Control Board, an independent

administrative board of the Commonwealth of Pennsylvania located at 401

Northwest Office Building, Harrisburg, Pennsylvania 17124.

10. As an independent administrative board of the Commonwealth, the

PLCB itself is the proper defendant in this mandamus action under Pa.R.C.P. 1094.

11. The Commonwealth Court has original jurisdiction over this action

under 42 Pa.C.S. § 761.

FACTUAL BACKGROUND

I. The Legislature Amends the Liquor Code and Enacts a Scheme for
Direct Delivery of Special Liquor Orders to Customers

12. On June 8, 2016, Governor Tom Wolf signed Act 39 (Public Law

273, No. 39) into law, amending the Commonwealth’s Liquor Code to allow for

direct delivery of special liquor orders by licensed importers and vendors to their

customers.

13. Act 39 was heralded by many as a much-needed and long overdue

modernization of Pennsylvania’s antiquated liquor laws. Companies like MFW

would finally be able to deliver wine directly to their customers and avoid having

to deliver their wine to state-run stores for pickup.

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 14. Specifically, Act 39’s amendments to the Liquor Code, codified at 47

P.S. § 3-305(a), state that the PLCB “shall, by January 1, 2017, implement a

procedure for processing special orders which do not come to rest at a store.”

15. On July 13, 2016, the Governor signed Act 85 (Public Law 664, No.

85) into law, amending the Fiscal Code to provide for implementation of the 2016-

2017 Commonwealth budget.

16. Act 85 extended the PLCB’s deadline to implement a procedure for

direct delivery to customers to June 1, 2017:

Notwithstanding the provisions of section 305 of the act

of April 12, 1951 (P.L. 90, No. 21), known as the Liquor
Code, the Pennsylvania Liquor Control Board may
implement a procedure for processing special orders
which do not come to rest at a store by June 1, 2017.

72 P.S. § 1799.2-E.

17. Act 85’s use of the term “may” does not alter the mandatory nature of

the duty imposed on the PLCB in Act 39.

18. Rather, this provision of Act 85, now codified at 72 P.S. § 1799.2-E,

provided the PLCB with an additional five months to implement a change to the

way alcohol is delivered in the Commonwealth.

19. This is evidenced by the Liquor Code itself and its legislative history.

20. The text of section 305(a) continues today to contain all of the

language enacted by Act 39:

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 A licensed importer or a licensed vendor may place
special orders on behalf of customers and may deliver the
orders to customers. The orders do not need to come to
rest at a store, but delivery may not occur until payment
for the order has been forwarded to the board and the
board has authorized the delivery of the order. A
handling fee may not be assessed by the board on an
order delivered directly to a customer. Liability for
special orders that do not come to rest at a store, shall,
until the order is delivered to the customer, remain with
the licensed importer or licensed vendor that placed the
order on behalf of the customer. The board shall, by
January 1, 2017, implement a procedure for processing
special orders which do not come to rest at a store. The
board may continue to accept special orders at its stores
even after the procedure is implemented.

47 P.S. § 3-305(a) (last amended January 17, 2017) (emphasis added).

21. If the Legislature intended to replace the above-italicized phrase with

Act 85’s use of the term “may,” it would have done so by striking the overlapping

language contained in Section 305(a).

22. Rather than repealing Act 39’s phrase containing the word “shall,” the

Legislature enacted an amendment that merely altered the date by which PLCB

was required to comply.

23. Also, the remainder of the above-quoted text of Act 39 would be

rendered mere surplusage, an absurd result, if Act 85 made this duty discretionary.

24. Under Pennsylvania’s Statutory Construction Act of 1972, when there

is a construction of two overlapping statutes that allows effect to be given to both,

that meaning controls. 1 Pa.C.S. § 1933.

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 25. The Legislature’s intent to give meaning to both statutes here is

obvious, especially in light of its choice not to repeal from Section 305(a) any

portion enacted by Act 39.

26. The only possible construction that gives meaning to both statutes is

one that reads Act 39 as creating a mandatory duty to implement a direct delivery

procedure, evidenced by use of the word “shall” and the nearby inclusion of other

rules that would apply to such a procedure, while Act 85 provided an additional

five months for compliance.

27. Making matters even more clear, on November 15, 2016, over five

months after passage of Act 85, the Legislature further amended Section 305(a) of

the Liquor Code when the Governor signed Act 166 (Public Law 1286, No. 166)

into law.

28. Act 166, which became effective January 17, 2017 and post-dates

both Act 39 and Act 85, amended Section 305(a) of the Liquor Code by requiring

suppliers of special liquor orders to fulfill single-bottle orders, in exchange for the

allowance of a surcharge to compensate the smaller order size—something the

PLCB has also not yet implemented.

29. Despite post-dating both Act 39 and Act 85, Act 166 left intact all of

the language imposing a mandatory duty on the PLCB to “implement a procedure

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for processing special orders which do not come to rest at a store.” 47 P.S. § 3-

305.

30. This further demonstrates the Legislature’s intent to impose a

mandatory duty on the PLCB to implement a direct delivery system.

31. To this day, the PLCB has not “implement[ed] a procedure for

processing special orders which do not come to rest at a store.”

32. In fact, on August 2, 2017 the PLCB has released an Advisory

Opinion where it alleged that its duty under Section 305(a) is merely discretionary,

and that “at the present time, the PLCB has not opted to implement a procedure to

allow for the direct shipment of special orders.” See LCB Advisory Opinion No.

17-307.

II. The PLCB’s Erroneous Interpretation of its Duty to Implement a Direct

Delivery Procedure Becomes Ripe for Mandamus Relief

33. From the release of the PLCB’s Advisory Opinion dated August 2,

2017, until March 16, 2020, it was possible, notwithstanding the PLCB’s failure to

comply with this mandatory duty, for any special order placed with a licensed

vendor or importer to be processed through the already-existing procedure

whereby a customer picks up the order at a state-owned liquor and wine retail

store.

34. Thus, a licensed vendor or importer could complete any desired

purchase and sale to a prospective customer.

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 35. On March 16, 2020, however, the PLCB suspended special orders

“indefinitely” in light of Governor Wolf’s then-impending closure of the state’s

Fine Wine and Good Spirits stores.

36. On March 18, 2020, Governor Wolf issued an order (the “Closure

Order”) closing all “non-life-sustaining businesses” in an attempt to mitigate the

spread of the COVID-19 pandemic.

37. In conjunction with the Closure Order, the Governor’s Office issued a

list identifying all “life-sustaining businesses.” Restaurants open for take-out and

delivery were deemed life-sustaining, as were wine wholesalers, while

Pennsylvania’s state-owned liquor and wine retail stores, controlled by the PLCB,

were not.

38. In light of these determinations, restaurants who are permitted to sell

take-out wine under a PLCB-issued Wine Expanded Permit are unable to restock

their supplies. This includes restaurants and retailers who rely on the inventory

supplied by Plaintiffs.

39. The Legislature has enacted a scheme by which Wine Expanded

Permit-holders can restock their supplies, but the PLCB has flatly refused to

comply with its statutory duty to implement this scheme.

40. To qualify for mandamus relief in Pennsylvania, a plaintiff must show

a “direct and substantial interest,” and there must be a “sufficiently close causal

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connection” between the government’s failure to act and the injury suffered, so as

to render the injury “immediate rather than remote.” Nader v. Hughes, 643 A.2d

747, 753 (Pa. Commw. Ct. 1994) (internal citations omitted).

41. This requirement for mandamus relief dates back to common law

England—there must be “special injury to the plaintiff, who must show that he,

himself, suffered a special and peculiar injury by reason of the failure to perform

the duty.” Butcher v. Civil Serv. Com’n of City of Phila., 61 A.2d 367, 368-70 (Pa.

Super. 1948).

42. In light of the PLCB’s failure to comply with Section 305 of the

Liquor Code, Plaintiffs’ businesses have been seriously harmed, and their claim for

mandamus relief ripened on March 16, 2020.

III. Plaintiffs are Licensed Vendors Entitled to Directly Deliver Wine to

Customers

43. Plaintiffs are licensed to sell wine pursuant to a vendor license held by

T. Elenteny Imports LLC, license number 22209.

44. Under the express terms of Section 305 of the Liquor Code, as

amended by Act 39, Plaintiffs are entitled to deliver special orders for their wine

directly to customers:

A licensed importer or a licensed vendor may place

special orders on behalf of customers and may deliver the
orders to customers. The orders do not need to come to
rest at a store, but delivery may not occur until payment
for the order has been forwarded to the board and the
-9-
 board has authorized the delivery of the order. A
handling fee may not be assessed by the board on an
order delivered directly to a customer. Liability for
special orders that do not come to rest at a store, shall,
until the order is delivered to the customer, remain with
the licensed importer or licensed vendor that placed the
order on behalf of the customer. The board shall, by
January 1, 2017, implement a procedure for processing
special orders which do not come to rest at a store. The
board may continue to accept special orders at its stores
even after the procedure is implemented.

47 P.S. § 3-305(a) (last amended January 17, 2017).

45. Plaintiffs are legally entitled to deliver their product directly to

restaurants and businesses with Wine Expanded Permits under 47 P.S. § 3-305(a),

as amended by Act 39, but the PLCB has refused to perform its duty to “implement

a procedure for processing special orders which do not come to rest at a store.”

46. On April 5, 2020, Plaintiff MFW Wine Co., LLC requested

clarification from the PLCB as to whether a procedure for direct delivery would be

implemented in light of the closure of the state-owned Fine Wine and Good Spirits

stores.

47. On April 6, 2020, the PLCB responded that direct delivery of special

orders “is not permitted at this time.”

48. If the PLCB is not compelled to perform this legally mandated duty,

Plaintiffs and many other wine vendors and importers will continue to suffer

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significant harm to their business—a business that the Legislature intended to

promote by enacting Act 39.

COUNT I
MANDAMUS

49. Plaintiffs incorporate paragraphs 1 through 48 as if set forth fully

herein.

50. Under Section 305 of the Liquor Code, the PLCB was required, by

January 1, 2017, to “implement a procedure for processing special orders which do

not come to rest at a store.” 47 P.S. § 3-305.

51. The PLCB’s deadline to perform this duty was extended to June 1,

2017. 72 P.S. § 1799.2-E.

52. As of the date of the filing of this Complaint, the PLCB has not yet

performed this mandatory duty.

53. Plaintiffs are licensed to sell wine to customers in Pennsylvania.

54. As such, Plaintiffs have a clear legal right to enforce the performance

of this duty—indeed, “licensed vendors” and “licensed importers” are specifically

named throughout Section 305(a) as an intended beneficiary of the creation of the

PLCB’s duty. 47 P.S. § 3-305.

55. Defendant has a corresponding duty to perform, as Section 305

expressly states that the PLCB “shall” implement a direct delivery procedure.

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 56. Plaintiffs have no other adequate or appropriate remedy to secure the

relief it seeks.

57. Plaintiff MFW Wine Co., LLC requested performance of this

mandatory duty directly from the PLCB, but this request was denied.

58. Plaintiffs have suffered monetary damages in the form of lost revenue

and lost profits as a direct result of being aggrieved by the PLCB’s failure to

perform its duty.

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment

in its favor and grant the following relief:

a. Award monetary damages in favor of Plaintiffs and against

Defendant, under 42 Pa.C.S. § 8303, in an amount to be proved

at trial;

b. Issue a Writ of Mandamus directing Defendant PLCB to

immediately implement a procedure for processing special

orders which do not come to rest at Commonwealth-owned

wine and liquor retail store; and

c. Award Plaintiffs costs, attorneys’ fees, prejudgment interest,

and such other relief as the court deems just under the

circumstances.

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 COUNT II
SPECIAL OR PRELIMINARY INJUNCTION

59. Plaintiffs incorporate paragraphs 1 through 58 as if set forth fully

herein.

60. Plaintiffs have suffered immediate and irreparable harm as a result of

the PLCB’s refusal to implement a procedure for direct delivery.

61. The PLCB’s duty to implement such a procedure is mandatory under

Section 305 of the Liquor Code. 47 P.S. § 3-305.

62. “A violation of a statute is per se irreparable harm for purposes of a

preliminary injunction.” Chipman ex rel. Chipman v. Avon Grove Sch. Dist., 841

A.2d 1098, 1105 (Pa. Commw. Ct. 2004).

63. Plaintiffs have a likelihood of success on the merits of their

underlying claim in mandamus.

64. With the issuance of an injunction, Plaintiffs will be restored to the

status they enjoyed prior to the PLCB’s violation of Section 305 and the PLCB’s

reliance on its erroneous legal interpretation of the duty to implement a direct

delivery procedure.

65. Greater injury would result if relief is not granted.

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment

in its favor and grant the following relief:

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 a. Issue a Special or Preliminary Injunction in favor of Plaintiffs

and against Defendant, enjoining Defendant from violating

Section 305 and from relying on the erroneous legal

interpretation set forth in LCB Advisory Opinion 17-307; and

b. Award Plaintiffs such other and further relief as this Court

deems just and proper under the circumstances.

COUNT III
DECLARATORY JUDGMENT

66. Plaintiff incorporates paragraphs 1 through 65 as if set forth fully

herein.

67. Under 42 Pa.C.S. § 7533, “any person whose rights or other legal

relations are affected by a statute,” such as the Liquor Code, “may have determined

any question of construction or validity and obtain a declaration of rights or legal

relations thereunder.” Unified Sportsmen of Pa. v. Pa. Game Com’n, 950 A.2d

1120, 1132 (Pa. Commw. Ct. 2008).

68. Section 305 of the Liquor Code confers on Plaintiffs the right to

directly deliver their product to consumers under a procedure implemented by the

PLCB.

69. The PLCB’s present interpretation of this statute erroneously

concludes that the duty to implement such a procedure is discretionary; however,

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the plain language of Section 305 of the Liquor Code clearly indicates that this

duty is mandatory. 47 P.S. § 3-305.

70. In light of the PLCB’s failure to comply with Section 305 of the

Liquor Code, Plaintiffs and other licensed vendors are currently unable to supply

their customers, despite those customers’ status as life-sustaining businesses under

the Closure Order.

71. Plaintiffs are therefore suffering an immediate and present harm and

an actual controversy has arisen between Plaintiff and the PLCB.

72. Plaintiffs’ immediate and complete loss of all business as a result of

the PLCB’s erroneous interpretation of its duty to implement a direct delivery

procedure, in light of the Governor’s Closure Order, amounts to a direct,

substantial, and present interest in the proper construction of Section 305.

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment

in its favor and grant the following relief:

a. Declare that the PLCB has a mandatory duty, under Section 305

of the Liquor Code, to implement a procedure for processing

special orders which do not come to rest at Commonwealth-

owned wine and liquor retail store; and

b. Award Plaintiffs such other and further relief as this Court

deems just and proper under the circumstances.

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Dated: April 15, 2020
MONTGOMERY MCCRACKEN
WALKER & RHOADS, LLP

By: s/ John Papianou

John Papianou
Joseph E. Samuel, Jr.
PA I.D. No. 88149/327645
1735 Market Street, 21st Floor
Philadelphia, PA 19103
(215) 772-1500
Email: jpapianou@mmwr.com
jsamuel@mmwr.com

Attorneys for Plaintiffs MFW Wine Co., LLC

and A6 Wine Company

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 VERIFICATION

I, Jason Malumed, hereby verify that I, as a member of Plaintiff MFW Wine Co., LLC,

am authorized to make this verification on Plaintiff’s behalf, and that the facts set forth in the

foregoing Complaint are true and correct to the best of my knowledge, information, and belief.

Dated: April 15, 2020 ______________________________

Jason Malumed, Member
Plaintiff MFW Wine Co., LLC
 CERTIFICATE OF COMPLIANCE

I certify that this filing complies with the provisions of the Case Records Public Access

Policy of the Unified Judicial System of Pennsylvania that require filing confidential information

and documents differently than non-confidential information and documents.

Submitted by: Joseph E. Samuel, Jr.

Signature: _____________________

Name: Joseph E. Samuel, Jr.

Attorney No.: 327645