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Trone v. Preate

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


July 16, 1991

JOHN E. TRONE, AN INDIVIDUAL; CASE BEER AND SODA OUTLET, INC., D/B/A BEER WORLD
v.
ERNEST PREATE, JR., ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, IN HIS OFFICIAL CAPACITY; LAWRENCE N. CLAUS, DEPUTY ATTORNEY GENERAL, IN HIS OFFICIAL CAPACITY; GLENN WALP, ACTING STATE POLICE COMMISSIONER, IN HIS OFFICIAL CAPACITY; MAJOR WILLIAM A. MERICLE, DIRECTOR OF THE PENNSYLVANIA BUREAU OF LIQUOR CONTROL ENFORCEMENT, IN HIS OFFICIAL CAPACITY; MAJOR GEORGE P. MARCH. DIRECTOR OF THE PENNSYLVANIA BUREAU OF CRIMINAL INVESTIGATION, IN HIS OFFICIAL CAPACITY, JOHN E. TRONE, AND CASE BEER AND SODA OUTLET, INC., T/D/B/A BEER WORLD, APPELLANTS

(Civil Action No. 91-00429 - M.D. Pennsylvania); District Judge: Honorable Sylvia H. Rambo.

Sloviter, Chief Judge, Greenberg and Seitz, Circuit Judges.

JUDGMENT ORDER

Plaintiffs, appellants, appeal an order of the district court staying the action pending the outcome of any state proceeding instituted by plaintiffs or defendants and denying a motion for a preliminary injunction.

The defendants first assert on appeal that the case should be dismissed for lack of ripeness. Because the contention implicates the district court's subject matter jurisdiction, we must address it although it arises for the first time on appeal. Upon examination of the record we conclude that plaintiffs have asserted a concrete threat of sufficient immediacy to satisfy the ripeness requirements of Article III. See City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Thus, the district court did have subject matter jurisdiction.

The plaintiffs appeal the order of the district court to the extent it abstained under Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941). Such an order is appealable under Schall v. Joyce, 885 F.2d 101 (3d Cir. 1989). The court finds itself in essential agreement with the analysis appearing in the Memorandum of the district court dated April 12, 1991, abstaining under Pullman. It is

ADJUDGED AND ORDERED that the judgment of the district court be and is hereby affirmed.

Costs shall be taxed against appellants.

19910716

© 1998 VersusLaw Inc.



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