decided: October 3, 1968.
TICK, INC. ET AL., APPELLANTS
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, et al.
Theodore R. Mann, with him James M. Carter, Gerald Gornish, Lawrence E. Hirsch, and Goodis, Greenfield, Narin & Mann, for appellants.
Arlen Specter, District Attorney, with him David L. Creskoff and Michael J. Rotko, Assistant District Attorneys, and Richard A. Sprague, First Assistant District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Eagen. Mr. Justice O'Brien joins in this concurring opinion. Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Cohen.
[ 431 Pa. Page 422]
On January 14, 1966, the District Attorney of Philadelphia filed a complaint in equity to enjoin Tick, Inc. and certain individuals interested therein (appellants) from operating the Wheel Bar in Philadelphia as a restaurant wherein liquor and malt beverages were sold.
Following a hearing, the Court of Common Pleas (No. 7) of Philadelphia County, on April 22, 1966, found that appellants had conducted the bar-restaurant in such manner as to constitute a nuisance, entered a decree directing the abatement of the nuisance but allowed the Wheel Bar to remain open and continue in operation under a $10,000 bond. On May 18, 1966, the Commonwealth filed an appeal from that decree in this Court and, on June 29, 1967, this Court, in a per curiam opinion, held that the trial court had abused its discretion in not enjoining the operation of the premises as a restaurant licensed to sell liquor and malt beverages and we remanded the record to the court
[ 431 Pa. Page 423]
below for the entry of an "appropriate decree". See: Com. v. Tick, Inc., 427 Pa. 120, 125, 233 A.2d 866 (1967). Appellants' petition for reargument was denied on October 22, 1967.
The Commonwealth, on November 4, 1967, then filed an application in the court below for an immediate injunction padlocking Wheel Bar for one year in accordance with the mandate of this Court. Three months later -- on February 6, 1968 -- the court below entered an order enjoining the sale of liquor at the Wheel Bar for a period of one year.*fn1 The court below stated that it was "constrained to rule under the decision of the Supreme Court that an injunction order must issue" but, believing appellants had been dealt with "too harshly", it, in effect, invited appellants to again appeal to this Court.
On February 7, 1968, appellants appealed from the decree of the court below and the very next day -- February 8, 1968 -- the court below entered an order permitting the Wheel Bar to remain open pending the outcome of the new appeal.*fn2
On April 8, 1968, the Commonwealth filed a motion to dismiss this appeal on the ground of res judicata to which appellants filed an answer.
Two matters are now before us: (1) the validity of the position taken by the Commonwealth that the instant appeal must be dismissed because the same issues and parties were before us on the prior appeal and, by reason of our resolution of those issues, the
[ 431 Pa. Page 424]
matter is now res judicata ; (2) the issues which are raised on the instant appeal. Necessarily, resolution of the question whether the appeal should be dismissed will require our consideration of the issues raised on this appeal.
On the prior appeal, the issue was whether the court below had abused its discretion in not enjoining the operation of the Wheel Bar. In view of the findings of fact of the court below, which were supported by evidence of record and which led to the conclusion of the court below that appellants' actions in the operation of this bar-restaurant constituted a nuisance, we held that the court below had abused its discretion in not enjoining the operation of the Wheel Bar and in permitting its continued operation under bond. See: Tick, supra, p. 125. Even the most cursory examination of our opinion in Tick, supra, will reveal beyond question that, when we remanded the matter to the court below for the entry of an "appropriate decree", we contemplated the immediate entry of a decree enjoining the operation of this bar-restaurant. The court below correctly interpreted our remand order and entered a decree enjoining the operation of the Wheel Bar for one year.
In appealing from that decree, appellants now present two questions: (1) whether the court below, in consonance with our remand order, had the discretion to padlock the Wheel Bar for a period less than one year; (2) whether the court below, in fashioning an "appropriate decree" in compliance with our remand mandate, had discretion to hear and consider evidence that the nuisance had been abated and that the operation of the bar-restaurant had been exemplary ever since the equity action was instituted, a period of over two years.
[ 431 Pa. Page 425]
The Pennsylvania Liquor Code*fn3 provides that, once the court has found the existence of conduct in the operation of a bar-restaurant to constitute a nuisance and has directed its abatement, the court then has two options: (1) "upon proper cause shown", to order that the premises "shall not be occupied or used for one year thereafter" or (2) to permit the use and occupancy of the premises provided a bond in the penal sum of not less than $500 be posted and that no further violation of the Code occur. Under the Code, if the court, in the exercise of its discretion, rejects the second option and adopts the first option, then the unequivocal language of the Code provides for padlocking of the premises "for one year thereafter." Upon our remand of this matter for the entry of an "appropriate decree", such decree of necessity had to be fashioned in the language of the statute. To contend, as appellants now do, that the court is given discretion to padlock the premises for less than one year offends both the statutory language and the remand order in Tick, supra, particularly because the remand order envisioned a decree padlocking the premises as authorized and permitted under the statute.
It was the duty of the court below, on remand, to comply strictly with our mandate and such compliance required the court to proceed in a manner consistent with the views expressed in our opinion and in accordance with the terms of the statute which empowered padlocking of premises. See: Haefele v. Davis, 380 Pa. 94, 110 A.2d 233 (1955).*fn4 We are satisfied that, in
[ 431 Pa. Page 426]
framing its decree, the court below followed both the mandate of the legislature and that of this Court.
On this appeal, appellants next contend that, upon our remand and in order to fashion an "appropriate decree", the court below had discretion to hear and consider evidence that the nuisance had been entirely abated and that such abatement had continued for over two years. To the very same question (although, of course, the time during which the nuisance had allegedly been abated was of shorter duration) this Court addressed itself on the prior appeal. In Tick, supra, p. 125, we said: "Nor was the court justified in suspending the applicable law because the owner of the Wheel Bar had endeavored, in some manner, to abate the averred nuisance after the suit in equity had been filed."*fn5 Moreover, the decree involved in the prior appeal directed the abatement of the declared nuisance and, had the nuisance not been abated, appellants would have been disobeying the original decree in this litigation. This contention of appellants was considered and resolved in the prior appeal.
Even if this issue had not been resolved on the prior appeal, we would be constrained to affirm the action of the court below in refusing, after our remand order, appellants' offer of proof of good behavior in the period between the date of institution of suit and the date of our remand order. It is true that, under certain unusual circumstances, a court, after a remand order, may hear evidence of changes in circumstances or situations (46 S. 52nd St. Corp. v. Manlin, 404 Pa. 159, 160, 172 A.2d 154 (1961)), but such circumstances did not exist in the case at bar. Furthermore, even if appellants did prove that the operation of Wheel
[ 431 Pa. Page 427]
Bar, after the suit was filed, had been exemplary, such evidence would be irrelevant to their conduct, prior to the filing of this suit, which both the court below and this Court found to have constituted a nuisance (cf. Larkin v. Auditorium Co., 18 Berks L. J. 189 (1925)) and, moreover, its purpose could only have been to secure padlocking for less than one year which would offend the statutory language empowering the court to padlock.
It is hornbook law that issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered on a second appeal. See: Delaware River Port Authority v. Pa. P.U.C., 408 Pa. 169, 182 A.2d 682 (1962); Ondovchik v. Ondovchik, 421 Pa. 20, 218 A.2d 578 (1966). The issues which we resolved on the prior appeal are identical with the issues now sought to be raised on this appeal, although couched in slightly different verbiage, and our determination of the prior appeal has become the law of this case. We are satisfied that the instant appeal must be dismissed.
This litigation has been unduly prolonged and must be concluded. Even though appellants' operation of the Wheel Bar was declared to constitute a nuisance by the court below almost two and one-half years ago and even though almost a year ago this Court directed the entry of an "appropriate decree" which would enjoin the operation of the Wheel Bar, appellants continue in the operation of this bar-restaurant. The mandate of this Court has not and is not being followed. In 46 S. 52nd St. Corp., supra, p. 160, we said: ". . . proper consideration [has been given] neither to the rights of the successful litigant nor to the mandate of our court." Such language vividly depicts that which has taken place in this litigation.
Decree affirmed. Appellants to pay costs.
[ 431 Pa. Page 428]
Concurring Opinion by Mr. Justice Eagen:
When this litigation was initially before this Court, I took sharp issue with the majority decision. See 427 Pa. 120, 125, 233 A.2d 866 (1967). I still adhere to the views expressed in my dissenting opinion. However, the law of the case has been established by the majority vote of the Court, and, like it or not, this Court should now enforce its prior decision, the meaning of which was clear and beyond question. Any other action would lead to confusion and intolerable results.
I, therefore, concur in affirming the decree of the court below.
Dissenting Opinion by Mr. Justice Musmanno:
Since the nuisance in this case has been abated, I see no reason, in law or in justice (unfortunately not always synonymous) why the injunction should continue.
Dissenting Opinion by Mr. Justice Cohen:
This Court should not compound the error of its previous disposition of this case: Commonwealth v. Tick, Inc., 427 Pa. 120, 233 A.2d 866 (1967) (Eagen, J., dissenting, joined in by Cohen, J. and O'Brien, J.), by attempting to punish appellants under a "statute which was not intended to punish personal guilt."*fn1 The Pennsylvania statute*fn2 under which this action in equity was brought and the decree sought is patterned nearly word for word after section 22 of the National
[ 431 Pa. Page 429]
Prohibition Act, October 28, 1919, c.85, § 22, 41 Stat. 314.*fn3
[ 431 Pa. Page 430]
Thus, in interpreting our statute we must examine how the federal courts have interpreted identical language, since our legislation was enacted after the federal judicial interpretation.
The United States Supreme Court has held that section 22 "authorizing an injunction is not punitive but preventive" in nature, Grosfield v. United States, 276 U.S. 494, 497 (1928). The Supreme Court further discussed the nature of the injunctive decree saying, "the decree must rest [on the ground] that the premises ought to be closed for a period long enough to end the probability of a recurrence of their unlawful use." Grosfield v. United States, supra, at 499. The remedy there is fashioned by likelihood of the continuance of the nuisance rather than an inflexible one year standard in the nature of punishment. The language above is very close to that used in United States v. Studio Club, 12 F. 2d 462 (S.D. N.Y. 1926). That case was modified in United States v. Pepe, 12 F. 2d 985 (2d Cir. 1926), which was cited by the Supreme Court in Grosfield, supra. In Studio Club, supra, the decree closing the premises under section 22 was for a period of six months. Since the federal statute after which our own was patterned permits an injunction for less than a year, the majority is in error in straining the language of our statute to hold that the court below could not make a determination to enjoin the nuisance for a period of less than one year.
I further disagree with our Court's interpretation of our mandate of "appropriate decree." If, as the majority holds, there was but one decree that could
[ 431 Pa. Page 431]
have been entered, we should have entered it ourselves. Instead, we remanded to the chancellor to enter in his discretion a decree appropriate to the situation. Thus, he was to look at the nuisance as it then existed and in accordance with the act fashion a decree that would best achieve the abatement of the nuisance. This is the only reading of "appropriate decree" that can support this Court's action of remand.
For this purpose the chancellor could hear evidence of abatement of the nuisance so that his decree would be just in light of the circumstances as they then existed.*fn4 This position is taken in interpreting the federal act, United States v. Chesebrough Mfg. Co., 11 F. 2d 537, 540 (S.D. N.Y. 1926) ("the nuisance having been completely abated prior to the entry of the decree, there is nothing on which any decree under section 22 can operate"). "The nuisance having been abated, the effect of such a decree [padlocking] would be purely punitive . . .", United States v. Chesebrough Mfg. Co., supra, 538-539.
In Commonwealth v. Pendalli, 306 Pa. 186, 188, 159 Atl. 20 (1932), our Court has held similarly while allowing a padlocking since "the proof of abatement does not measure up in quantum and quality with the proof of previous existence." This clearly shows that such evidence was to be taken and considered in fashionin a decree.
It is my opinion that our mandate of entering an "appropriate decree" encompasses more than a ministerial act by the chancellor and that our remand permitted him to fashion his remedy to the circumstances
[ 431 Pa. Page 432]
over the total range provided by the statute. I would therefore return this matter once again to obtain an "appropriate decree" in accordance with the principles set out in this dissent.