*1 on tlie equitable principle plaintiff should recover twice for the same wrong.
Order affirmed.
Concurring Opinion Benjamin E. Mr. Justice Jones: I
"While believe that in the present posture law the result reached of this Court majority I inequi- believe that correct, yet the result strongly table and unfair. The found jury Dickey Brown liable to the equally injured result person: under the reached Brown must li- pay discharge equal more than of the amount of ability the verdict, 90% most To shocking situation. correct such a situation appropriate legislation required. Bell
Mr. Justice joins opinion. in this Brodsky, Appellant. Reid v.
Argued April 1959. Before Bell, Musmаnno, Cohen Jones, JJ. McBkide,
reargu- ment refused December 1959. *3 Moonblatt,
Laurence with him H. Samuel Eldredge, for appellants. Bulloch,
Leonidas A. him Mattheiv with W. Allen, and Bulloch and for appellees. Jr., Allen, by Benjamin
Opinion Oc- Mb. E. Justice Jones, tober 1959: questions: (1) appeals present principal
These two duly a enjoin should a court of the of equity residential in a taproom-restaurant licensed located indecent conduct district of noise and because unseemly prem- outside the licensed patrons on the of its part immediate neighborhood do residents in the ises?; (2) peacefully to the taproom-restaurant right the have of dissuading and purpose for the of picket discouraging such restaurant? from public patronizing the of sev- operator owner Appellant Brodsky, and/or purchased eral licensed restaurants Philadelphia, and Street 3620 North 19th as premises the known Pacific and of 19th the corner located at northwest Phila Tioga-Nicetown section of North the Streets in taproom-restau delphia purpose operating a for the of beverages liquor or brewed rant and malt wherein premises. consumptiоn Brod the on would be sold for of permission zoning sky authorities from the secured Pennsylvania Philadelphia1 City the the and from of a the transfer of Control Board for liquor connection location.2 In license to this new remodeling purchase and premises, the the improvement building the transfer liquor spent approximately $50,000.3 license, on taproom-restaurant opened business appellees Immediately March thereafter 1958. opposition began to indicate their continued have taproom-restaurant premises to a the use of the as picketing signs resi- display their on public patronize urging restau- dences not to picketing display signs resulted rant. This has appellants’ a re- to loss financial loss business, receipts gross weekly flected in reduction of during during elev- the first week $1,000 $125 operation. enth week taproom-restaurant opening
Prior
of this
appellees
resi-
and on March
18, 1958,
—-individual
approval
zoning
authorities
The fact
given
affect
the establishment of this restaurant
does not
*4
enjoin
power
equity
v.
as a nuisance: Mazeika
court of
142;
Co.,
191, 194, 195,
American Oil
383 Pa.
118
2d
Perrin’s
A.
Appeаl,
51,
42,
305 Pa.
467 neighborhood acting behalf the on their dents of own equity and on behalf residents —instituted an of other Philadel- action No. 6 of in Court Common Pleas taproom- phia enjoin opening County to the theory anticipatory restaurant the of an nuisance. taproom- During proceeding pendency of that opened appellees filed restaurant then business and opera- complaint upon theory an amended that the taproom-restaurant tion of the constituted under circumstances a dis- nuisance in fact. Prior to position appellants proceeding Brodsky that equity Lane Inc.4 which instituted an action Bar, sought appellees picket- boycotting to restrain ing еquity the restaurant. Both consoli- actions were hearing, dated for trial after final the court be- and, enjoined op- low entered two decrees: one decree taproom-restaurant eration and the decree other complaint equity sought dismissed the to re- which entry boycotting picketing. strain the Prom the appeals of both decrees these were taken. appeals recognize determining these we
operation liquor aof or malt beverages duly brewed are licensed Penn- sold, sylvania Liquor Control a lawful business Bоard, though even located in and, a residential district, p. not a nuisance per se: 46 “Nuisances”, C.J. §265, p. (2), 722; C.J.S. 822. “Nuisances”, Unless §75, particular taproom-restaurant of business constituted a nuisance in it cannot and fact enjoined. should not be therefore, inquiry,
Our initial tois determine wheth- proof supports er the of record the conclusion entirely record, appear While not clear of it would Bar, Inc., corporation sold his interest to Lane in which Shirley Wilbert principal E. Martin and Martin were the stock holders.
468 a operation of this taproom-restaurant constituted nuisance fact. in to adhere this are we bound pursuing inquiry
to the
fact
rule that
well-recognized
findings
en
made
a
court
chancellor and
by
approved by
are
findings
banc
appeal
on
such
controlling
provided
are not
errone
supported
are
manifestly
evidence,
ous and
were
and
made:
arbitrarily
capriciously
Oreovecs v.
382 Pa.
114 A. 2d
O’Neill
126;
Merics,
56,
v.
376 Pa.
A. 2d
Teats
103
v. Ander
909;
Keegan,
606,
358 Pa.
296
31;
A. 2d
Burke v.
son,
Harkins,
Pa.
The chancellor inter found, alia, (1) op- a restaurant owner and pellant longtime Brodsky, never has bears an excеllent and reputation erator, law; control been cited for violation of the liquor certain minor the area in which (2) exceptions, resi- taproom-restaurant exclusively is located occupied per- dential; (3) predominately area, resi- of the colored is a conservative sons race, quiet, well-kept dential with well-built and neighborhood, constitutes an environment conducive and homes, one suitable quiet peaceful living, particularly dis- to raise of this area is a south children; (4) a con- area” wherein trict sometimes termed “jungle wherein prevail slum conditions gested living juvenile a incidence of there exists vice and crime, high attracted patrons delinquency; (5) majority come the so-called to this from taproom-restaurant area”. “jungle found chancellor then period approximately over taproom-restaurant its part conduct resulted in on had weeks
eleven character destroy threatened patrons which community. and residential peaceful hitherto quiet, intoxi- an left entered and Patrons unseemly both cated loud condition; noise, *6 juke patrons emanated its and its on occasions box, depart- persons from the restaurant intoxicated itself; neighborhood ing proper- the restaurant from utilized alleys purposes; vulgar ties and for toilet and obscene, entering profane patrons employed language was departing the immoral restaurant; indecent, place parked vulgar took conduct in cars outside porch vicinity the on one a occasion in the restaurant; contraceptive utilized de- was for sexual misconduct; vices were found sсattered in and about the on area; patrons engaged the occasions in altercations outside taproom. only Not front did such conduct occur in neighborhood in adult residents of the but at times passed presence of children who en parochial public a route to and from both and a school neighborhood. located in replete
Our examination of this record—a record part tap- testimony as to conduct on the patrons shocking repugnant to room-restaurant persons decent sensibilities of full and cоm- —finds plete justification support findings respect. significant highly in this It chancellor is depicted by testimony place the conduct took over period a during day- of almost eleven both weeks, nighttime, time and was of such nature that escaped appellants’ yet could not have attention, appellants’ part indicates record no action on cor- prevent rect or the occurrence of such conduct.
In Hannum et et 346 al. v. Gruber Pa. al., 31 A. 2d “‘It we said: been a 99, 102, has said that “fair test as a whether or business lawful in itself, particular proрerty, a use is constitutes a nuisance, conducting the reasonableness or unreasonableness of making property the business or the use of the com plained particular locality of in the and in the man-
470 ner of the case.” ’: and under the circumstances ‘Whether the use C. J. 655. It has also been said: and varied depends reasonable upon many generally A rule the subject. facts. No hard and fast controls of facts use that would reasonable under one set another. What is reason- be unreasonable might under times, and at other able is sometimes question law, fact. one fact conclu- question particular No facts from all the but inference is be drawn sive, use proved fact exists controlling whether 656.” unreasonable/: C.J. taproom-res- Appellants’ use of property locality unreasonable purposes taurant *7 It should and under the other circumstances involved. that establishment appellants have been obvious the residential quiet this taproom-restaurant resi- the interfere with would neighborhood seriously en- appellees’ dential character of the area and with unani- of their The properties. practically joyment all the this district mous of residents of opposition out- at the appellants have evident to the should made taproom-restaurant set patronage that whatever areas. other have come from would enjoy would it became the taproom-restaurant Once began that came from con- patrons evident of its many had that the taproom-restaurant slum area and gested become a of attraction to whose persons magnet many conduct to those standаrds of were completely foreign of neighbor- of residents law abiding decent, tap- of this patrons hood. The conduct public not but offend sensi- help room-restaurant could this of the char- bilities of the residents area, destroy and interfere of seriously acter neighborhood homes. of their enjoyment appellees’ of- of if not argue Appellants most, all, not took hut place within, conduct without, fensive appellants premises such conduct and for responsible. should not held the establish- be Until pub- ment of this restaurant area offensive in the such lic conduct was it was the establishment unknown; those business within this area which attracted persons disgusted the whose conduct so mortified and neighborhood. in- residents which factor troduced this conduct into the area the establish- taproom-business ment for of this with its attraction arguendo, assuming undesirables from other areas; appellants their could not control the conduct patrons premises, outside the for is that excuse the continuance in establishment business responsible solely primarily whose existence is persons neighborhood the attraction of those into this property whose conduct so offends the morals of the appellants Assuming owners situated therein? patrons, could control the conduct of their is this brings by way business which into the area of attrac- persons reprehensible tion those whose conduct is permitted operated simply to be been has because it given respectability legality by an aura is- liquor suance aof license? The conduct has peace quiet disturbed the of this residential area appellees affronted sensibilities of endeаvor- *8 ing to maintain in this area a urban clean and decent, wholesome environment in to live rear their which operation directly families resulted from the of this taproom-restaurant. practical only in The manner protected area this can be from this unwhole- through operation some is conduct a cessation of the of this business. jurisdictions presented prob
Other similar reached have almost identical Barrett lems, results: Lopez, v. 57 N.M. 262 P. 2d et al. Johnson 697, 981; (La. App.), Nora v. 87 So. 2d Lawson Arkansas 757; v.
472 10 et al. v. Asher, Green 585; S.W. 2d 288
(Ark.),
156
Kissel v.
286;
Lewis,
11 S.W.
Rep.
L.
1006,
Ky.
Ind. 43,
137
v.
478;
Stehlin,
59 N.E.
Haggart
Ind. 233,
La. Ann.
47
Koehl v. Schoenhausеn,
N.E. 997;
35
P. 2d 569.
et
80
(Okla.),
v. Dale
al.
Sipe
taproom-restaurant dis- us to determine the legality picketing objective picket- The appellees. of signs by play of the restaurant— cessation ing—the purely determined would be been having judicially academic to discussion of the engage legality which has now ceased. picketing to No. 693 March decree entered Term, from the decree appeal is affirmed and entered March 1958 is dismissed as moot. No. Term, took Mr. Justice Jones and Mr. Justice Bok Chief in the consideration or no decision of this case. part Dissenting Opinion Mr. Justice McBride: This case involves appeals. two No. 101 Appeal proprietors from the decree *9 operating the court perpetually enjoining them from despite liq- granted having their been Liquor by uor license Control Board. The second appeal, No. is from the action of the below 102, court refusing appellees boy- picketing restrain cotting their restaurant.
The decision of this Court treats if the matter as only it were one having cаse con- and, answered the says tentions in No. unnecessary that it is 101, to dis- cuss the agree contentions in 102. No. I do not disposition. separate appeal This is a and must passed upon. any- There does not seem to me to be thing in the justify record would our dismissal being of it as picketing moot. The boycotting going during on even hearing final in the court below. premises question
The is located in an A-Com- mercial zone permitted. and in such zone a restaurant is plaintiff, Tioga-Nicetown The League, Civic as- is an persons residing approxi- sociation of within an area of square mately adjacent one mile to the restaurant. appear It immediately would following Brod- sky’s application for the transfer of the restaurant liquor present license to its neighbors, in- location the cluding presented plaintiffs, objections their Liquor objections Control per- Board. Those were sonal to but were based the fear patrons got owner could not they control once out- premises. Liquor side the The Control follow- Board, ing our decision Obradovich License Case, required 386 Pa. 126 A. 2d 342, held that was grant apрroved. law the transfer and so it was opened ap- The restaurant March 1958 with an proximately |35,000 premises investment in cost improvements. original complaint plaintiff, filed Bur- Individually Tioga- netta and as Reid, President of the *10 1958, on March filed Civic was League, Nicetown recited opened restaurant was and before the even as open to the premises that defendant was planning the taproom “in nature a that its taproom very and defendant individual the authorized for and which con- will to at here in premises intends open question, . a nuisance.” public nuisance . and private stitute . that plaintiff the as theory says, complaint, that the not assumption “their case on the is based, indi- the operated would be taproom improperly by a nuisance.” but it is vidual defendant inherently Brodsky, not complaint only against This was directed joined but also the restaurant proprietor, individually, Plaintiff Board. the Control Pennsylvania Brod- complaint thereafter an against filed amended sole as defendant. sky opened appeared after the
Shortly signs various the Room porches Oppose Tap on “We reciting Block at & Pacific Sts. Don’t Patronize It. The 19th at same time commenced the Picketing Organization.” restau- without until and continued, interruption, been rant to close. was forced had Brodsky only to the restaurant but he his wife warned remove and telephone calls at at their received night anonymous home. The admitted plaintiffs boy- frankly express cott and purpose was for picketing to to close his restaurant compelling Brodsky up his business. destroy to 102:
As No. de appeal Boycotting picketing purpose pend upon primarily legitimaсy to accomplished them. sought Restatement, See also Watch Tower Tract See Bible and Torts, §765. v. 11 In Pa. A. 2d 147. Society Dougherty, the Watch Tower the decision that the defend case, or justified ants were their withdrawing patronage to do so and threatening others to like inducing do was based wise their legitimacy purpose. When a pickets union labor an for employer or purpose higher for recognition, wages, placards seeks to sup- tell the facts and public enlist is not for port, purpose the business destroy case jobs. would workers’ dеstroy where that is its purpose is unlawful. picketing In this case not a was means of com- picketing the nature municating dispute There public. no demand meet. There was noth- he could concede ing peace and there- thereby buy after his on business interfer- carry without further *11 The ence. fixed of to purpose neighborhood was extirpate this lawful to it completely. business, destroy
The law in
Pennsylvania
well
that peace-
settled
ful
for an
picketing
purpose
pro-
unlawful
be
may
injunction.
hibited
In
by
Sansom House Enterprises,
Inc. v.
&
Waiters Waitresses
382 Pa.
Uniоn,
480,
476,
115
2dA.
Chief Justice Steen
746,
said: “There is no
question but
where
that,
for
picketing
an unlawful
it is no
purpose,
as
longer protected
an exercise
of free
right
speech and may
enjoined.”
be
properly
Inc. v. Waiters & Waitresses
Anchorage,
383
Union,
Pa.
A.
547,
2d
551,
199,
step
Court
went
further
again
when,
speaking
Chief Justice
Stern,
it said: “Picketing
if
enjoined
one of
may
its ob-
jects is unlawful even
not
though
the sole object.” The
three
constitute
justices
who
present
have
majority
spoken
this Court
to the same effect. See Wortex
Mills v. Textile Workers Union
369 Pa.
America,
The were appellees of unlawful conduct guilty started when on or about they picketing April the intention to continue it until Brodsky’s busi- though the court destroyed, do ness to so even was maintaining For a nuisance. ruled that he not was denied should have reason alone Chancellor sought. equitable they That them the relief which ap- readily purpose picketing was unlawful reading parent cursory rec- most even ord. appellee decided “If the Reid Court
The was asked, picket- your you no continue there nuisance was would ing?”, Foster witness and she answered “Yes”. The matter the Court should find in this “If asked, you is no nevertheless intend that there nuisance, your picketing?”, “I intend he continue answered, period”. place neigh- picket One until leaves, carry picket Brodsky, told “Jew we’ll Punk, borhood you way you get another; out of here one or we’ll out; you bring you get first out feet or we’ll one out, we’ll possible.” picket way or feet first if A second another, police every night, need escort told “You him, gо just picket night, to home.” third cursed him one A going get “Brodsky, you of here we’re out and said, or crook.” hook persons composed theory later who *12 League, predecessor, as as its that the well Civic of the an un- mere existence restaurant'would attract persons say element. cannot Courts desirable neighborhoods may not from enter more undesirable purchase liquor duly ones from licensed desirable prevent League If this establishments.1 Civic can they simply of this lawful business because prevent persons they it can other com- do nоt like neighborhood ing they in their do to because live question they come the them. After is different. like aspect of the case It is this which troubles me. sympathetic deeply to the I efforts feel Civic neighborhoods League as all as other well properties maintaining their and the character of the neighborhood or miti- to eliminate and in their efforts cooperatively gate they nuisances as and to arise work police. gone they to the court below with the Had having own into their taken the without first law pre- opened the restaurant аnd thus hands before even good year con- a man old record vented operate having his to duct a fair chance from even upon might foot- a different case stand business, neighborhood ing. it to that the seems me However, slight anarchy. by a matter is infected touch of No purpose legislature may has laudable their be the how liquor operating, put licensing, control of traffic, Liquor suspension in the Con- revocation, licenses, having people neighborhood, trol Board. The protest failed to make their succeed becausе of the provision mandatory took Act Control hands. into their The violence that sub- law own sequently may partly well due came about have been patrons to the resentment of the of the restaurant recognized equitable picketing itself. The well principle equity equity he who seeks must do applicable peculiarly here. appeal
toAs No. 101: The decree of court lower patrons got solely they rests what the did before they they to the restaurant and also what did after presence left it. The court found that the beloAV op- under circumstances in it which restaurant, ig- constituted an offensive nuisance. I cannot erated, the fact that it never had a however, chance nore, boycotting picketing be otherwise. The commenced before the occurrence of misconduct said may to constitute nuisance and Avellhave been cause for such misconduct. While is clear that a proprietor may duty be under not to sell liquor persons and send them forth into the streets *13 they trespasses, that commit so will he nevertheless, degree high policing of cannot bе held the streets. depart- That police the function oí obviously trespasses ment commit such persons and as who v. in Molony before enter held premises his we they that there is 361 Pa. 64 A. 2d Pounds, 498, 504, the conduct of per- no on a tradesman to control duty not establishment. sons who have entered his yet Penn- liquor sale of is not an business in now outlaw proprietor privi- sylvania exercising and while higher a license is a liquor of restaurant under lege conduct than an decree of care in the of his business step I do see can not how ordinary equity merchant, exеrcise are the duties in and what essentially Equitable Board. Liquor Control prerogatives so is that the Liquor of Control power is statutory describes per- the court Although Board. below there entered the as patrons, sons who miscon- persons no that any guilty evidence leaving the restaurant or after duct before entering or that premises it on the liquor purchased consump- came about from an undue conduct offensive If such is the case liquor premises. tion Liq- remedied recourse be course, can, Board. uor Control Brod- to the Chancеllor’s respect finding
With appar- of the character who persons sky “permitted this area to establishments such in frequented ently pointed out may the Star patronize Dust”, ex- have violating could without not, law, he was or visibly unless person intoxicated, cluded any a or a person or habitual drunkard, or minor, insane, of ill person or was a intemperate habits, of known per- criminal or Such prostitute. a known repute, L. 90, Code P. specified are sons §493. cause of a nuisance it legal to be order “ a conduct be substantial the actor’s enough it is neces- harm”; about also bringing
factor *14 sary any intervening immedi- find that force which produced ately superseding not a cause: harm is present that §440. all In the Restatement, Torts, case, open caused did was a restaurant which nobody brought any about harm. All the harm was by intervening the activities of some forces, i.e., persons who the offen- visited this business. Most of part, sive conduct was criminal misconduct on their ordinarily intentionally criminal acts and tortious or operate superseding do Torts, as causes: Restatement, §448. pro- I do not see addition, how apart legal
prietor, being a cause of the nui- a restau- tortfeasor. The sance, negligent, rant not in an ultra- was itself reckless or proprietor hazardous inten- nor do I believe act, tionally unreasonably caused the harm to and complains. neighborhood Surely there which unreasonably proof Brodsky intentionally no and repeated wrong-way driving caused on 19th Street, porch alley, an sexual misconduct on a urination in and away. only a half-block Intentional harm occurs where purpose bringing result one acts with the about the knowing or one does an act which follows where conduct. harm will result from his certain Appellant puts hypothetical cases two Counsel Assume that de- to us. 1. reformed A, ex-convict, opens earning living, honest a delicatessen an sirous of Philadelphia. North 19th He be- store at 3620 Street, complete propriety, many for- but himself with haves prison characters mates and underworld come mer visitors, occasions some of these him. On various visit standing front of the delicatessen en- in store, while neighborhood shooting other. The gage at each in an greatly the influx of such undesirable disturbed engages brawling profanity, in element greater neighborhood fear of evil to come/ puts the delicatessen proprietor Would court hold to close a nuisance order him maintaining his doors and elsewhere? go a home neighbor- A in white purchases
2. negro live blocks dis- hood. elements ten white who Rowdy howl and yell tant on this house and converge en- visitors neighborhood. Negro greatly disturb pre- the whites endeavor to who gage fighting *15 Is the house. who negro vent them from entering lawful residential purposes, has the home for purсhased the conduct created a situation in which and thereby to offensive and persons disturbing of third highly a nuisance maintaining the neighborhood, guilty court to in his home? Would live new continuing to preserve to out in order neighbor- order him move ordered move the Chancellor as hood peace, out case? In such circumstances should objectionable limit itself court not controlling misconduct? lawful business the
To penalty visit disapproval extinction because seems community of the legislature flout the mandate and the de- me to Board acted ac- Control cision Obra- opinion this Court in the cordance with supra. dovich case, dissent.
I in this joins opinion. Cohen dissenting Mr. Justice Appellant, Claughton, v. Bear Stearns &
Company.