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COMMONWEALTH v. TICK (10/03/68)

decided: October 3, 1968.

COMMONWEALTH
v.
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.

COUNSEL

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.

Author: Jones

[ 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 ...


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