562 A.2d 1027 | Pa. Commw. Ct. | 1989
McCrae Boykins and Julie Herman (appellants) appeal an order of the Court of Common Pleas of Berks County (trial court) denying appellants’ request for preliminary injunction to enjoin the City of Reading, Warren H. Haggerty (Mayor), and Rodney Steffy (Chief of Police) from enforcing Bill No. 17-88. Bill No. 17-88 prohibits “the consumption or storage of alcoholic beverages on business premises not licensed by the Pennsylvania Liquor Control Board between the hours of 2:00 a.m. and 8:00 a.m. and the presence of any person or persons on said premises between the hours of 2:00 a.m. and 8:00 a.m.”
Appellants are owners/operators of a “bottle club”
On March 23, 1988, appellants filed a petition for a preliminary injunction and permanent injunction against the enforcement of the ordinance. A hearing on the petition was held on April 5, 1988, and testimony was taken. On April 6, 1988, an order was entered denying the request for a preliminary injunction. This appeal followed.
The trial court, in addressing the irreparable harm requirement, found that “plaintiffs have not made a showing of irreparable harm which could not be compensated by damages and, therefore, have not met the first rigorous standard for this court to grant a preliminary injunction.”
The Pennsylvania Supreme Court recently stated that the “[djefense of governmental immunity is an absolute defense ... and is not waivable ... nor is it subject to any procedural device that could render a governmental agency liable beyond the exceptions granted by the legislature.” Appeal of Tax Claim Unit of Northampton County, 522 Pa. 230, 232, 560 A.2d 1388, 1389 (1989), slip op. at 2, 3 (citations omitted). Because the instant matter does not fall within one of the exceptions to sovereign immunity, appellants will be unable to recover damages for loss of profits. The inability to be adequately compensated by an award of damages constitutes irreparable harm. Cosner v. United Penn Bank, 358 Pa.Superior Ct. 484, 517 A.2d 1337 (1986).
Because we decide only the procedural issue as stated, we reach neither the remaining prerequisites for a preliminary injunction, nor the substantive merits of this case.
ORDER
AND NOW, this 17th day of August, 1989, the order of the Court of Common Pleas of Berks County in the above-captioned matter is vacated and the matter remanded for proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
. Appellant defined 'bottle club" as "a place for people to gather together, bring their own drinks in, leave them there if they would like to” and where “we sell set-ups, soda, juices, potato chips, candy.” Appellants' ‘bottle club” had been operating for four (4) years and operated during the hours of 2:00 a.m. to 6:00 a.m. or 8:00 a.m.
. The trial court found that if appellants were successful on the substantive merits of the case, they could recover damages for loss of earnings.
. 42 Pa.C.S. §§ 8541 and 8546.
. The substantive questions raised include: (1) whether the trial judge erred in failing to find that there was a lack of evidence relating to Bill 17-88 to the health, welfare, and morals of the community; (2) whether the trial judge erred in failing to determine that Bill 17-88 was void, invalid, unreasonable, unconstitutional and unduly oppressive; and (3) whether the ordinance is preempted by the Liquor Control Board.