IN THE COMMONWEALTH COURT OF PENNSYLVANIA

SPTR, Inc., Newbolds Brew LLC, :

The American Sardine Bar, Inc., : No. 1264 C.D. 2015

and the Point Breeze Fund LLC : Argued: May 12, 2016

:

v. :

:

City of Philadelphia, :

Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION 

BY JUDGE WOJCIK FILED: November 21, 2016

City of Philadelphia (City) appeals from an order of the Court of 

Common Pleas of Philadelphia County (trial court) granting an emergency petition 

for preliminary injunction to allow the operation of a pop-up beer garden in a 

residential district in the City pending disposition of a use permit application. The 

City argues the trial court erred because the beer garden is a prohibited commercial 

use in a residential zone. Upon concluding reasonable grounds exist to uphold the 

preliminary injunction, we affirm. 

I. Background

SPTR, Inc., Newbolds Brew, LLC, the American Sardine Bar, Inc., 

and the Point Breeze Fund, LLC (collectively, Appellees) are four commercial 

entities. The first three entities are licensed by the Pennsylvania Liquor Control 

Board (PLCB) to sell liquor. Point Breeze Fund, LLC, is a separate entity that 
2

owns a vacant lot in the City located at 1622-40 Point Breeze Avenue (Property), 

which is located in a residential, multi-family zone (RM-1).1 

Appellees planned to operate a pop-up beer garden on the Property, 

which is an outdoor bar that sells beer and food to customers on a seasonal basis. 

They acquired PLCB liquor licenses, off-premises catering permits, City Health 

Department permits, and City Department of Licenses and Inspections (L&I) 

permits to serve food and nonalcoholic beverages at the Property. Appellees also 

invested $30,000 to clear, clean and landscape the Property. 

The pop-up beer garden officially opened in May 2015. The beer 

garden operates as a “membership party” and fundraiser for local charities. The 

beer garden operates from May through September, during limited hours: Thursday 

from 5:00 p.m. to 10:00 p.m., Friday from 5:00 p.m. to 11:00 p.m., Saturday from 

1:00 p.m. to 11:00 p.m., and Sunday from 1:00 p.m. to 10:00 p.m. 

In June 2015, an L&I inspector inspected the beer garden and 

ascertained that the beer garden operated without a required zoning or use 

registration permit or zoning certification in violation of Title 14 of the 

Philadelphia Code (Zoning and Planning). On June 25, 2016, the inspector issued 

a “Notice of Intent to Cease Operations and Order” (Notice) informing Appellees 

that within 10 days a cease operations order would be issued unless they obtained a 

zoning permit. The Notice stated: “[T]hese violations may pose a threat to the 

safety, health or welfare to the occupants or surrounding community and require 

immediate correction.” Reproduced Record (R.R.) at 49a. The Notice advised a 

cease operations order “can only be vacated by obtaining an immediate stay of 

 

1

John Longacre is the principal of Point Breeze Fund, LLC, and he owns the liquor 

licenses for and possesses ownership interest in the other entities. 
3

enforcement as set out in the Administrative Code or correcting the cited violation 

and passing inspection” prior to the issuance of a cease operations order effective 

date. Id. It further directed appeal forms may be obtained from the Board of 

License and Inspection Review (L&I Board).

On June 29, 2015, L&I issued a final warning advising Appellees that 

the failure to correct the violation will require L&I to pursue additional 

enforcement action, including the assessment of fines in the amount of $150 to 

$2,000 per day. R.R. at 50a. 

On July 1, 2015, Appellees filed a zoning permit application with L&I 

to use the property as a beer garden, but they were informed the application had a 

“due date” of July 29, 2015, and would not be initially approved. Trial Court 

Opinion, 10/2/15, at 3. The application was subsequently denied.2 

L&I then issued a cease operations order (Cease Order) directing 

Appellees to immediately cease all business operations and related occupancy at 

Property as of midnight on July 8, 2015. R.R. at 51a. Appellees attempted to 

appeal the Cease Order with the L&I Board, which was rejected. 

Thereafter, Appellees filed a complaint in equity and an emergency 

petition for preliminary injunction with the trial court. Appellees alleged that the 

City, by issuing the Cease Order, violated their due process rights, caused them to 

suffer irreparable harm without an adequate remedy at law, unlawfully preempted 

licenses issued by the PLCB, and unlawfully commingled prosecutorial and 

adjudicatory functions. 

 

2 Appellees appealed the denial to the Philadelphia Zoning Board of Adjustment; the 

appeal is pending. Appellees’ Brief at 10; Appellant’s Brief at 12 n.1. 
4

The City opposed the emergency petition, but it did not file an answer 

to the complaint. The trial court issued a rule to show cause why the emergency 

petition should not be granted. After hearing evidence and arguments on the rule, 

the trial court granted the preliminary injunction, vacated the Cease Order, directed 

no further enforcement activity under the Cease Order shall occur until disposition 

of the zoning permit application, and required Appellees to post a bond in the 

amount of $500. Trial Court Order, 7/10/15. 

The City then filed a notice of appeal in this Court, which 

automatically stayed the preliminary injunction. In response, Appellees filed an 

emergency petition for supersedeas with the trial court, which the trial court 

granted, thereby allowing Appellees to continue operating their pop-up beer 

business on the Property during the pendency of the City’s appeal. 

The trial court directed the City to file a statement of errors 

complained of on appeal pursuant to Pa. R.A.P. 1925(b), which it did. The trial 

court then issued an opinion in support of its order. The trial court determined the 

issues raised in the City’s Rule 1925(b) statement were waived for purposes of 

appeal because the City did not file an answer to Appellees’ complaint.3 

Nevertheless, the trial court addressed the merits of the preliminary 

injunction. The trial court prefaced its discussion by noting there is little guidance 

on the procedure to acquire zoning permits for temporary uses. It also commented 

on the enduring and pervasive issue of vacant lots blighting the City, noting as 

 

3 Although the City did not file an answer to the complaint, it responded to the 

emergency petition for preliminary injunction. In so doing, the City preserved its challenges to 

the preliminary injunction order. See Levin v. St. Peter’s School, 578 A.2d 1349, 1352 

(Pa. Cmwlth. 1990). 
5

many as 10 City agencies, including pest control, police and fire, are called upon to 

“upkeep” vacant lots. Trial Court Opinion, 10/2/15, at 9.

As to the merits, the trial court determined Appellees met all 

prerequisites for injunctive relief. Of relevance to this appeal, the trial court found 

that Appellees demonstrated a clear right to relief because L&I did not meet the 

criteria to issue the Cease Order. A cease operations order may be ordered only 

when a property owner engages in a use without one or more required permits and 

either the missing permits are required to protect the public health or safety or the 

continued use creates a public nuisance. Trial Court Opinion at 10-11 (citing 

Section 14-306(1)(e)(.1) of the Philadelphia Code). The trial court found 

Appellees possessed the permits from the Health Department, PLCB and L&I, 

which are required to protect public health and safety. 

Significantly, the trial court found the operation of the beer garden did 

not create a public nuisance. The evidence presented showed that there had been 

no incidents requiring the police to be called to the premises. The State Police 

visited and found the beer garden in good standing. No threat to public safety 

existed. The latest the beer garden operated was until 11 p.m. on Saturday night. 

Local registered community organizations, including South Philadelphia Homes, 

supported the beer garden and benefited from its charity fundraising. Ultimately, 

the trial court opined Appellees’ use of the Property “as a beer garden, along with 

its fundraising efforts and expenditure put forth to clear the lot of trash, vermin, 

and other unsightly blight, was an improvement to the neighborhood; such 

development should be encouraged even on a temporary basis.” Trial Court 

Opinion at 9 (emphasis added). Upon determining Appellees met the prerequisites 
6

for injunctive relief, the trial court granted the preliminary injunction. This appeal 

now follows. 

II. Issues

The City contends the trial court erred by granting injunctive relief. 

The City maintains L&I was authorized to shut down the operation because the 

beer garden is a prohibited commercial use in the RM-1 residential zone, Appellees 

do not have the required zoning permit to operate the beer garden, and its operation 

created a public nuisance in its residential location. Moreover, the City asserts the 

mere existence of a commercial beer garden in a residential zone amounts to a 

public nuisance per se. 

III. Discussion

A. Clear Right to Relief

First, the City contends the trial court erred by granting injunctive 

relief because Appellees did not show a likelihood of success on the merits. 

Appellees are not entitled to operate a beer garden in the RM-1 residential zone 

without a zoning permit. Appellees cannot circumvent the zoning law by simply 

cleaning trash off of a vacant lot, selling food in a hygienic manner, and obtaining 

other permits for the sale of food and beverages. The possession of other permits 

does not obviate the need for a zoning permit or make a commercial use in a 

residential zone otherwise lawful. Without a permit, L&I was authorized to shut 

the beer garden down under the Philadelphia Code. 

Preliminary injunctive relief is an equitable remedy available in equity 

actions. Barcia v. Fenlon, 37 A.3d 1, 6 (Pa. Cmwlth. 2012). “A preliminary 

injunction is designed to preserve the subject of the controversy in the condition in 

which it is when the order is made, it is not to subvert, but to maintain the existing 

status quo until the legality of the challenged conduct can be determined on the 
7

merits.” Greater Nanticoke Area Education Association v. Greater Nanticoke 

Area School District, 938 A.2d 1177, 1183 (Pa. Cmwlth. 2007). 

Our review of a trial court’s order granting or denying preliminary 

injunctive relief is “highly deferential.” Summit Towne Centre, Inc. v. Shoe Show 

of Rocky Mount, Inc., 828 A.2d 995, 1000 (Pa. 2003). “[W]e do not inquire into 

the merits of the controversy, but only examine the record to determine if there 

were any apparently reasonable grounds for the action of the court below.” Id.

(quoting Roberts v. Board of Directors of School District, 341 A.2d 475, 478 (Pa. 

1975)). Only when it is clear no grounds exist to support the decree, or the rule of 

law was “palpably erroneous or misapplied,” will such order be reversed. Id.; 

accord Novak v. Commonwealth, 523 A.2d 318, 319 (Pa. 1987). Such reasonable 

grounds exist when the essential prerequisites for the granting of an injunction are 

met. Summit Towne, 828 A.2d at 1000. 

There are six essential prerequisites a party must establish before

obtaining preliminary injunctive relief:

(1) the injunction is necessary to prevent immediate and 

irreparable harm that cannot be compensated adequately 

by damages; (2) greater injury would result from refusing 

the injunction than from granting it, and, concomitantly, 

the issuance of an injunction will not substantially harm 

other interested parties in the proceedings; (3) the 

preliminary injunction will properly restore the parties to 

their status as it existed immediately prior to the alleged 

wrongful conduct; (4) the party seeking injunctive relief 

has a clear right to relief and is likely to prevail on the 

merits; (5) the injunction is reasonably suited to abate the 

offending activity; and, (6) the preliminary injunction 

will not adversely affect the public interest. 

SEIU Healthcare Pennsylvania v. Commonwealth, 104 A.3d 495, 502 (Pa. 2014) 

(citing Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. 2004)). Because the grant 
8

of a preliminary injunction is an extraordinary remedy, the failure to establish a 

single prerequisite requires the denial of the request for injunction. Summit Towne, 

828 A.2d at 1000. 

With regard to the clear right to relief criterion, which is the sole focus 

of this appeal, we examine the provisions of the Philadelphia Code. Section 14-

104(1) of the Philadelphia Code provides “[a]ll development and every principal 

and accessory use conducted within a structure or on a lot must conform with this 

Philadelphia Code.” No land may be used in the City “except in accordance with 

all of the applicable regulations established by this Philadelphia Code, unless 

otherwise expressly stated, and, except for single-family residential uses, without 

first obtaining a use registration or zoning permit from L&I in accordance with the 

procedures set forth in § 14-303(6) (Zoning Permits).” Section 14-104(2) of the 

Philadelphia Code. Eating and drinking establishments fall into the category of 

“commercial services use,” which is not identified as a permitted use in the RM-1 

residential district. See Sections 14-601(7)(f) and 14-602(3) of the Philadelphia 

Code. 

The Philadelphia Code bestows certain enforcement powers to L&I. 

Section 14-306 of the Philadelphia Code. Of relevance here: 

L&I may issue a cease operations order directing that 

occupancy, use, and other activities cease immediately, 

and that the premises be vacated pending compliance 

with the cease operations order whenever (1) any 

occupancy, use, or other activity is being performed in or 

on any building, structure, or land without one or more 

required permits or special exceptions, and either (2) the 

missing permits or special exceptions are required to 

protect public health or safety, or (3) the continued

occupancy, use, or activity without the required permits 

or special exceptions is creating a public nuisance. 
9

Section 14-306(1)(e)(.1) (emphasis added). 

A property owner creates a “public nuisance” by unreasonably 

interfering with the rights of his neighbors and the local community. Muehlieb v. 

City of Philadelphia, 574 A.2d 1208, 1209 (Pa. Cmwlth. 1990). “A public 

nuisance is an inconvenience or troublesome offense that annoys the whole 

community in general, and not merely some particular person, and produces no 

greater injury to one person than to another--acts that are against the well-being of 

the particular community--and is not dependent upon covenants.” Blue Mountain 

Preservation Association v. Eldred, 867 A.2d 692, 704 (Pa. Cmwlth. 2005) 

(quoting Groff v. Borough of Sellersville, 314 A.2d 328, 330 (Pa. Cmwlth. 1974)). 

A nuisance “affects health, safety or morals.” Id. at 705 (quoting Menger v. Pass, 

80 A.2d 702, 703 (Pa. 1951)). 

Here, although the Philadelphia Code does not address temporary 

uses, such as seasonal beer gardens, it clearly provides no land may be used, with 

the exception of single-family residential uses, without first obtaining a zoning 

permit. Section 14-104(2) of the Philadelphia Code. Appellees applied for a 

permit and are in the appeal process, but do not possess a zoning permit to operate 

a beer garden. Appellees’ possession of other permits or licenses for the sale of 

food and beverages, including alcohol, does not give them a right to operate in a 

particular area of the City. Consequently, L&I met the first criterion of Section 14-

306(1)(e)(.1) of the Philadelphia Code. 

Notwithstanding, in order for L&I to issue a cease operations order, it 

was required to show that either the missing permit is required “to protect public 

health or safety” or the continued use “is creating a public nuisance.” Section 14-
10

306(1)(e)(.1) of the Philadelphia Code. The trial court found L&I did not satisfy 

either criterion. 

First, with regard to public health and safety, the trial court found 

Appellees have the appropriate health inspection licenses and catering licenses for 

the sale of food and beverages on the Property. Such permits protect the public by 

ensuring a safe and healthy food supply. Appellees also possess licenses from the 

PLCB to sell alcohol off-premises, which protects the public by regulating the sale 

of alcohol. A zoning permit authorizing Appellees to serve otherwise permitted 

food and beverages, in a particular location, is not necessary to protect public 

health or safety. 

Second, the trial court found that the “continued” operation of the beer 

garden without the required zoning permit is not “creating a public nuisance.” 

Section 14-306(1)(e)(.1) of the Philadelphia Code (emphasis added). The police 

were never called to the beer garden. When the State Police visited, they found the 

beer garden in good standing. The beer garden is only open four days a week, 

from May to September, with limited hours of operation and a maximum closing 

time of 11 p.m. Prior to its use as a beer garden, the Property was a vacant, trashstrewn lot. Appellees cleaned off the lot and landscaped it at their own expense, to 

the tune of $30,000. Appellees donate a portion of their proceeds to several local 

charitable organizations. 

Significantly, no evidence was offered that the pop-up beer garden is 

“an inconvenience or troublesome offense that annoys the whole community.” See

Blue Mountain, 867 A.2d at 704. In fact, the trial court found that the operation of 

the pop-up beer garden was beneficial to the well-being of the community because 

Appellees improved an otherwise blighted lot and put it to a use that benefits 
11

charitable endeavors. Thus, the trial court determined the beer garden was not a 

nuisance in fact. On this basis, the trial court concluded Appellees showed a clear 

right to relief because L&I did not meet the prerequisites to issue a cease 

operations order under the Philadelphia Code. As the other elements for 

preliminary injunction are not in dispute, the record contains “apparently 

reasonable grounds” to support the preliminary injunction during the pendency of 

the zoning appeal. 

B. Public Nuisance per se

The City contends the trial court erred in granting the preliminary 

injunction because the beer garden is a public nuisance per se. When a 

commercial use is permitted, and the City seeks to enjoin that use, the City must 

show that the current operation of that business amounts to a nuisance in fact. 

However, when a commercial use is prohibited, it is a nuisance per se. The use of 

the Property as a commercial beer garden is not a permitted use in RM-1 

residential districts. As such, the City maintains it is a nuisance per se. Thus, the 

City maintains it did not need to show that the prohibited use was a nuisance in 

fact. According to the City, it does not matter how the beer garden is conducted 

because it is a nuisance per se as to its residential location and surroundings. The 

harm inherent in the use of a residential property as a prohibited commercial 

enterprise formed the proper basis for L&I’s Cease Order. 

Appellees counter the City waived this argument by not raising it 

before the trial court. Notwithstanding, Appellees argue a commercial use in a 

residential zone does not automatically constitute a nuisance per se. 

We first address Appellees’ waiver claim. Pursuant to Pa. R.A.P. 302, 

issues not raised in the trial court are waived and cannot be raised for the first time 
12

on appeal. Moreover, issues not included in the 1925(b) Statement are also 

waived. Pa. R.A.P. 1925(b)(4)(vii). 

Upon review of the record, the City never uttered the phrase “nuisance 

per se” at the preliminary injunction hearing or otherwise made this legal argument 

to the trial court. Furthermore, there is no reference to “nuisance per se” anywhere 

in the City’s 1925(b) Statement. Consequently, the trial court did not address the 

nuisance per se issue and instead analyzed whether the use created a public 

nuisance in fact. Although the City did not expressly raise the per se issue, we 

decline to find waiver because the City raised the broad issue of nuisance and we 

believe that issue fairly embraces the subsidiary issues of nuisance per se and

nuisance in fact. 

Nevertheless, we find the City’s nuisance per se arguments 

unavailing. The City maintains that the operation of a beer garden in a residential 

district without a permit is a nuisance per se justifying its cease operations order.

However, in order for L&I to properly issue a cease operations order pursuant to its 

authority under Section 14-306(1)(e)(.1) of the Philadelphia Code, L&I must 

satisfy two prongs. It cannot satisfy the nuisance criterion by simply showing lack 

of a permit. Rather, L&I must also show that the “continued” use, without a 

permit, “is creating a public nuisance.” Section 14-306(1)(e)(.1) of the 

Philadelphia Code. To interpret this provision otherwise, would nullify the latter 

provision of this section.4 

 

4 Although the Statutory Construction Act, 1 Pa. C.S. §§1921-1939, is not expressly 

applicable to the construction of local ordinances, the rules of statutory construction are 

applicable to statutes and ordinances alike. Council of Middletown Township v. Behham, 

523 A.2d 311, 315 (Pa. 1987); In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006), appeal 

denied, 916 A.2d 636 (2007). “One of the primary rules of statutory construction is that an 

ordinance must be construed, if possible, to give effect to all of its provisions.” Thompson, 

(Footnote continued on next page...)
13

Insofar as the City argues the sale of alcohol in a residential area 

constitutes a nuisance per se, this argument lacks legal support. “Whether the 

courts may determine a given act a nuisance, or whether, within certain uniform 

conditions, they may hold it a nuisance per se, depends on the evidence showing 

the necessary relation between the acts or repeated acts and the basic principles 

which underlie nuisances.” Nesbit v. Riesenman, 148 A. 695, 697 (Pa. 1930). 

Typically, “a nuisance per se is an act which is a nuisance at all times and at all 

places.” Id. at 697. “[C]ertain types of business, by the necessary incidents of 

their normal operation, deleteriously affect the health and comfort of the 

community, [and] their establishment in residential districts has been held to 

constitute a nuisance as a matter of law.” Menger, 80 A.2d at 703. 

Indeed, our Supreme Court has described a “nuisance per se” as:

an act or use of property of a continuing nature offensive 

to, and legally injurious to, health and property, or both. 

A given condition may be, at all times and places, a 

nuisance per se. As related to business, its inherent 

qualities or elements must be such that it must reasonably 

follow, in a particular locality or surrounding, that there 

will be an injury to property or a discomfort to the 

individual, with a resulting injury to property. The 

difference between a business, which, no matter how it is 

conducted, is a nuisance per se as to certain location and 

surrounding, and a business which is being so conducted 

as to become a nuisance, lies in the proof, not in the 

remedy.

 

(continued...)

896 A.2d at 668. “An interpretation of an ordinance which produces an absurd result is contrary 

to the rules of statutory construction.” Id. 
14

Pennsylvania Co. for Insurance on Lives and Granting Annuities v. Sun Co., 138 

A. 909, 910-11 (Pa. 1927). 

The Court continued, “[a] given business is in itself a nuisance per se

when it is generally known to be injurious to health and to cause legal damage to 

property in certain localities and surroundings, regardless of how it may be carried 

on.” Id. at 911. The Supreme Court described the following circumstances 

attending a business or property give rise to a nuisance per se: “Offensive or 

noxious odors or smells, undue noise of crowds, music, motors, gambling, 

improper construction of buildings, and the like, that are injurious to morals, life, 

health, and property.” Id. 

In addition, the law has determined that some businesses are, under 

certain conditions, nuisances per se because of location and surroundings. Id. at 

911. For example, locating a commercial business, such as a gas and service 

station, a fast food chain or public garage, in a purely residential neighborhood 

may constitute nuisance per se. Blue Mountain, 867 A.2d at 704; see Menger, 

80 A.2d at 703; see, e.g., Nesbit, 148 A. at 698 (public garage in exclusively 

residential district is a nuisance per se); Edmunds v. Duff, 124 A. 489, 492 (Pa. 

1924) (an amusement park near dwellings is a nuisance per se because of attendant 

crowds, music, and noise until late at night, and other detractions); Eckels v. 

Weibley, 81 A. 645, 646 (Pa. 1911) (a cattle stockyard in a residential section was a 

nuisance per se); Evans v. Reading Chemical and Fertilizing Co., 28 A. 702 (Pa. 

1894) (the manufacture of bone fertilizer was held to be a nuisance per se because 

noxious odors and offensive smells were inseparable from the manufacture). 

However, a commercial use in an exclusively residential area does not 

automatically render it a nuisance per se. Blue Mountain, 867 A.2d at 704; see 
15

also Daniels v. Notor, 133 A.2d 520, 525 (Pa. 1957) (a motel located within a 

strictly residential neighborhood is not a nuisance per se). Only where “certain 

recognized unavoidable inherent characteristics of the use make it injurious to 

health and property in certain locations,” may it be enjoined as a matter of law. Id. 

Relying on Reid v. Brodsky, 156 A.2d 334, 336 (Pa. 1959), the City 

contends the sale of alcohol in a residential neighborhood amounts to a nuisance 

per se. However, the case does not support this proposition. In Reid, our Supreme 

Court considered whether an injunction was properly entered against a taproom 

that was approved by a zoning board. In dicta, the Court observed “the operation 

of a restaurant in which liquor and malt or brewed beverages are sold, duly 

licensed by the [PLCB], is a lawful business and, even though located in a 

residential district, is not a nuisance per se.” Id. at 337 (emphasis added). 

Because the taproom was a permitted use under the zoning ordinance, its operation 

could only be enjoined if it was a nuisance in fact. Id. Ultimately, the court 

enjoined the use of the taproom in question upon finding it was a nuisance in fact

because it “disturbed the peace and quiet of this residential area and affronted the 

sensibilities of [residents] endeavoring to maintain in this urban area a decent, 

clean and wholesome environment in which to live and rear their families.” Id. at 

339. 

The City also relies on Diehl v. Lockard, 385 A.2d 550 (Pa. Super. 

1978), in support of its position that the sale of beer and wine is a nuisance per se. 

In Diehl, residents were granted a preliminary injunction to enjoin construction of 

a commercial fast food establishment in a zoned residential area as a nuisance per 

se. The trial court found that:

To permit construction of the premises would result in 

such noise, fumes, smells, dust and lights that the normal 
16

enjoyment of property surrounding the proposed 

construction and located within that residential area . . . 

would be unduly disrupted. Rest and sleep would be 

[a]ffected and the increase in traffic would be a danger to 

residents and especially the children of the area. In 

addition, the service of beer and wine, a venture 

previously excluded from the area, would present an 

additional possibility of danger. The particular character 

of the ... neighborhood should be maintained and a ‘Pizza 

Hut’ under the circumstances presented here would be 

out of keeping with the character of the neighborhood, 

and for the reasons set forth above, a nuisance per se.

Id. at 551. 

On appeal, the enjoined property owner argued the injunction was 

premature and that residents should await the construction of the "Pizza Hut" and 

then bring their action after they experience the activity of the restaurant to 

establish a nuisance. The Superior Court disagreed and determined allowing 

construction “would prevent ... efforts to keep [the] area residential.” 385 A.2d at 

551. Because reasonable grounds existed that the construction and operation of a 

fast food restaurant in a purely residential neighborhood would alter the character 

of the community and constitute a nuisance per se, the Superior Court concluded 

that the trial court did not abuse its discretion in granting the injunction to preclude 

the use. Id. Contrary to the City’s assertions, Diehl does not hold that the sale of 

beer and wine is a nuisance per se. Rather, the opinion merely noted that the 

service of beer and wine presented “an additional possibility of danger” when 

combined with the attendant harms of noise, fumes, smells, dust, lights, and 

increased traffic that rendered the use a nuisance per se. Id. at 551 (emphasis 

added). 

Here, although the beer garden is located in a residential community, 

its mere existence in the residential area does not automatically render it a nuisance 
17

per se. See Blue Mountain. In order to declare the use of the Property as a beer 

garden a nuisance per se, it still must have certain recognized, unavoidable,

inherent characteristics that make it injurious to health and property. See id. 

Although our courts have recognized inherent problems resulting from the sale and 

consumption of alcoholic beverages, they have not declared the sale, service or 

consumption of alcoholic beverages a nuisance per se. See Vernon Township

Volunteer Fire Department, Inc. v. Connor, 855 A.2d 873, 882 (Pa. 2004); Reid; 

Diehl. We decline to make such a declaration in this case. 

IV. Conclusion

For these reasons, we conclude the trial court did not abuse its 

discretion or misapply the law in finding “apparently reasonable grounds” exist to 

support Appellees’ preliminary injunction where L&I did not meet the 

prerequisites to issue a cease operations order under the Philadelphia Code. 

Accordingly, we affirm. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

SPTR, Inc., Newbolds Brew LLC, :

The American Sardine Bar, Inc., : No. 1264 C.D. 2015

and the Point Breeze Fund LLC : 

:

v. :

:

City of Philadelphia, :

Appellant :

O R D E R

AND NOW, this 21

st day of November, 2016, the order of the Court

of Common Pleas of Philadelphia County, dated July 10, 2015, is AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

SPTR, Inc., Newbolds Brew LLC :

The American Sardine Bar, Inc., :

and the Point Breeze Fund LLC :

: 

v. : No. 1264 C.D. 2015

: Argued: May 12, 2016

City of Philadelphia, :

Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

DISSENTING OPINION BY

SENIOR JUDGE COLINS FILED: November 21, 2016

I must respectfully dissent from the well-crafted opinion of the 

majority. 

As noted by the majority, a commercial beer garden is not a permitted 

use in a Residential Multi-Family (RM-1) zoning district in the City of 

Philadelphia (City). It is uncontested that the beer garden is being operated in a 

residential neighborhood without an appropriate use permit. Regardless of the 

salutary nature1of this so-called “pop-up beer garden,” it is still being operated in 

derogation of the Philadelphia Code (Code). The novelty of a use does not render 

passè the presumption that a zoning ordinance is a legitimate exercise of the police 

 

1

The conclusion of the Court of Common Pleas of Philadelphia County that Appellee’s 

“expenditure put forth to clear the [subject property] of trash, vermin, and other unsightly blight, 

was an improvement to the neighborhood,” is particularly dubious. (Trial Court Op. at 9.) The

care and maintenance of one’s own property is not extraordinary, rather it is the minimum 

expected and required of any landowner.
JGC-2

power enacted to protect and preserve the public health, safety, and welfare. The 

burden to rebut this presumption does not lay with the agency tasked with 

enforcing the law but with the landowner seeking to show that the restrictions 

imposed are invalid.

By showing that the beer garden was operating in a residential zone 

and was doing so without a use permit, the City satisfied the criteria necessary to 

issue a valid Cease Operations Order; the City was not required to provide 

additional evidence to demonstrate that operating a non-residential use in a 

residential district without a permit was contrary to the public welfare.2 The Court 

of Common Pleas of Philadelphia County (Trial Court) committed a palpable error 

of law by placing the evidentiary burden on the City rather than requiring 

Appellees to prove that operation of the beer garden was not contrary to the public 

welfare. As noted by the Majority, the Code makes clear that no land may be used 

for purposes other than single-family residential use without first obtaining a 

zoning permit. The burden to demonstrate that the Cease Operations Order was 

issued in error because it is an illegitimate exercise of the police power to require a 

property owner to obtain a permit to use property for purposes other than a 

permitted or single-family residential use is a heavy one, which Appellees failed to 

 

2

The Philadelphia Code allows the Department of Licenses and Inspections to issue a cease 

operations order whenever (1) any occupancy, use, or other activity is being performed in or on 

any building, structure, or land without one or more required permits or special exceptions, and 

either (2) the missing permits or special exceptions are required to protect public health or safety, 

or (3) the continued occupancy, use, or activity without the required permits or special 

exceptions is creating a public nuisance. Philadelphia Code § 14-306(1)(e)(.1). The beer garden 

was a commercial use being operated in a residential zone without a use permit and the 

requirement for a use permit in a zone where the use in question is not permissible is 

presumptively required to protect the public health and safety. Therefore, the City of 

Philadelphia met its burden to issue the Cease Operations Order and the burden shifted to 

Appellees to show that the Cease Operations Order was issued in error.
JGC-3

carry. Therefore, Appellees did not establish reasonable grounds to support 

injunctive relief.

Moreover, Appellees were free to apply for a permit, as they have 

now done, or to challenge any alleged failure of the Code to provide for temporary 

commercial uses. Appellees’ failure to seek relief through the process available to 

them does not transform that process into one that is less than what Appellees are 

due or provide a justification for Appellees to circumvent the law altogether.

Finally, this Court, by affirming the preliminary injunction 

erroneously issued by the Trial Court, is usurping the Zoning Board of 

Adjustment’s statutory function; the merits of this matter have been appealed to the 

Board and it is within the province of that body to determine, in the first instance, 

whether the Code is preempted by the Pennsylvania Liquor Control Board’s

(PLCB) issuance of off-premises catering permits and whether temporary use of a 

property zoned RM-1 for a seasonal beer garden as a result of stringing together 

off-premises catering permits issued by the PLCB is a valid use or contrary to the 

public welfare.

3

 

The courts should not, and cannot, rewrite valid local zoning 

ordinances or enjoin their enforcement under the auspices of the judiciary’s 

 

3

Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 58 (Pa. Cmwlth. 1999) 

(“a zoning hearing board is the entity charged with the interpretation and application of the 

zoning ordinance. It is well settled that a zoning hearing board's interpretation of its own zoning

ordinance is entitled to great weight and deference from a reviewing court. This principle is also 

codified in Section 1921(c)(8) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(c)(8). 

The basis for the judicial deference is the knowledge and expertise that a zoning hearing board 

possesses to interpret the ordinance that it is charged with administering.”) (citations omitted). 
JGC-4

inherent equitable powers.

4

 The order of the Court of Common Pleas of 

Philadelphia County dated July 10, 2015 should be reversed.

______________________________________

JAMES GARDNER COLINS, Senior Judge

 

4

See American Federation of Labor v. American Sash and Door Co., 335 U.S. 538, 553 (1949) 

(Frankfurter, J, concurring) (“Even where the social undesirability of a law may be convincingly 

urged, invalidation of the law by a court debilitates popular democratic government. Most laws 

dealing with economic and social problems are matters of trial and error. That which before trial 

appears to be demonstrably bad may belie prophesy in actual operation. It may not prove good, 

but it may prove innocuous. But even if a law is found wanting on trial, it is better that its 

defects should be demonstrated and removed than that the law should be aborted by judicial fiat. 

Such an assertion of judicial power deflects responsibility from those on whom in a democratic 

society it ultimately rests the people.”); Bilbar Construction Co. v. Board of Adjustment of 

Easttown Township, 141 A.2d 851, 856 (Pa. 1958) (“...what serves the public interest is 

primarily a question for the appropriate legislative body in a given situation to ponder and 

decide. And, so long as it acts within its constitutional power to legislate in the premises, courts 

do well not to intrude their independent ideas as to the wisdom of the particular legislation. 

Specifically, with respect to zoning enactments, judges should not substitute their individual 

views for those of the legislators as to whether the means employed are likely to serve the public 

health, safety, morals or general welfare.”).