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REID v. BRODSKY (10/21/59)

October 21, 1959

REID
v.
BRODSKY, APPELLANT.



Appeals, Nos. 101 and 102, Jan. T., 1959, from decrees of Court of Common Pleas No. 6 of Philadelphia County, and Court of Common Pleas No. 2 of Philadelphia County, March T., 1958, Nos. 693 and 1736, in cases of Burnetta Reid, individually and as president of Tioga-Nicetown Civic League et al. v. George Brodsky et al.; George Brodsky et al. v. Burnetta Reid, individually and as president of Tioga-Nicetown Civic League et al. Decree (at No. 693) affirmed; appeal from decree (at No. 1736) dismissed; reargument refused December 30, 1959. Equity. Before FLOOD, J. Decree nisi filed in No. 693 perpetually enjoining defendants from operating business; and decree nisi filed in No. 1736 dismissing complaint asking injunction against picketing; exceptions to adjudication dismissed and final decrees entered. Defendants in No. 693 and plaintiffs in No. 1736 appealed.

COUNSEL

Laurence H. Eldredge, with him Samuel Moonblatt, for appellants.

Leonidas A. Allen, with him Matthew W. Bullock, Jr., and Bullock and Allen, for appellees.

Before Bell, Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Jones

[ 397 Pa. Page 465]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

These appeals present two principal questions: (1) should a court of equity enjoin the operation of a duly licensed taproom-restaurant located in a residential district because of unseemly noise and indecent conduct on the part of its patrons outside the licensed premises?; (2) do residents in the immediate neighborhood of the taproom-restaurant have the right to peacefully picket for the purpose of discouraging and dissuading the public from patronizing such restaurant?

Appellant Brodsky, owner and/or operator of several licensed restaurants in Philadelphia, purchased the premises known as 3620 North 19th Street and

[ 397 Pa. Page 466]

    located at the northwest corner of 19th and Pacific Streets in the Tioga-Nicetown section of North Philadelphia for the purpose of operating a taproom-restaurant wherein liquor and malt or brewed beverages would be sold for consumption on the premises. Brodsky secured permission from the zoning authorities of the City of Philadelphia*fn1 and from the Pennsylvania Liquor Control Board for the transfer of a restaurant liquor license to this new location.*fn2 In connection with the purchase of the premises, the remodeling and improvement of the building and the transfer of the liquor license, Brodsky spent approximately $50,000.*fn3

The taproom-restaurant opened for business on March 31, 1958. Immediately thereafter the appellees began and have continued to indicate their opposition to the use of the premises as a taproom-restaurant by picketing and by the display of signs on their residences urging the public not to patronize the restaurant. This picketing and display of signs has resulted in a financial loss to appellants' business, a loss reflected in a reduction of weekly gross receipts from $1,000 during the first week to $125 during the eleventh week of operation.

Prior to the opening of this taproom-restaurant and on March 18, 1958, the appellees - individual residents

[ 397 Pa. Page 467]

    of the neighborhood acting on their own behalf and on behalf of other residents - instituted an equity action in Court of Common Pleas No. 6 of Philadelphia County to enjoin the opening of the taproom-restaurant upon the theory of an anticipatory nuisance. During the pendency of that proceeding the taproom-restaurant opened for business and appellees then filed an amended complaint upon the theory that the operation of the taproom-restaurant constituted under the circumstances a nuisance in fact. Prior to any disposition of that proceeding the appellants Brodsky and Lane Bar, Inc.*fn4 instituted an equity action which sought to restrain appellees from boycotting and picketing the restaurant. Both equity actions were consolidated for trial and, after final hearing, the court below entered two decrees: one decree enjoined the operation of the taproom-restaurant and the other decree dismissed the equity complaint which sought to restrain the boycotting and picketing. From the entry of both decrees these appeals were taken.

In determining these appeals we recognize that the operation of a restaurant in which liquor and malt or brewed beverages are sold, duly licensed by the Pennsylvania Liquor Control Board, is a lawful business and, even though located in a residential district, is not a nuisance per se: "Nuisances", 46 C.J. § 265, p. 722; "Nuisances", 66 C.J.S. § 75, (2), p. 822. Unless the operation of this particular taproom-restaurant business constituted a nuisance in fact it cannot and should not be enjoined.

Our initial inquiry, therefore, is to determine whether the proof of record supports the conclusion that the

[ 397 Pa. Page 468]

    operation of this taproom-restaurant constituted a nuisance in fact.

In pursuing this inquiry we are bound to adhere to the well-recognized rule that the findings of fact made by a chancellor and approved by the court en banc are controlling on appeal provided such findings are supported by evidence, are not manifestly erroneous and were not arbitrarily and capriciously made: Oreovecz v. Merics, 382 Pa. 56, 114 A.2d 126; O'Neill v. Keegan, 376 Pa. 606, 103 A.2d 909; Teats v. Anderson, 358 Pa. 523, 58 A.2d 31; Burke v. Harkins, 296 Pa. 414, 146 A. 94.

The chancellor found, inter alia, that (1) the appellant Brodsky, a longtime restaurant owner and operator, bears an excellent reputation and has never been cited for any violation of the liquor control law; (2) with certain minor exceptions, the area in which the taproom-restaurant is located is exclusively residential; (3) the area, occupied predominately by persons of the colored race, is a quiet, conservative residential neighborhood, with well-built and well-kept homes, and constitutes an environment conducive to quiet and peaceful living, one particularly suitable in which to raise children; (4) south of this area is a district sometimes termed a "jungle area" wherein congested living and slum conditions prevail and wherein there exists a high incidence of crime, vice and juvenile delinquency; (5) a majority of the patrons attracted to this taproom-restaurant come from the so-called "jungle area".

The chancellor then found that the operation of this taproom-restaurant over a period of approximately eleven weeks had resulted in conduct on the part of its patrons which threatened to destroy the character of this hitherto quiet, peaceful and residential ...


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