Spartacus, Inc. v. Borough of McKees Rocks, 82-5312

• Decision Date: 26 October 1982
• Docket Number: No. 82-5312,82-5312
• Parties: SPARTACUS, INC., a Pennsylvania Corporation, Marcia Lynn Poslik, Maureen Bottles, Patricia Ann Herd, April Mancini, Regina Golden, Sandra Blake and Janet Iverson, and Jane Does v. BOROUGH OF McKEES ROCKS, a Municipal Corporation, Thomas Connolly, Mayor of the Borough of McKees Rocks and individually, Ronald Panyko, Donald Panyko, Lou White and John Does, police officers of the Borough of McKees Rocks and as individuals, Spartacus, Inc., Appellant. . Submitted Under Third Circuit Rule 12(6) on
• Court: U.S. Court of Appeals — Third Circuit

Page 947

694 F.2d 947

SPARTACUS, INC., a Pennsylvania Corporation, Marcia Lynn Poslik, Maureen Bottles, Patricia Ann Herd, April Mancini, Regina Golden, Sandra Blake and Janet Iverson, and Jane Does v. BOROUGH OF McKEES ROCKS, a Municipal Corporation, Thomas Connolly, Mayor of the Borough of McKees Rocks and individually, Ronald Panyko, Donald Panyko, Lou White and John Does, police officers of the Borough of McKees Rocks and as individuals, Spartacus, Inc., Appellant.

No. 82-5312.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit

Rule 12(6) on Oct. 26, 1982.

Dec. 10, 1982.

Rochelle S. Friedman, Pittsburgh, Pa., for appellant.

Samuel J. Pasquarelli, Jubelirer, Pass & Intrieri, P.C., Pittsburgh, Pa., for appellee.

Before ADAMS, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

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, ¹ 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. Sec. 1983 (1976), appellants sought declaratory relief, damages, and also temporary and permanent injunctions against the enforcement of the ordinance. ² 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. ³ Appellants then filed this appeal. ⁴

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).

Id. at 443.

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. ⁵ Second, they urge that the ordinance is void for vagueness. Both arguments go only to appellants' likelihood of success on the merits.

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.

Accordingly, the order of the district court will be affirmed. ⁶

GARTH, J., dissenting:

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 ¹ 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 can only surmise that, contrary to our requirements, counsel for Spartacus has neither read nor is familiar with either set of rules. ²

In reading Spartacus's brief on this appeal, and in attempting to prepare this case for disposition, I found that the glaring deficiencies in both the brief and appendix were so egregious that any meaningful review would become impossible without my first obtaining the district court record and reconstructing the appendix and the appellant's arguments. I have refused to do so, because I do not perceive this to be my task. It is one thing when appeals are brought by pro se litigants, who are not members of the bar and presumably are not acquainted with our procedures. It is quite another, when appeals are brought by attorneys who are members of our bar and who as a condition of their membership, are required to know and adhere to our rules.

Here the flagrant abuse of the appellate process by Spartacus's counsel compels me to refuse to consider the merits of this appeal, even if I could have ascertained the context in which Spartacus's arguments were made. Because of the wholesale violations of our procedures which are reflected in this case, I prefer not to struggle with the record in an effort to develop from that source, the arguments which I can only speculate that counsel was attempting to make. Indeed I am not convinced that the Majority Opinion, which does address the "merits," has been able to do more than state the headings that appear in appellants' brief. See Maj. op. at 949. I hasten to add, however, this is not the fault of my brothers in the Majority, but, in my opinion, is rather attributable to the woeful brief and inadequate appendix submitted by Spartacus.

I would therefore dismiss the appeal.

I.

The Federal Rules of Appellate Procedure and our Third Circuit Rules and Internal Operating Procedures (IOP's) set forth the general requirements to be observed by litigants bringing appeals in this court. The essential procedures have been carefully developed through the years in order to finish the reviewing court with the necessary elements of an appeal. In this connection we have previously observed that "[i]f the court is not supplied with the proper tools to decide cases, then extremely valuable time, already severely rationed, must be diverted from substantive work into correspondence and communications with the Clerk and counsel to obtain the vital information negligently or deliberately omitted from the [brief and the] appendix." Kushner v. Winterthur Swiss Insurance Co., 620 F.2d 404, 407 (3d Cir.1980).

Thus, we require that the brief contain, among other things, a statement of the case indicating the course of proceedings and its disposition in the court below. It must also contain a statement of the facts which are relevant to the issues, and those facts must be appropriately referenced to the record. Fed.R.App.P. 28(a). Spartacus's brief contains neither.

Nor can a separate statement of issues presented for review be found in Spartacus's brief. See Fed.R.App.P. 28(a)(2) and Third Circuit Rule 21(1)(A)(c). No statement, as required by Third Circuit Rule 21(1)(A)(d), indicating whether this case has been before the court previously, and whether counsel was aware of any other case presently pending before the court or about to be presented to the court which is in any way related to the instant case, is to be found in the brief. Nor did Spartacus's brief contain the essential certification that Spartacus's counsel was a member of the bar of this court. See Third Circuit Rules 21(1) and 9(1)(d).

Spartacus's brief did contain a statement of jurisdiction. However, its jurisdictional statement, insofar as it referred to appellate jurisdiction was incorrect. Spartacus asserted that the jurisdiction of this court was obtained under 28 U.S.C. Sec. 1291 (final order). In fact, as the Majority Opinion reveals (see Maj. op. at 949, n.4), and as hints from Spartacus's brief disclose, Spartacus appealed from an order denying a preliminary injunction. Thus we have jurisdiction not under Sec. 1291, but under Sec. 1292(a)(1).

Finally, and probably most importantly, our Rules mandate that the standard or scope of review must be stated with respect to each contention. See Third Circuit Rule 21(1)(A)(e)(i). My colleague, Judge Aldisert, recently wrote an article which was addressed to professional competence and responsibility. In it Judge Aldisert stated that:

A clear understanding of the scope of review for each point in a brief should be a minimum requirement to meet the proposed...