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FANTASTIC PLASTIC v. PETER F. FLAHERTY (08/05/76)

decided: August 5, 1976.

FANTASTIC PLASTIC, INC., A PENNSYLVANIA CORPORATION
v.
PETER F. FLAHERTY, MAYOR AND PUBLIC SAFETY DIRECTOR OF THE CITY OF PITTSBURGH; ROBERT COLL, SUPERINTENDENT OF POLICE; AND ANGIE L. O'CONNOR, SUPERVISOR, BUREAU OF LICENSES AND PERMITS. FANTASTIC PLASTIC, INC., APPELLANT. (2 CASES)



Appeals from the Orders of the Court of Common Pleas of Allegheny County in case of Fantastic Plastic, Inc., a Pennsylvania corporation v. Peter F. Flaherty, Mayor and Public Safety Director of the City of Pittsburgh; Robert Coll, Superintendent of Police; and Angie L. O'Connor, Supervisor, Bureau of Licenses and Permits of the City of Pittsburgh, No. G.D. 75-13588 In Equity.

COUNSEL

John L. Laubach, Jr., with him David A. McVey, and Stevens, Clark, Laubach & Semple, for appellant.

Eugene B. Strassburger, III, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by President Judge Bowman.

Author: Bowman

[ 26 Pa. Commw. Page 12]

These consolidated appeals have their origin in a complaint in equity filed by Fantastic Plastic, Inc. (appellant) against Peter F. Flaherty, Mayor and Public Safety Director of the City of Pittsburgh, the Superintendent of Police, and the Supervisor of the Bureau of Licenses and Permits (appellees), seeking preliminary and permanent injunctive relief. Appellant seeks to operate its discotheque and restaurant located in Pittsburgh as a dance hall with adult patrons having the privilege of bringing their own liquor for consumption on the premises.*fn1 After obtaining occupancy permits for the premises, appellant sought a dance hall license as required by State law. Act of May 16, 1919, P.L. 193, as amended, 53 P.S. § 4731 et seq. (commonly and hereinafter referred to as the Dance Hall Act). The Supervisor of the Bureau of

[ 26 Pa. Commw. Page 13]

Licenses and Permits denied the application for said permit on instructions from the Mayor.*fn2

Appellees have advanced various reasons for the denial of the permit;*fn3 the most significant reason appears to be that Section 4 of Pittsburgh Ordinance No. 192 of 1915 forbids the consumption or possession of liquor in dance halls, and, thus, appellant's admitted intention to operate a "bring your own bottle" dance hall would constitute a violation of said ordinance.*fn4 In this equity action, appellant desires to force appellees to issue a dance hall license and refrain from interfering with the operation of its establishment. The appellees filed preliminary objections to the complaint, alleging a want of equity jurisdiction because of the existence of an adequate remedy at law and a demurrer for failure to state a cause of action.

After a hearing, the court below, on June 19, 1975, denied the requested preliminary injunction. Subsequently, on September 9, 1975, the court issued another order sustaining the preliminary objections and dismissing appellant's complaint. It did not consider the demurrer, but found equity jurisdiction lacking because of an adequate legal remedy for review of the license denial. Appellant has appealed to this Court from both the denial of preliminary injunction and the dismissal of its complaint.

As to the denial of the preliminary injunction, our scope of review is extremely narrow. It is well-established

[ 26 Pa. Commw. Page 14]

    law that a court, reviewing the grant or denial of a preliminary injunction, will not disturb the decision of the court below if there exists any apparently reasonable grounds for the court's action, e.g., Credit Alliance Corporation v. Philadelphia Minit-Man Car Wash Corporation, 450 Pa. 367, 301 A.2d 816 (1973); Judge v. Pocius, 21 Pa. Commonwealth Ct. 580, 347 A.2d 752 (1975). After reviewing the record, we cannot say that the court ...


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