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SAMERIC CORPORATION MARKET STREET v. GOSS (10/04/72)

decided: October 4, 1972.

SAMERIC CORPORATION OF MARKET STREET
v.
GOSS, APPELLANT



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1971, No. 2318, in case of Sameric Corporation of Market Street, t/a Eric's Mark I, v. Martin Goss, a/k/a Morton Goss, individually and t/a Mark III.

COUNSEL

I. Sidney Sherwin, with him Arthur Sonstein, and Rosen, Sherwin & Seltzer, for appellant.

Michael H. Egnal, with him Egnal and Egnal, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Manderino concurs in the result. Concurring Opinion by Mr. Justice Roberts.

Author: Jones

[ 448 Pa. Page 498]

On December 25, 1970, the appellee, Sameric Corporation (Sameric), opened a movie theater in downtown Philadelphia called "Mark I." The Mark I Theater exhibits films of a conventional variety intended for general public consumption. In addition to the Mark I theater, Sameric owns and operates approximately forty movie

[ 448 Pa. Page 499]

    theaters in and around the metropolitan Philadelphia area. Six months after the opening of the Mark I, appellant, Martin Goss, opened the Mark III Cinema, also in downtown Philadelphia but approximately six blocks from appellee's theater. The Mark III, a so-called "mini-theater" seating about ninety persons, is situated in the rear of Goss' adult book store*fn1 and exhibits films intended solely for adult viewing.

Appellee filed a complaint in equity on September 21, 1971, seeking a preliminary injunction prohibiting the appellant's use of the name "Mark III." Following a hearing wherein testimony was taken from the President of Sameric, a preliminary injunction was granted enjoining appellant from using the name or title "Mark III" in connection with the exhibition of films in any area where the appellee operates movie theaters. We granted supersedeas and this appeal followed.

The sole question presented for our consideration is the propriety of the issuance of the preliminary injunction. In deciding this issue, our review is limited to the determination of whether any apparently reasonable grounds existed for the action of the court below. See, Community Sports, Inc. v. Denver Ringsby Rockets, Inc., 429 Pa. 565, 240 A.2d 832 (1968), and the cases cited therein. The reasonableness of issuance of a preliminary injunction is determined by an examination of the facts in light of the conditions which must necessarily exist before the injunction can be granted.

A preliminary injunction should be granted only where (1) the rights of the plaintiff are clear; (2) there is an urgent necessity to avoid injury which cannot be compensated for by damages; and (3) greater

[ 448 Pa. Page 500]

    injury will be done by refusing it than by granting it. Perloff Bros., Inc. v. Cardonick, 406 Pa. 137, 176 A.2d 413 (1962); Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958). See, also, Pubusky v. D. M. F., Inc., 428 Pa. 461, 239 A.2d 335 (1968), and Schwab v. Pottstown Borough, 407 Pa. 531, 180 A.2d 921 (1962). Our ...


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