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RUBIN v. BAILEY. (01/22/60)

January 22, 1960

RUBIN, APPELLANT,
v.
BAILEY.



Appeal, No. 142, Jan. T., 1960, from order of Court of Common Pleas of Montgomery County, Nov. T., 1959, No. 28, in case of Albert Rubin et al. v. Bruce H. Bailey, Jr., Chief of Police, Montgomery Township, Montgomery County et al. Order affirmed. Equity. Before GROSHENS, J. Decree entered granting preliminary injunction; order entered, after hearing, dissolving preliminary injunction. Plaintiff appealed.

COUNSEL

Nathan L. Posner, with him Ramon R. Obod, and Foulke, Knight and Porter, and Fox, Rothschild, O'Brien & Frankel, for appellants.

Herbert C. Nelson, Assistant District Attorney, with him J. Bradley Taylor, Assistant District Attorney, and Bernard E. DiJoseph, District Attorney, for appellees.

W. James MacIntosh, with him Russell C. Dilks, Benjamin M. Quigg, Jr., Arthur Littleton, and Morgan, Lewis & Bockius, for amicus curiae.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 398 Pa. Page 273]

OPINION BY MR. CHIEF JUSTICE JONES

This appeal by the four original plaintiffs, joined by fifty-five intervenors, is from an order of the court below dissolving a preliminary injunction which the court had granted on the complainants' motion and affidavits. The injunction had restrained temporarily the chief of police of Montgomery Township, Montgomery County, and the district attorney of the County, from arresting or threatening to arrest the plaintiffs for alleged violations of The Penal Code of June 24, 1939, P.L. 872, 18 PS ยง 4699.4, as amended by the Act of August 10, 1959, P.L. 660. The amendatory Act, which is now Section 699.10 of The Penal Code, proscribes the selling of certain personal property on Sunday and prescribes fines and penalties for violations. All of the appellants are retail merchants located at the Montgomeryville Merchandise Mart in Montgomery Township, Montgomery County. The plaintiffs' complaint challenges the constitutionality of the amendatory Act of August 10, 1959, on the ground that it violates both the State and Federal Constitutions. By this appeal, they seek reinstatement of the preliminary injunction pending final hearing and ultimate disposition of their complaint.

The dissolution of a preliminary injunction is tantamount to a refusal in limine of such relief and constitutes an appealable order. The concept was clearly

[ 398 Pa. Page 274]

    expressed in Annenberg v. Roberts, 333 Pa. 203, 208, 2 A.2d 612, as follows: "Where a preliminary injunction is granted subject to a motion to continue, and such motion is afterwards overruled and the injunction dissolved, the situation is treated on appeal as equivalent to the refusal of a preliminary injunction and the decree of dissolution as constituting an appealable order within the meaning of the Act of June 12, 1879, P.L. 177: National Automobile Service, Inc. v. Barfod, 288 Pa. 227." Or, as reiterated in Aldrich v. Geahry, 360 Pa. 376, 378, 61 A.2d 843, citing the National Automobile service, case, supra, "It is now well established that an order dissolving a preliminary injunction, under these circumstances, is 'equivalent to the refusal of a preliminary injunction and as constituting an appealable order'".

It is equally well settled that the scope of review on an appeal from the grant or refusal of a preliminary injunction, is ordinarily narrowly restricted. As stated in Hoffman v. Howell, 242 Pa. 112, 114, 88 A. 877, "Our established practice on appeals from the awarding or refusing of preliminary injunctions is not to consider the merits of the case, but only to determine whether under the facts presented in the Common Pleas there was reasonable ground for the action of the court." The foregoing was quoted with approval in Aldrich v. Geahry, supra. However, where "... it is apparent that the lower court's action was based upon a fundamental error of law, which is conclusive of the rights of the parties", the action of the court below will be reversed: Stim v. Bezinec, 325 Pa. 492, 493, 190 A. 894, citing cases. These oft-repeated rules were summarized in Lindenfelser v. Lindenfelser, 385 Pa. ...


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