Commonwealth v. Cohen
| Decision Date | 11 November 1942 |
| Docket Number | 262-1942 |
| Citation | 28 A.2d 723,150 Pa.Super. 487 |
| Parties | Commonwealth v. Cohen et al., Appellants |
| Court | Pennsylvania Superior Court |
Argued October 14, 1942.
Appeal from decree of C. P. No. 3, Phila. Co., June T., 1942, No 1772, in case of Commonwealth v. Jacob Cohen et al.
Bill in equity. Before Milner, J.
Decree entered awarding preliminary injunction. Defendants appealed.
Decree affirmed.
B. D Oliensis, for appellants.
John A Boyle, First Assistant District Attorney, with him Americo v Cortese, Assistant District Attorney, and John H. Maurer, District Attorney, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Rhodes, Hirt and Kenworthey, JJ.
A restaurant liquor license was issued to defendants for the year beginning October 31, 1941 at 1203 Cuthbert Street in Philadelphia. Under this and prior licenses the defendants conducted a tap room known as Bar Harbor Inn. Alleging continued violations of the Liquor Control Act of November 29, 1933, P. L. 15, as amended, 47 PS 744, the district attorney on July 2, 1942 brought this action in equity under art. VI, § 608 of the act to enjoin the nuisance. After a full hearing on the rule for a preliminary injunction the court entered a decree enjoining the continuance of the nuisance, restraining the defendants from removing the liquor from the premises, and also prohibiting the sale of liquor pending final disposition of the proceeding. The decree did not otherwise interfere with defendants' use and enjoyment of the premises. It is conceded that the testimony is sufficient to charge them with violations of the law but defendants contend that in the preliminary decree the court exceeded its powers. It is urged that the function of a preliminary decree is merely to maintain the status quo and that the court after enjoining the nuisance and illegal sales, exceeded its power in restraining all sales including the lawful sale of liquor by defendants under their license from the Commonwealth.
The Act of June 16, 1836, P. L. 784, § 13, 17 PS 282, gave the court the general Section 608 of the Liquor Control Act declares the place where liquor is sold in violation of the act and all liquor on the premises "to be a common nuisance" and authorizes a proceeding in equity to enjoin the nuisance by preliminary injunction; under that section, also, the court may restrain the removal of "the liquor or other things used in connection with the violation of this act constituting such nuisance," pending final hearing and decree. It is for the legislature "to consider and decide the fact of what constitutes a menace to public health, [safety or morals, Nolan, Appellant, v. Jones, 263 Pa. 124, 106 A. 235] then to meet it by a proper remedy": Com. v. Dietz, 285 Pa. 511, 132 A. 572.
In general, the object of a preliminary injunction is simply preventive, to maintain things as they are until the rights of the parties can be considered and determined after a full hearing. Audenried v. Phil. & Reading Railroad Co., 68 Pa. 370. Its office "is not to subvert but to maintain the existing status until the merits of the controversy can be fully heard and determined." But in an exceptional case it may be necessary "to make even preliminary injunctions mandatory." The rule is "that the status quo which will be preserved by preliminary injunction is the last actual, peaceable [and, we may add, lawful] non-contested status which preceded the pending controversy": Fredericks v. Huber, 180 Pa. 572, 37 A. 90. It is conceded, as it must be, that the preliminary decree in this case is proper insofar as it enjoined a common nuisance and violations of the law declared to be such by the Liquor Control Act.
A somewhat different situation would be presented if the...
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...Pa. 572, 37 A. 90; Warner Bros., Inc., v. Gittone, supra; Ball v. Paramount Pictures, Inc., D.C., 57 F. Supp. 505; Commonwealth v. Cohen, 150 Pa.Super. 487, 28 A.2d 723; Pennsylvania Public Utility Commission v. Israel et al., 356 Pa. 400, 52 A.2d 317; Mahoney Twp. Authorities v. Draper et ......
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Commonwealth v. James J. Cochran Post No. 251 Of
...relief would be impaired if anything short of a comprehensive decree38 A.2d 255would be entered. Commonwealth v. Cohen, 1942, 150 Pa. Super. 487, 28 A.2d 723. One final observation should be noted. Respondents are not wholly without the benefit of a jury if desired. In the section of the Ac......
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Com. v. Coward
...a preliminary injunction mandatory: Leisenring v. Pennsylvania Lighting Co., 59 Pa.Super. 202, 208 (1915). In Commonwealth v. Cohen, 150 Pa.Super. 487, 489 (28 A.2d 723) (1942) the Court said: "The rule is 'that the status quo which will be preserved by preliminary injunction is the last ac......
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Commonwealth v. Coward
... ... can be considered and determined after a full hearing, but it ... is now well settled that at times it is necessary to make ... even a preliminary injunction mandatory: Leisenring v ... Pennsylvania Lighting Co., 59 Pa.Super. 202, 208 (1915) ... In ... Commonwealth v. Cohen, 150 Pa.Super. 487, 489 (28 ... A.2d 723) (1942) the Court said: "The rule is 'that ... the status quo which will be preserved by preliminary ... injunction is the last actual, peaceable (and, we may add, ... lawful) noncontested status which preceded the pending ... controversy.' " ... Id ... ...