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BERMAN v. PHILADELPHIA (03/14/67)

decided: March 14, 1967.

BERMAN, APPELLANTS,
v.
PHILADELPHIA



Appeal from decree of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1966, No. 3783, in case of Albert Berman, William Morganstine, Abe Karlin et al. v. City of Philadelphia, Gordon Cavanaugh, Commissioner of Department of Licenses and Inspections, Edmund J. Cummins et al.

COUNSEL

Frank Bielitsky, with him Meranze, Katz, Spear & Bielitsky, for appellants.

Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Frank J. Pfizenmayer, Assistant City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellees.

Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Jones and Mr. Justice O'Brien join in this dissenting opinion.

Author: Roberts

[ 425 Pa. Page 14]

On October 18, 1966 the Philadelphia Department of Licenses and Inspections issued a use and zoning permit to appellants whereby they were granted permission to use a trailer on a specified lot as a bail and bondsman's office. In reliance upon this permit appellants-licensees entered into a lease agreement on October 19, 1966 and purchased a trailer for $1,400. By letter dated November 3, 1966, the Department revoked the permit on the ground that a trailer was not an enclosed building as required by the zoning code, and, on the following day, advised appellants they were operating in violation of the code.

On November 14, 1966, appellants filed a complaint in equity in the Court of Common Pleas of Philadelphia County wherein they averred that the executive department of the City of Philadelphia was about to

[ 425 Pa. Page 15]

    forcibly evict them from their location. Appellants requested the issuance of an immediate order restraining the city authorities from taking such action; the court refused to issue an ex parte order in advance of a hearing. What happened next is not disputed: "[S]hortly after 5:00 P.M. [on the afternoon of the 14th], City employees acting at the direction of the Philadelphia Police, and specifically under orders from Deputy Police Commissioner Rizzo, severed and cut the telephone and electric wires leading into the trailer. Thereafter, the doors to the trailer were locked and a police officer was stationed in front of the trailer with instructions to refuse access and entry by the Appellants."*fn1 On November 15, the court issued a rule to show cause on the appellees as to why they should not be restrained from dispossessing appellants in this manner. The rule to show cause was returnable on November 17, but a hearing was not held until November 21. On November 23 the court entered an order refusing a preliminary injunction and discharging the rule. In its opinion, filed about three weeks later, the court explicitly expressed its disapproval of the manner in which the city authorities accomplished their objective. Finding itself faced with a fait accompli, however, the court concluded that, inasmuch as appellants had introduced no evidence showing that they could not conduct their business elsewhere in the same vicinity or that they could not recover damages through alternative legal proceedings, it did not have the power to restore the status quo ante pending a final orderly determination of appellants' rights.*fn2

[ 425 Pa. Page 16]

Following the denial of the request for a preliminary injunction in the court below, appellants filed in this Court a petition for an order directing the issuance of a preliminary injunction pending disposition of the appeal. Four members of this Court were unwilling to issue such an order without the benefits of briefs and oral argument; accordingly the petition was denied on December 21, 1966.*fn3 We did, however, grant appellants' petition for advancement. Their appeal from the denial of the preliminary injunction*fn4 was argued at our January session and is presently before us for adjudication.

On this appeal it is important to emphasize that, unlike the dissenting opinion, we are in no way concerned about the merits of the underlying zoning controversy. Nor are we concerned about whether the appellants may, under applicable federal or state law, have an additional cause of action against the parties responsible for their eviction. The sole question for our consideration is whether the court below abused its discretion in declining to issue the preliminary injunction. We conclude that the failure of the court below to insist that the police resort to the available ...


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