Appeal from decree of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1965, No. 2703, in case of Commonwealth of Pennsylvania v. Tick, Inc., trading as Wheel Bar, Bernice Bagdanoff, Milton Bagdanoff et al.
Arlen Specter, District Attorney, with him David L. Creskoff and Alan J. Davis, Assistant District Attorneys, and Richard A. Sprague, First Assistant District Attorney, for Commonwealth, appellant.
Theodore R. Mann, with him Lawrence E. Hirsch, Peter M. Stern, and Goodis, Greenfield, Narin & Mann, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Cohen and Mr. Justice O'Brien join in this dissenting opinion.
The District Attorney of Philadelphia filed a complaint in equity to enjoin the defendants in this case from operating the premises at 1419 Susquehanna Avenue, known as the Wheel Bar, as a restaurant licensed for the sale of liquors and malt beverages, proceeding under the Act of April 12, 1951, P. L. 90, § 611, 47 P.S. § 6-611. The complaint averred that the Wheel Bar was conducted and maintained in such a manner as to constitute a nuisance in that it permitted loud, boisterous noises and disturbances, encouraged misbehavior, fights, stabbings and cuttings within and without the premises, permitted patrons to subject the public to verbal abuse in the form of obscene and vulgar language, permitted the sales of beverages to persons in an intoxicated condition, and maintained the premises in such an unhealthy manner as to constitute a menace to the public health.
Preliminary objections filed by the defendants were overruled and the case went on to a hearing, which lasted six days. After the taking of considerable testimony, the Court found, inter alia, the following facts:
"Although a porter is employed by the bar who thoroughly cleans the inside and outside of the tap-room premises every morning before the bar opens, and who stops back once or twice a day to sweep the inside of the premises, the bar and its lavatory facilities become dirty after many hours of continuous business because of the heavy traffic of customers.
"Groups of men gather in front of the Wheel Bar on a daily basis and remain there from the early morning until the late evening or early morning hours of the following day."
"A number of the group of men gathered in front of the Wheel Bar were visibly intoxicated.
"Those gathered in front of the Wheel Bar are loud, boisterous and noisy and constantly use vile and obscene
language to the annoyance of the peaceable residents nearby.
"Those gathered in front of the Wheel Bar constantly address passing pedestrians, males or females, in an obscene manner."
"Female members of the traveling public are apprehensive in using the public highway in passing the Wheel Bar."
"Numerous persons standing in front of the Wheel Bar have filled wine glasses and bottles of beer in their hands."
"The wine glasses held by those outside of the Wheel Bar are the same glasses utliized for the sale of ...