Appeal, No. 144, Jan. T., 1960, from order of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1959, No. 3537, in case of 1621, Inc. v. Morris Wilson et al. Order affirmed; reargument refused January 11, 1961.
Herbert S. Levin, for appellant.
Cecil B. Moore, with him Jacob S. Richman, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN.
Appellant 1621, Inc., owner and operator of a taproom-restaurant in Philadelphia, filed a complaint in equity seeking a preliminary injunction against certain named persons (appellees here) both in their individual capacities and as representatives of a class consisting of other persons, organizations and associations, to enjoin them from picketing and boycotting appellant's duly licensed establishment. At a hearing on the rule for preliminary injunction, the following facts were stipulated by counsel: Appellant is a Pennsylvania corporation; the appellees are all Philadelphia residents and constitute a class represented by the named appellees. Pursuant to an application filed by appellant and after due notice was posted on the premises and protests were filed and heard, the State Liquor Control Board approved a transfer of a restaurant liquor license to the premises in question. The transfer of this license was in accordance with the policy then expressed in the Liquor Code as interpreted by this Court in Obradovich Appeal, 386 Pa. 342, 126 A.2d 435 (1956) (since modified by the legislature in the Act of August 25, 1959, P.L. 746, § 1, 47 PS § 4-404).*fn1 The unincorporated associations
named as appellees herein ("3200 block of Turner Street Organization" and "Strawberry Mansion Council of Block Organizations") then appealed the approval of this license transfer to the court of quarter sessions, which appeal was quashed. Appellant's premises are zoned properly for the use in question, the area being zoned mixed industrial, commercial and residential. Appellant's operation of the business at that address as a taproom-restaurant began on November 13, 1959. Picketing began on November 17, 1959, and continued daily, except for Sundays, with the number of participating pickets disputed, appellant claiming that as many as seven picketed at one time and appellees claiming a maximum of five; and children acted as pickets. The following signs were carried by the pickets, "Luther King did it why can't we;" "Please do not patronize excess bar;" "We need classrooms not taprooms;" "Less taprooms, more classrooms, more playrooms;" "We don't need another taproom;" "This taproom open without court's approval;" "Help Strawberry Mansion approve;" "We can't be bought please don't patronize this bar;" "Be fair. Please do not patronize excess bar." None of the appellees were ever or are now employees of appellant, nor do they represent or act on behalf of any employee of appellant, or any association or labor union with which appellant is affiliated. Finally, no adequate remedy at law is available to appellant. After making these admissions part of the record, the chancellor, upon the request of appellant's counsel and
over objection, took judicial notice of the fact that the picketing was detrimental to appellant's business and that it was causing some loss, however minimal, to appellant.
On December 7, 1959, the chancellor entered what he termed an Interim Order reserving decision on the application for a preliminary injunction, but limiting the pickets to three in number and otherwise regulating them. By order of the chancellor, December 18, 1959, was fixed as the date for the taking of testimony "on the question of a nuisance in fact, and on such other issues as may be relevant in the case." Appellees filed an answer to the complaint alleging that the picketing was orderly and lawful, that it was protected by the Federal and State Constitutions as a means of expression, and praying that the complaint be dismissed. Hearings were held on December 18, and 21, 1959, where the appellees presented testimony to prove that the operation of appellant's business constituted a nuisance in fact. When appellees' counsel informed the court that he intended to introduce over two hundred additional witnesses as to acts of nuisance, the chancellor fixed January 13, 14, 15, 1960, as further hearing dates. This appeal followed. Subsequently, appellant filed a statement in accordance with our Rule 40 conceding, for the purpose of this appeal only, that the appellees have presented and are prepared to present by many witnesses considerable testimony upon the basis of which the chancellor could find that the operation of appellant's business constituted a nuisance in fact.
Appellees contend initially that this appeal should not be entertained because the chancellor's Interim Order was interlocutory and therefore not appealable, and that there is no statute making such an ...