*1 120 Pa. at procedural case.” 417 this is such a right, 207
365
A. 2d at 809 n.13.
n.13,
Petitioner
the doctrine
insists
under
that,
v.
372
Ct. 814
Douglas
U.S.
83 S.
California,
on
he was
(1963),
deprived
assistance of counsel
rel.
appeal
that our decision in Commonwealth ex
Fink v.
423 Pa.
222
717
Rundle,
A. 2d
demonstrates that he did not waive
to appeal.
his right
wheth
the trial court for a
as to
Remanding
hearing
petitioner
er the
had waived
of counsel
assistance
we held
Fink that
be
appeal,
colloquy
the short
tween court and prisoner was
to remove
insufficient
By
possibility
waiver was unintentional.4
replete
record
the instant
contrast,
indicia clearly
petitioner’s waiver-de
demonstrating
liberate
of his
Common
bypass
right
appeal.
See
wealth ex rel. Harbold v.
362-64 nn.9
Myers, supra at
207 A. 2d
v. Wal
nn.9-12;
807-08
Commonwealth
Har
427 Pa.
Mr. part Justice took no the consideration Cohen of this decision case. 4 carefully In Fink noted the we manifest distinction between colloquy trial in Harbold’s and that Fink between Rundle, supra Commonwealth ex rel. Fink v. at trial court. See n.4, at n.4. 222 A. 2d 718 Appellant, v. Tick, Inc.
Commonwealth, *2 J.,C. Before Bell, 1966. Argued November and Rob- O’Brien Eagen, Cohen, Musmanno, Jones, erts, JJ. October 1967.
reargument refused with him David L. District Attorney, Specter, Arlen Attor- Assistant District Davis, Alan J. and Creskoff First Assistant District Sprague, A. Richard and neys, appellant. Commonwealth, for Attorney, him Lawrence E. Mann, Kirsch, R. Theodore Goodis, Karim & Stern, Greenfield, Mann, M. Peter appellees. Opinion June 1967: Per Curiam, filed a com- Philadelphia The District Attorney in this plaint to the defendants Ave- at Susquehanna operating licensed as the Wheel as a restaurant nue, known proceeding of liquors the sale and malt beverages, April under the Act of P. L. 12, 1951, averred that complaint to conducted maintained in a manner as bois- constitute a nuisance in that it permitted loud, terous misbe- noises and encouraged disturbances, with- havior, stabbings and fights, cuttings pub- out the permitted patrons subject premises, lic to and vulgar verbal abuse the form of obscene permitted sales language, *3 in an intoxicated prem- and maintained the condition, in a ises such an to constitute unhealthy manner as menace to public the health.
Preliminary objections filed the defendants overruled and the case went on which hearing, lasted six days. After the tes- considerable taking the Court facts: timony, inter the found, alia, following “Although porter the bar who employed by cleans the thoroughly inside the tap- and outside of room premises every before bar morning opens, stops who back once or twice a in- sweep day side of the the bar and facilities premises, its lavatory become dirty many hours business continuous because traffic of heavy customers. of men in
“Groups gather front of the Bar Wheel and remain on a basis daily there from morn- the early until the late evening early hours of morning following day.” “A the group number of of men in gathered front Bar of the Wheel were visibly intoxicated. in
“Those front of gathered the Wheel Bar loud, are noisy constantly boisterous use vile and ob- resi- scene to the language annoyance peaceable dents nearby.
“Those in gathered front of the Wheel Bar address females, stantly passing males pedestrians, in an obscene manner.” appre-
“Female public members of the traveling hensive using public passing highway Wheel Bar.” persons
“Numerous in front of the Wheel standing Bar have filled glasses wine in their and bottles beer hands.”
“The wine glasses held outside of by those Bar Wheel are the same utilized for sale glasses of wine within the Wheel Bar.”
“Visibly intoxicated nu- persons have been seen on merous occasions Bar.” leaving
“The owner of the Wheel Bar knew of the condi- tions existing Bar.” immediately outside the Wheel owner the Wheel Bar has never called police those concerning gathered front of prem- ises.” police
“When the do per- arrive to arrest sons outside the Wheel some those enter the Wheel Bar to avoid arrest.”
“The patrons of the Wheel Bar the premises used regularly obscene and vulgar language.” “On September of the Wheel was maintained condition.” filthy, unsanitary *4 1965 premises “On October 8, Bar the Wheel maintained was filthy, unsanitary condition.” 1966 January premises “On of the Wheel Bar filthy and unsanitary.” was 1966 the January premises
“On Bar Wheel filthy unsanitary.” 1965 September 19, “On visibly intoxicated per- alcoholic served beverages by son was the Wheel Bar.” 124 person intoxicated visibly
“On October 1965 a Bar. the Wheel alcoholic beverages by was served per- intoxicated visibly three “On 1966 January 7, Wheel beverages by alcoholic sons were served Bar. per- intoxicated visibly 1966 seven
“On January 8, Wheel beverages by served alcoholic sons were Bar.” Wheel 1966 the bartender
“On January 14, intoxicated. visibly Bar was per- intoxicated January eight visibly “On beverages alcoholic drinking sons observed Bar.” the Wheel court announcing
After these fact, law: inter following alia, filed, (47) . P. L. 90, “The Act of . . April §611 12, 1951, basis proper are and the common law (P.8. §6-611) prohibit an injunction suit to sustain an malt of a for the sale building alcoholic, the use beverages. brewed busi- conducted
“Respondents frequently have Bar to boisterous permit at the loud, ness Wheel nuisance and disturb- noises to the common unseemly Liquor violation of the neighborhood ance Article P.S. I, Code, 1419 Sus- have maintained “Respondents un- Philadelphia, Pennsylvania Avenue, quehanna Article to constitute a violation of manner as sanitary Liquor (47 Code P.S. §1-102 I, §107 ‘Restau- rant’ ). have occasion alcoholic served
“Respondents visibly violation of the Liquor Code, YI, Article §493 §4-493(1).” was a causative operation rights of persons interfering residing
factor area who entitled to immediate peace, quiet, in the *5 safety language freedom from offensive the area part duct frequent those Vinos’ who outside of the Wheel Bar. but es- operation prior to period through
pecially during September 1965 in January 22, 1966 constitutes a as defined nuisance Pennsylvania Liquor Control cited above.” Act, In spite these of fact and the court did not law, operation of Wheel Bar. it nuisance entered decree Instead, ordering to be abated.
After studying the that we conclude record, action court cannot in supported be or law we find fact, the court abused its discre- tion its reaching decision. It not to enough was place the owners the Wheel Bar to obey under bond the Liquor Code since all are under bond licensees up requirements live to the proclaimed the code. by Nor was the court justified in suspending applica- ble law because the owners of the Wheel Bar had en- in some deavored, manner, abate the averred nui- sance suit equity had been filed. Although the appellees argue strenuously they cannot be held liable what occurred outside their premises, the evidence is clear and, so found indeed, the trial by there court, was a causal relationship between situation deplorable outside the premises and what on inside the went Wheel Bar.
Reversed record remanded for entering appropriate decree, each party to pay own costs. Opinion
Dissenting Eagen Me. Justice : This action instituted under pro- the Liquor Code, Act of April visions L.P. amended, as statute pro- part that any in relevant building place vides (ex- liquor, eept private residence) alcohol wherein *6 the possessed in violation or sold malt Liquor if existence the nuisance; and a common Code is disc “in its court the established, a nuisance is possession al enjoin may sale and retion”1 occupancy premises; and use cohol on the period purpose one premises any for the for the pro year; permit occupancy to continue the use and viding penal not less in the sum that a bond is filed upon no further fact that than conditioned the $500, occur. violations the act shall complaint included several The in the instant case allegations not sub- serious evidence did which the hearing, it became And stantiate. extensive problem apparent principal concerned that the which presence neighborhood the residents of the the many the near and streets drunks sidewalks constantly passers-by with who abused and action. word and whose chancellor, approved subsequently by banc, the court en deplorable before, that the described
found condition, neighborhood, existed all over the immediate present years took owner of the Wheel Bar before management; present man- internal over “provides very agement Wheel Bar little source neighbors”; annoyance to the that “the real and, from emanates” drunks and who “winos” nuisance city purchase over from all wine come Commonwealth-operated liquor nearby store and who openly congregate imbibe the wine from the then Movies the street. introduced evidence bottles persons coming liquor out of showed purchased groups gath- therein and bottles store waiting their turn to street obtain in the a drink ered bottles. Emphasis supplied. p.S. (c). §6-611 1 47 The chancellor concluded that to hold the manage- ment of the licensed premises responsible ditions existing which emanated from street, operation of the liquor store, Commonwealth’s own would be rank injustice. he found However, since certain Code Liquor enumerated violations of the had occurred within and on the licensed a nuisance as defined the statute did exist. But, exercising discretion clearly given by statute, the chancellor decided against the severe imposing sanctions permitted statutorily and ordered the filing of a bond in the sum of no fur- |10,000, guarantee ther violations would ensue or be tolerated. The con- *7 clusion against the imposition of a more severe penalty took into account: that (1) the licensee had operated similar businesses many at other years locations with an unblemished record; (2) that business premises involved purchased in 1964 and with improvements, which included rebuilding renovat- both the ing interior and exterior, investment ex- ceeded f60,000; that could be not used for another commercial purpose without a further expenditure. substantial
It is fundamental for this Court to rule the trial court abused its it discretion, must ap clearly from the pear record that the law was overridden or or the judgment misapplied, entered was un manifestly or was the result reasonable, ill bias or partiality, See v. Mielcuszny will. Rosol, 317 Pa. A. 236 (1934). examination of
After an I record, personally am persuaded not such an abuse of discretion oc- court below. curred I would analogize the
Finally, instant situation to trial judge one wherein sentences a defendant follow- for violation of conviction criminal statute, marrow, to its cut precisely what this for violation involves, viz., punishment sentence If law. the trial a defendant sentences judge punishment prescribes limits statute but not punishment allowed, does impose maximum Court com- appeal would this even entertain an plaint by attorney punish- district asserting ment imposed not as severe as it should been? have would this Court on Or, further, appeal change sentence and a more one? I impose personally severe know of no precedent until this never and, case, I even assumed “live to would see the day”.
I dissent. Mr. Justice Cohen and Mr. Justice O’Bbien join opinion. this dissenting
Lower Merion Township, v. Appellant, Inc.
Enokay, Neighborhood Club Bala-Cynwyd, Appellant, v. Enokay, Inc.