Commonwealth v. Tick, Inc.

• Decision Date: 03 October 1968
• Citation: 431 Pa. 420,246 A.2d 424
• Parties: COMMONWEALTH of Pennsylvania v. TICK, INC., t/a Wheel Bar, Bernice Bogdanoff, Milton Bogdanoff, BettyGoldstein, Joseph Goldstein, Joseph Trost.
• Court: Pennsylvania Supreme Court

246 A.2d 424

431 Pa. 420

COMMONWEALTH of Pennsylvania v. TICK, INC., t/a Wheel Bar, Bernice Bogdanoff, Milton

Bogdanoff, BettyGoldstein, Joseph Goldstein, Joseph Trost.

Supreme Court of Pennsylvania.

October 3, 1968.

Theodore R. Mann, James M. Carter, Gerald Gornish Lawrence E. Hirsch, Goodis, Greenfield, Narin & Mann Philadelphia, for appellants.

Arlen Specter, Dist. Atty., Michael J. Rotko, David L. Creskoff Asst. Dist. Attys., Richard A. Sprague, First Asst. Dist Atty., Philadelphia, for appellee.

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

OPINION

JONES Justice.

On January 14, 1966, the District Attorney of Philadelphia filed a complaint in equity to enjoin Tick, Inc. and certain individuals interested therein (appellants) from operating the Wheel Bar in Philadelphia as a restaurant wherein liquor and malt beverages were sold.

Following a hearing, the Court of Common Pleas (No. 7) of Philadelphia County, on April 22, 1966, found that appellants had conducted the bar-restaurant in such manner as to constitute a nuisance, entered a decree directing the abatement of the nuisance but allowed the Wheel Bar to remain open and continue in operation under a $10,000 bond. On May 18, 1966, the Commonwealth filed an appeal from that decree in this Court and, on June 29, 1967, this Court, in a Per curiam opinion, held that the trial court had abused its discretion in not enjoining the operation of the premises as a restaurant licensed to sell liquor and malt beverages and we remanded the record to the court below for the entry of 'an appropriate decree'. See: Commonwealth v. Tick, Inc. et al., 427 Pa. 120, 125, 233 A.2d 866 (1967). Appellants' petition for reargument was denied on October 22, 1967.

The Commonwealth, on November 4, 1967, then filed an application in the court below for an Immediate injunction padlocking Wheel Bar for one year in accordance with the mandate of this Court. Three months later--on February 6, 1968--the court below entered an order enjoining the sale of liquor at the Wheel Bar for a period of one year. ^[1] The court below stated that it was 'constrained to rule under the decision of the Supreme Court that an injunction order must issue' but, believing appellants had been dealt with 'too harshly', it, in effect, invited appellants to again appeal to this Court.

On February 7, 1968, appellants appealed from the decree of the court below and the very next day--February 8, 1968--the court below entered an order permitting the Wheel Bar to remain open pending the outcome of the new appeal. ^[2]

On April 8, 1968, the Commonwealth filed a motion to dismiss this appeal on the ground of Res judicata to which appellants filed an answer.

Two matters are now before us: (1) the validity of the position taken by the Commonwealth that the instant appeal must be dismissed because the same issues and parties were before us on the prior appeal and, by reason of our resolution of those issues, the matter is now Res judicata; (2) the issues which are raised on the instant appeal. Necessarily, resolution of the question whether the appeal should be dismissed will require our consideration of the issues raised on this appeal.

On the Prior appeal, the issue was whether the court below had abused its discretion in not enjoining the operation of the Wheel Bar. In view of the findings of fact of the court below, which were supported by evidence of record and which led to the conclusion of the court below that appellants actions in the operation of this bar-restaurant constituted a nuisance, we held that the court below had abused its discretion in not enjoining the operation of the Wheel Bar and in permitting its continued operation under bond. See: Tick, supra, p. 125, 233 A.2d 866. Even the most cursory examination of our opinion in Tick, supra, will reveal beyond question that, when we remanded the matter to the court below for the entry of an 'appropriate decree', we contemplated the immediate entry of a decree enjoining the operation of this bar-restaurant. The court below correctly interpreted our remand order and entered a decree enjoining the operation of the Wheel Bar for one year.

In appealing from that decree, appellants now present two questions: (1) whether the court below, in consonance with our remand order, had the discretion to padlock the Wheel Bar for a period less than one year; (2) whether the court below, in fashioning an 'appropriate decree' in compliance with our remand mandate, had discretion to hear and consider evidence that the nuisance had been abated and that the operation of the bar-restaurant had been exemplary ever since the equity action was instituted, a period of over two years.

The Pennsylvania Liquor Code ^[3] provides that, once the court has found the existence of conduct in the operation of a bar-restaurant to constitute a nuisance and has directed its abatement, the court then has two options: (1) 'upon proper cause shown', to order that the premises 'shall not be occupied or used for one year thereafter' or (2) to permit the use and occupancy of the premises provided a bond in the penal sum of not less than $500 be posted and that no further violation of the Code occur. Under the Code, if the court, in the exercise of its discretion, rejects the second option and adopts the first option, then the unequivocal language of the Code provides for padlocking of the premises 'for one year thereafter.' Upon our remand of this matter for the entry of an 'appropriate decree', such decree of necessity had to be fashioned in the language of the statute. To contend, as appellants now do, that the court is given discretion to padlock the premises for less than one year offends both the statutory language and the remand order in Tick, supra, particularly because the remand order envisioned a decree padlocking the premises as authorized and permitted under the statute.

It was the duty of the court below, on remand, to comply strictly with our mandate and such compliance required the court to proceed in a manner consistent with the views expressed in our opinion and in accordance with the terms of the statute which empowered padlocking of premises. See: Haefele v. Davis, 380 Pa. 94, 110 A.2d 233 (1955). ^[4] We are satisfied that, in framing its decree, the court below followed both the mandate of the legislature and that of this Court.

On This appeal, appellants next contend that, upon our remand and in order to fashion an 'appropriate decree', the court below had discretion to hear and consider evidence that the nuisance had been entirely abated and that such abatement had continued for over two years. To the very same question, (although, of course, the time during which the nuisance had allegedly been abated was of shorter duration) this Court addressed itself on the Prior appeal. In Tick, supra, 427 Pa. p. 125, 233 A.2d p. 863, we said: 'Nor was the court justified in suspending the applicable law because the owners of the Wheel Bar had endeavored, in some manner, to abate the averred nuisance after the suit in equity had been filed.' ^[5] Moreover, the decree involved in the Prior appeal directed the abatement of the declared nuisance and, had the nuisance not been abated, appellants would have been disobeying the original decree in this litigation. This contention of appellants was considered and resolved in the Prior appeal.

Even if this issue had not been resolved on the Prior appeal, we would be constrained to affirm the action of the court below in refusing, after our remand order, appellants' offer of proof of good behavior in the period between the date of institution of suit and the date of our remand order. It is true that, under certain unusual circumstances, a court, after a remand order, may hear evidence of changes in circumstances or situations (46 South 52nd Street Corp. v. Manlin, 404 Pa. 159, 160, 172 A.2d 154 (1961)), but such circumstances did not exist in the case at bar. Furthermore, even if appellants did prove that the operation of Wheel Bar, After the suit was filed, had been exemplary, such evidence would be irrelevant to their conduct, Prior to the filing of this suit, which both the court below and this Court found to have constituted a nuisance (Cf. Larkin v. Auditorium Co., 18 Berks L.J. 189 (1925)) and, moreover, its purpose could only have been to secure padlocking for less than one year which would offend the statutory language empowering the court to padlock.

It is hornbook law that issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered on a second appeal. See: Delaware River Port Authority v. Pennsylvania Public Utility Commission, 408 Pa. 169, 182 A.2d 682 (1962); Ondovchik v. Ondovchik, 421 Pa. 20, 218 A.2d 578 (1966). The issues which we resolved on the prior appeal are identical with the issues now sought to be raised on this appeal, although couched in slightly different verbiage, and our determination of the prior appeal has become the law of this case. We are satisfied that the instant appeal must be dismissed.

This litigation has been unduly prolonged and must be concluded. Even though appellants' operation of the Wheel Bar was declared to constitute a nuisance by the court below almost two and one-half years ago and even though almost a year ago this Court directed the entry of an 'appropriate decree' which would enjoin the operation of the Wheel Bar, appellants continue in the operation of this bar-restaurant. The mandate of this Court has not and is not being followed. In 46 South 52nd Street Corp., supra, 404 Pa p. 160, 172 A.2d p. 155, we said: '* * * proper consideration (has been given) neither to the...