Spartacus, Inc. v. Borough of McKees Rocks

694 F.2d 947

Opinions

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. § 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. Muleahy, 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

1 . Appellants have since been convicted upon the citations before a magistrate. In a trial de novo, the Court of Common Pleas of Allegheny County, Pennsylvania, reversed the convictions of the individual appellants and affirmed the convictions of Spartacus, Inc. The appeal of Spartacus is still pending.

2 . Appellants also have filed a Complaint in Equity in the Court of Common Pleas of Allegheny County seeking an injunction against further enforcement of the ordinance. That complaint was dismissed and the proceeding is no longer pending. Appellees contended below that the proceedings in the court of common pleas constituted the final adjudication of the issues now before us. Because appellees do not renew that contention on appeal, we do not address it.

3 . The district court also queried but did not determine whether injunctive relief was improper under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970). Although the appeal of Spartacus, Inc., is still pending, see note 1, we conclude that Younger does not bar injunctive relief in the instant case because appellants state that their complaint should be read to seek injunctions against only future citations and prosecutions under the ordinance. See Wooley v. Maynard, 430 U.S. 705, 709-711, 97 S.Ct. 1428, 1432-1433, 51 L.Ed.2d 752 (1977); Doran v. Salem Inn, 422 U.S. 922, 930, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975); Conover v. Montemuro, 477 F.2d 1073, 1080 (3d Cir.1973).

4 . Appellants and appellees state that our appellate jurisdiction arises under 28 U.S.C. § 1291 (1976). The order of the district court is not a final decision within the meaning of that section, however. Instead, our jurisdiction arises under 28 U.S.C. § 1292(a)(1) (1976), which permits an appeal from the interlocutory order of a district court refusing to issue a preliminary injunction.

5 . Of course, a United States Court of Appeals does not sit as a Pennsylvania appellate court to review the sufficiency of the evidence before the Pennsylvania Court of Common Pleas. We read appellants’ brief as inartfully arguing that appellants do not fall within the statute.

6 . We agree with the concerns raised by the dissent. Although we have decided not to dismiss the appeal in this case, our opinion should not be read as approving in any way the submission of deficient briefs or appendices. Attomeys jeopardize their clients’ cases as well as their own professional standing by failing to comply with the Federal Rules of Appellate Procedure and the Rules of this Circuit.