431 Pa. 420 | Pa. | 1968
Lead Opinion
Opinion by
On January 14, 1966, the District Attorney of Philadelphia filed a complaint in equity to enjoin Tick, Inc. and certain individuals interested therein (appellants) from operating the Wheel Bar in Philadelphia as a restaurant wherein liquor and malt beverages were sold.
Following a hearing, the Court of Common Pleas (No. 7) of Philadelphia County, on April 22, 1966, found that appellants had conducted the bar-restaurant in such manner as to constitute a nuisance, entered a decree directing the abatement of the nuisance but allowed the Wheel Bar to remain open and continue in operation under a $10,000 bond. On May 18, 1966, the Commonwealth filed an appeal from that decree in this Court and, on June 29, 1967, this Court, in a per curiam opinion, held that the trial court had abused its discretion in not enjoining the operation of the premises as a restaurant licensed to sell liquor and malt beverages and we remanded the record to the court
The Commonwealth, on November 4, 1967, then filed an application in the court below for an immediate injunction padlocking Wheel Bar for one year in accordance with the mandate of this Court. Three months later — on February 6, 1968 — the court below entered an order enjoining the sale of liquor at the Wheel Bar for a period of one year.
On February 7, 1968, appellants appealed from the decree of the court below and the very next day — February 8, 1968 — the court below entered an order permitting the Wheel Bar to remain open pending the outcome of the new appeal.
On April 8, 1968, the Commonwealth filed a motion to dismiss this appeal on the ground of res judicata to which appellants filed an answer.
Two matters are now before us: (1) the validity of the position taken by the Commonwealth that the instant appeal must be dismissed because the same issues and parties were before us on the prior appeal and, by reason of our resolution of those issues, the
On the prior appeal, the issue was whether the court below had abused its discretion in not enjoining the operation of the Wheel Bar. In view of the findings of fact of the court below, which were supported by evidence of record and which led to the conclusion of the court below that appellants’ actions in the operation of this bar-restaurant constituted a nuisance, we held that the court below had abused its discretion in not enjoining the operation of the Wheel Bar and in permitting its continued operation under bond. See: Tich, supra, p. 125. Even the most cursory examination of our opinion in Tide, supra, will reveal beyond question that, when we remanded the matter to the court below for the entry of an “appropriate decree”, we contemplated the immediate entry of a decree enjoining the operation of this bar-restaurant. The court below correctly interpreted our remand order and entered a decree enjoining the operation of the Wheel Bar for one year.
In appealing from that decree, appellants now present two questions: (1) whether the court below, in consonance with our remand order, had the discretion to padlock the Wheel Bar for a period less than one year; (2) whether the court below, in fashioning an “appropriate decree” in compliance with our remand mandate, had discretion to hear and consider evidence that the nuisance had been abated and that the operation of the bar-restaurant had been exemplary ever since the equity action was instituted, a period of over two years.
It was the duty of the court below, on remand, to comply strictly with our mandate and such compliance required the court to proceed in a manner consistent with the views expressed in our opinion and in accordance with the terms of the statute which empowered padlocking of premises. See: Haefele v. Davis, 380 Pa. 94, 110 A. 2d 233 (1955).
On this appeal, appellants next contend that, upon our remand and in order to fashion an “appropriate decree”, the court below had discretion to hear and consider evidence that the nuisance had been entirely-abated and that such abatement had continued for over two years. To the very same question (although, of course, the time during which the nuisance had allegedly been abated was of shorter duration) this Court addressed itself on the prior appeal. In Tick, supra, p. 125, we said: “Nor was the court justified in suspending the applicable law because the owner of the Wheel Bar had endeavored, in some manner, to abate the averred nuisance after the suit in equity had been filed.”
Even if this issue had not been resolved on the prior appeal, we would be constrained to affirm the action of the court below in refusing, after our remand order, appellants’ offer of proof of good behavior in the period between the date of institution of suit and the date of our remand order. It is true that, under certain unusual circumstances, a court, after a remand order, may hear evidence of changes in circumstances or situations (46 S. 52nd St. Corp. v. Manlin, 404 Pa. 159, 160, 172 A. 2d 154 (1961)), but such circumstances did not exist in the case at bar. Furthermore, even if appellants did prove that the operation of Wheel
It is hornbook law that issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered on a second appeal. See: Delaware River Port Authority v. Pa. P.U.C., 408 Pa. 169, 182 A. 2d 682 (1962); Ondovchik v. Ondovchik, 421 Pa. 20, 218 A. 2d 578 (1966). The issues which we resolved on the prior appeal are identical with the issues now sought to be raised on this appeal, although couched in slightly different verbiage, and our determination of the prior appeal lias become the law of this case. We are satisfied that the instant appeal must be dismissed.
This litigation lias been unduly prolonged and must be concluded. Even though appellants7 operation of the Wheel Bar was declared to constitute a nuisance by the court below almost two and one-half years ago and even though almost a year ago this Court directed the entry of an “appropriate decree77 which would enjoin the operation of the Wheel Bar, appellants continue in the operation of this bar-r están rant. The mandate of this Court has not and is not being followed. In 46 S. 52nd St. Corp., supra, p. 160, we said: “. . . proper consideration [has been given] neither to the rights of the successful litigant nor to the mandate of our court.77 Such language vividly depicts that which has taken place in this litigation.
Decree affirmed. Appellants to pay costs.
It must be noted that appellants’ counsel at the hearing made an offer of proof in order to show that, since the time of the original decree by the trial court, the nuisance had been abated and no violation of the law had taken place for two years since the equity action was instituted.
Despite the fact that the court below was aware that the thrust of our previous ruling was that the Wheel Bar remain closed.
Act of April 12, 1951, P. L. 90, art. VI, §611 (c), 47 P.S. §6-611 (c).
In Haefele, supra, we said (p. 98) : “A lower court is without power to modify, alter, amend, set aside or in any manner disturb or depart from the judgment of the reviewing court as to any matter decided on appeal. . . . Under any other rule, litigation would never cease, and finality and respect for orderly process of
Cf. Com. v. Pendalli, 306 Pa. 186, 159 A. 20 (1932).
Concurrence Opinion
When this litigation was initially before this Court, I took sharp issue with the majority decision. See 427 Pa. 120, 125, 233 A. 2d 866 (1967). I still adhere to the views expressed in my dissenting opinion. However, the law of the case has been established by the majority vote of the Court, and, like it or not, this Court should now enforce its prior decision, the meaning of which was clear and beyond question. Any other action would lead to confusion and intolerable results.
I, therefore, concur in affirming the decree of the court below.
Dissenting Opinion
Dissenting Opinion by
This Court should not compound the error of its previous disposition of this case: Commonwealth v. Tick, Inc., 427 Pa. 120, 233 A. 2d 866 (1967) (Eagen, J., dissenting, joined in by Copien, J. and O’Brien, J.), by attempting to punish appellants under a “statute which was not intended to punish personal guilt.”
The United States Supreme Court has held that section 22 “authorizing an injunction is not punitive but preventive” in nature, Grosfield v. United States, 276 U.S. 494, 497 (1928). The Supreme Court further discussed the nature of the injunctive decree saying, “the decree must rest [on the ground] that the premises ought to be closed for a period long enough to end the probability of a recurrence of their unlawful use.” Grosfield v. United States, supra, at 499. The remedy there is fashioned by likelihood of the continuance of the nuisance rather than an inflexible one year standard in the nature of punishment. The language above is very close to that used in United States v. Studio Club, 12 F. 2d 462 (S.D. N.Y. 1926). That case was modified in United States v. Pepe, 12 F. 2d 985 (2d Cir. 1926), which was cited by the Supreme Court in Qrosfield, supra. In Studio Olub, supra, the decree closing the premises under section 22 was for a period of six months. Since the federal statute after which our own was patterned permits an injunction'for less than a year, the majority is in error in straining the language of our statute to hold that the court below could not make a determination to enjoin the nuisance for a period of less than one year.
I further disagree with our Court’s interpretation of our mandate of “appropriate decree.” If, as the majority holds, there was but one decree that could
For this purpose the chancellor could hear evidence of abatement of the nuisance so that his decree would be just in light of the circumstances as they then existed
In Commonwealth v. Pendalli, 306 Pa. 186, 188, 159 Atl. 20 (1932), our Court has held similarly while allowing a padlocking since “the proof of abatement does not measure up in quantum and quality with the proof of previous existence.” This clearly shows that such evidence was to be taken and considered in fashioning a decree.
It is my opinion that our mandate of entering an “appropriate decree” encompasses more than a ministerial act by the chancellor and that our remand permitted him to fashion his remedy to the circumstances
I dissent.
United States v. Studio, 12 F. 2d 462, 464 (S.D. N.Y. 1926), modified sub nom. United States v. Pepe, 12 F. 2d 985 (2d Cir. 1926).
Act of April 12, 1951, P. L. 90, art. VI, §611 (b) and (e), 47 P.S. §6-611 (b) and (c).
Compare the following language of the federal act:
“An action to enjoin any nuisance defined in this title may be brought in the name of the United States by the Attorney General of the United States or by any United States attorney or any prosecuting attorney of any State or any subdivision thereof or by the commissioner or his deputies or assistants. Such action shall be brought and tried as an action in equity and may be brought in any court having jurisdiction to hear and determine equity cases. . . . And upon judgment of the court ordering such nuisance to be abated, the court may order that the room, house, building, structure, boat, vehicle, or place shall not be occupied or used for one year thereafter; but the court may, in its discretion, permit it to be occupied or used if the owner, lessee, tenant, or occupant thereof shall give bond with sufficient surety, to be approved by the court making the order, in the penal and liquidated sum of not less than §500 nor more than §1,000, payable to the United States, and conditioned that intoxicating- liquor will not thereafter be manufactured, sold, bartered, kept, or otherwise disIiosed of therein or thereon, and that he will pay all fines, costs, and damages that may be assessed for any violation of this title upon said property.” (Emphasis supplied), with our own act:
“(b) An action to enjoin any nuisance defined in this act may be brought in the name of the Commonwealth of Pennsylvania by the Attorney General or by the district attorney of the proper county. Such action shall be brought ... in any court having jurisdiction to hear and determine equity eases within the county in which the offense occurs. . . .
“(e) Upon the decree of the court ordering such nuisance to be abated, the court may, upon proper cause shown, order that the room, house, building, structure, boat, vehicle or place shall not bo occupied or used for one year thereafter, but the court may, in its discretion, permit it to be occupied or used if the owner, lessee, tenant or occupant thereof shall give bond with sufficient surety to be approved by the court making the order in the penal and liquidated sum of not less than five hundred dollars (§500.00), payable to the Commonwealth of Pennsylvania, for use of the county in which said proceedings are instituted, and conditioned that neither liquor, alcohol, nor malt or brewed beverages will thereafter be manufactured, sold, transported, offered for sale, bar
In both Grosfield, supra, and United States v. Phoenix Cereal Beverage Co., Inc., 65 F. 2d 398 (2d Cir. 1933) there were modifications to the original decree based on post-trial circumstances. In the later case the circumstances changed between the first and second appeals to the second circuit and this formed the basis for the modified order.
Dissenting Opinion
Dissenting Opinion by
Since the nuisance in this case has been abated, I see no reason, in law or in justice (unfortunately not always synonymous) why the injunction should continue.
