APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA -- PITTSBURGH
Before: ADAMS, HUNTER and GARTH, Circuit Judges
1. Appellants are Spartacus, Inc., a corporation doing business in the Borough of McKees Rocks, Pennsylvania, and the individuals who work at Spartacus. Appellees are the Borough, its mayor, and some of its police officers. Borough Ordinance No. 1343 requires that health clubs and massage technicians must obtain licenses. Failure to obtain a license is a summary offense carrying a fine of up to $300 or, if the fine goes unpaid, thirty days imprisonment. After Borough police had repeatedly inspected the premises of Spartacus and issued citations to appellants for failing to obtain the required licenses,*fn1 appellants brought suit against appellees in the United States District Court for the Western District of Pennsylvania. Appellants claimed that, because the ordinance either did not apply to them or was vague, the frequent issuance of citations violated their rights under the first, fourth, fifth, and fourteenth amendments to the United States Constitution. Pursuant to 42 U.S.C. § 1983 (1976), appellants sought declaratory relief, damages, and also temporary and permanent injunctions against the enforcement of the ordinance.*fn2
Appellants moved for the issuance of a preliminary injunction. On April 12, 1982, the district court issued an order denying the motion. In its oral opinion the court found that the ordinance did apply to appellants, was not vague, and did not violate appellants' constitutional rights. The court also found that appellants had failed to demonstrate irreparable harm "in the equitable sense" because they had failed to apply for licenses. App. at 195.*fn3 Appellants then filed this appeal.*fn4
3. An appellant challenging the denial of a preliminary injunction "bears a heavy burden." Chesimard v. Mulcahy, 570 F.2d 1184, 1187 (3d Cir. 1978) (citations omitted). As we stated in Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir. 1982) (en banc):
A preliminary injunction is not granted as a matter of right. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S. Ct. 573, 66 L. Ed. 2d 473 (1980). It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party "will be irreparably injured pendente lite if relief is not granted." Id. at 136; Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir. 1980). The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. Eli Lilly & Co., 630 F.2d at 136. The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision. Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972). Consequently, the scope of appellate review of a trial court's ruling is narrow. Unless the trial court abused its discretion, or committed an error in applying the law, we must take the judgment of the trial court as presumptively correct. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357 (3d Cir. 1980).
4. In this appeal appellants raise only two issues. First, they argue that the evidence at trial was insufficient to sustain their convictions under the ordinance.*fn5 Second, they urge that the ordinance is void for vagueness. Both arguments go only to appellants' likelihood of success on the merits.
5. Appellants fail to ask us to review the district court's finding of no irreparable harm. To justify reversal of the trial court's determination, however, appellants must demonstrate that the district court abused its discretion not only in holding that they had no reasonable probability of success on the merits, but also in holding that they would not be irreparably harmed. Chesimard, 570 F.2d at 1188. They have not done so.
6. Accordingly, the order of the district court will be affirmed.*fn6
I have declined to join the Majority Opinion, not because I disagree with the result which it reaches, but because, in my opinion, no reason exists for now considering the merits of this appeal. The brief and appendix filed by Spartacus*fn1 not only fails to disclose the facts giving rise to Spartacus's complaint (another document conspicuously missing from the appendix), but Spartacus has violated virtually every other pertinent rule of the Federal Rules of Appellate Procedure (Fed. R. App. P.), and this Circuit's Rules. I ...