Com. v. Tick, Inc.

• Decision Date: 29 June 1967
• Citation: 427 Pa. 120,233 A.2d 866
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. TICK, INC., t/a Wheel Bar, Bernice Bagdanoff, Milton Bagdanoff, Betty Goldstein, Joseph Goldstein, Joseph Trost.
• Court: Pennsylvania Supreme Court

Page 866

233 A.2d 866

427 Pa. 120

COMMONWEALTH of Pennsylvania, Appellant, v. TICK, INC., t/a Wheel Bar, Bernice Bagdanoff, Milton Bagdanoff, Betty Goldstein, Joseph Goldstein, Joseph Trost.

Supreme Court of Pennsylvania.

June 29, 1967.

Rehearing Denied Oct. 22, 1967.

Theodore R. Mann, Philadelphia, Lawrence E. Hirsch, Peter M. Stern, Goodis, Greenfield, Narin & Mann, Philadelphia, for appellees.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.

OPINION OF THE COURT

PER CURIAM.

The District Attorney of Philadelphia filed a Complaint in Equity to enjoin the defendants in this case from operating the premises at 1419 Susquehanna Avenue, known as the Wheel Bar, as a restaurant licensed for the sale of liquors and malt beverages, proceeding under the Act of April 12, 1951, P.L. 90, Article VI, Sec. 611; 47 P.S. § 6--611. The Complaint averred that the Wheel Bar was conducted and maintained in such a manner as to constitute a nuisance in that it permitted loud, boisterous noises and disturbances, encouraged misbehavior, fights, stabbings and cuttings within and without the premises, permitted patrons to subject the public to verbal abuse in the form of obscene and vulgar language, permitted the sales of beverages to persons in an intoxicated condition, and maintained the premises in such an unhealthy manner as to constitute a menace to the public health.

Preliminary objections filed by the defendants were overruled and the case went on to a hearing, which lasted six days. After the taking of considerable testimony, the Court found, inter alia, the following facts:

'Although a porter is employed by the bar who thoroughly cleans the inside and outside of the taproom premises every morning before the bar opens, and who stops back once or twice a day to sweep the inside of the premises, the bar and its lavatory facilities become dirty after many hours of continuous business because of the heavy traffic of customers.'

'Groups of men gather in front of the Wheel Bar on a daily basis and remain there from the early morning until the late evening or early morning hours of the following day.'

'A number of the group of men gathered in front of the Wheel Bar were visibly intoxicated.'

'Those gathered in front of the Wheel Bar are loud, boisterous and noisy and constantly use vile and obscene language to the annoyance of the peaceable residents nearby.'

'Those gathered in front of the Wheel Bar constantly address passing pedestrians, males or females, in an obscene manner.'

'Female members of the traveling public are apprehensive in using the public highway in passing the Wheel Bar.'

'Numerous persons standing in front of the Wheel Bar have filled wine glasses and bottles of beer in their hands.'

'The wine glasses held by those outside the Wheel Bar are the same glasses utilized for the sale of wine within the Wheel Bar.'

'Visibly intoxicated persons have been seen on numerous occasions leaving the Wheel Bar.'

'The owner of the Wheel Bar knew of the conditions existing immediately outside of the Wheel Bar.'

'The owner of the Wheel Bar has never called the police concerning those gathered in front of his premises.'

'When the police do arrive to arrest intoxicated persons outside of the Wheel Bar, some of those persons enter the Wheel Bar to avoid arrest.'

'The patrons of the Wheel Bar within the premises regularly used obscene and vulgar language.'

'On September 18, 1965 the premises of the Wheel Bar was maintained in a filthy, unsanitary condition'

'On October 8, 1965, the premises of the Wheel Bar was maintained in a filthy, unsanitary condition.'

'On January 7, 1966 the premises of the Wheel Bar was filthy and unsanitary.'

'On January 8, 1966 the premises of the Wheel Bar was filthy and unsanitary.'

'On September 19, 1965 a visibly intoxicated person was served alcoholic beverages by the Wheel Bar.'

'On October 8, 1965 a visibly intoxicated person was served alcoholic beverages by the Wheel Bar.'

'On January 7, 1966 three visibly intoxicated persons were served alcoholic beverages by the Wheel Bar.'

'On January 8, 1966 seven visibly intoxicated persons were served alcoholic beverages by the Wheel Bar.'

'On January 14, 1966 the bartender of the Wheel Bar was visibly intoxicated.'

'On January 20, 1966 eight visibly intoxicated persons were observed drinking alcoholic beverages within the Wheel Bar.'

After announcing these Findings of Fact, the Court filed, inter alia, the following Conclusions of Law:

'The Act of April 12, 1951, P.L. 90, Art. VI, Sec. 611(47) (P.S. 6--611) and the common law are a proper basis for an equity suit to sustain an injunction to prohibit the use of a building for the sale of alcoholic, malt or brewed beverages.'

'Respondents have frequently conducted the business at the Wheel Bar to permit loud, boisterous and unseemly noises to the common nuisance and disturbance of the neighborhood in violation of the Liquor Code, Article I, Sec. 102; 47 P.S. 1--102.'

'Respondents have maintained premises 1419 Susquehanna Avenue, Philadelphia, Pennsylvania in an unsanitary manner as to constitute a violation of Article I, Sec. 107 of the Liquor Code (47 P.S. 1--102 'RESTAURANT').

'Respondents have on occasion served alcoholic beverages to visibly intoxicated persons in violation of Article VI, Sec. 493(1) of the Liquor Code; 47 P.S. 4--493.'

'The operation of the Wheel Bar was a causative factor interfering with the rights of persons residing in the immediate area who are entitled to peace, quiet, safety and freedom from offensive language and conduct on the part of those 'winos' who frequent the area outside of the Wheel Bar.'

'The operation of the Wheel Bar prior to but especially during the period from September 1965 through January 22, 1966 constitutes a nuisance as defined in the Pennsylvania Liquor Control Act, cited above.'

In spite of these Findings of Fact and Conclusions of Law, the Court did not enjoin the operation of Wheel Bar. Instead, it entered a decree ordering the nuisance to be abated.

After studying the record, we conclude that the action of the Court cannot be supported in law or in fact, we find further that the Court abused its discretion in reaching its decision. It was not enough to place the owners of the Wheel Bar under bond to obey the Liquor Code since all licensees are under bond to live up to the requirements proclaimed by the Code. Nor was the Court justified in suspending the applicable law because the...