Pa. Tavern Ass'n v. Com., Liq. Control Bd.

ROBERTS, Justice,

concurring.

I agree that the order of the Commonwealth Court should be reversed, but cannot accept the reasons set forth by the majority. I do not agree with the majority that appellees have an adequate remedy at law. In my view the action should be dismissed because appellees lack standing.

In 1972 the Liquor Control Board (Board) determined that the franchise agreements between appellants, three Lancaster County beer distributors, and their common management and consulting firm, also an appellant, violated the Pennsylvania Liquor Code.1 The Board im*573posed sanctions suspending appellants’ respective distributors licenses for a period of twenty-one days and thereafter, “until persons other than the licensees had been divested of all interests in the licensed premises.” The Board ruling was appealed by all three distributors to the Court of Common Pleas, which sustained the Board’s order.

The three distributors subsequently appealed to the Commonwealth Court but, prior to argument and submission of briefs, entered into a stipulation with the management and consulting firm and the Board, agreeing to cancel and modify all existing contracts with the firm, in a manner consistent with the opinion of the Court of Common Pleas. In exchange for this and the distributors’ agreement to withdraw the appeal, the Board vacated its original order and imposed a $1,000 fine upon each licensee in lieu of suspension.

Shortly after the appeal was withdrawn, appellees, associations representing competing businesses licensed by the Board, filed this action in mandamus in the Commonwealth Court to compel the Board to enforce the original suspension order. Appellants were granted leave to intervene. The Commonwealth Court dismissed preliminary objections to appellees’ standing and issued the requested writ. The court held that the Board lacked authority to modify its order after it had been sustained by the Court of Common Pleas and, therefore, the stipulation entered into after appeal to the Commonwealth Court was a nullity.2

The majority passes over the issue of standing and denies the writ because it perceives an adequate remedy at law. It is jurisprudentially preferable to rule on standing before addressing other issues. However, since the majority’s decision is based on the availability of manda*574mus, I will state my disagreement with its reasoning before discussing the issue of standing.

The majority denies the writ of mandamus, holding that there is a remedy at law in the form of a petition to the Court of Common Pleas to enforce its order sustaining the license suspensions imposed by the Board. There is no such remedy. Appellees could do no more than request the court to allow an amicus brief which it may, in its discretion, consider. This speculative possibility does not constitute an adequate remedy at law.

The majority suggests the novel proposition that a nonparty may petition the court to enforce an order, after the parties of record have settled the issue among themselves. However, the majority offers no authority for its proposal. 60 C.J.S., Motions and Orders § 67 (1958), cited by the majority, is of no assistance. That section concerns the powers of courts to make effective their orders. Nowhere does it suggest that courts should even consider prayers submitted by a nonparty.

Moreover, it is clear that appellees have no hope of becoming parties to the suit. Even if the Court of Common Pleas were to consider the suit still pending — despite an appeal and settlement by the parties — based upon the dubious argument that a suit cannot become final until all orders have been complied with, appellees can assert no legal right to intervene. Intervention is governed by Rule 2327 of the Rules of Civil Procedure, which provides that:

“At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or
*575(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or
(3) such person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.

Appellees do not come within any of the four categories. Sections (1) and (2) are obviously inapplicable. Although the Liquor Code permits a limited class of institutions to appeal from the granting or transfer of a license,3 there is no comparable provision permitting appellees to join in the appeal from an enforcement proceeding brought against other licensees. Finally, appellees lack a “legally enforceable interest” which will be affected by the determination, as required by section (4).4

The Court of Common Pleas has no obligation to accept or act upon a petition relative to a suit to which the petitioner is not a party, and has no authority to permit *576intervention by appellees in the enforcement action. It is apparent, then, that appellees do not have an adequate remedy at law.

I conclude, however, that this action should be dismissed because appellees lack standing to maintain a mandamus action to require the Board to enforce its original order to suspend the licenses of the three beer distributors.

The Commonwealth Court found that the issue outstanding had not been properly raised. I cannot agree. The Board filed a preliminary objection in the Commonwealth Court stating in full: “Plaintiffs are not parties to any pending action before the Pennsylvania Liquor Control Board, in which mandamus is sought.” The Commonwealth Court overruled the objection, interpreting it as challenging appellees’ capacity to bring an appeal from the original enforcement action and declaring it irrelevant to the present suit in mandamus. This is, indeed, an unreasonable conclusion. The Board was well aware that the instant action was in mandamus; the most reasonable interpretation of the objection was that appellees lacked standing to seek enforcement of the order by mandamus because they had not been parties to the suit in which the order had been issued. The Commonwealth Court noted that “even if we assume that the Board intended to raise the question of the plaintiffs’ lack of capacity to sue in mandamus in this Court, we must conclude that it did not succeed because of the vagueness of the objection filed.” (emphasis in original). I do not agree that the objection was too vague to apprise the court of its substance, and believe it should have considered the standing of appellees.

It is therefore necessary to consider whether appellees have standing to maintain this suit in mandamus. In Dombrowski v. City of Philadelphia, 431 Pa. 199, 204, 245 A.2d 238, 241 (1968), we held that “ & private litigant may maintain a mandamus action to en*577force a public duty when that plaintiff has an individual and beneficial interest in the litigation independent of that which is held by the public at large.” The interest must be more than the common interest of all citizens in procuring obedience to the law. Pennsylvania SPCA v. Bravo Enterprises, 428 Pa. 350, 361-62, 237 A.2d 342, 349 (1968); Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280-81 (1975) (plurality opinion). Beyond this, however, there is no minimum threshold on the magnitude of the interest. See Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. at 194-95, 346 A.2d at 282 (plurality opinion).

In addition, the injury asserted must be directly and immediately related to the action complained of, not a remote consequence. Dombrowski, 431 Pa. at 214, 245 A.2d at 246; Wm. Penn Parking Garage, 464 Pa. at 197, 346 A.2d at 282-83 (plurality opinion). This requires an examination of the nexus between the injury alleged and the action being challenged. Wm. Penn Parking, 464 Pa. at 195, 197, 346 A.2d at 282, 283 (plurality opinion).

The initial inquiry is whether appellees have alleged an individual interest in the litigation beyond the common interest of all citizens in procuring obedience to the law. Appellees allege that its members are suffering continuing financial harm from the failure of the Board to exercise its alleged duty to enforce the original suspension order against appellants.5

Appellees’ allegation, essentially, is that its members are at a competitive disadvantage vis-a-vis appellants, who allegedly are being allowed to continue operations in vio*578lation of the Liquor Code.6 Although conflicting cases can be found, the more persuasive decisions recognize the interest of a business to be protected from competition allegedly prohibited by a regulatory scheme.7 Thus, appellees have met the first test of standing, having alleged an interest distinct from that of the public at large.

The second inquiry is whether a sufficiently close connection between the action complained of and the injury alleged can be established. As was noted in Wm. Penn Parking Garage, “ [g] eneralization about the degree of causal connection required to confer standing is more difficult than generalization about the other requirements [of standing].” 464 Pa. at 197, 346 A.2d at 283 (plurality opinion). Here, appellees complain of the failure of the Board to fully implement an enforcement order against only three licenses within the Commonwealth, alleging resultant unfair competition between those licensees and appellees’ members.

in my judgment, the nexus between appellees’ alleged competitive injury and the Board’s decision not to fully implement a single enforcement order against three licensees is too remote to confer standing upon appellees. *579In reaching this conclusion, I am influenced by a competing policy consideration: agency discretion in enforcement proceedings. For purposes of standing, I find no distinction between this fact situation and a decision of the Board not to commence enforcement proceedings against a licensee allegedly operating in violation of the Liquor Code. Standing to challenge enforcement decisions relating to other parties implicates the prosecutorial discretion of the enforcement agency. It is the Board, and not competing licensees, which is charged with the enforcement of the Liquor Code.8 Therefore, standing in this context requires a showing of injury more closely related to the action complained of than would otherwise be necessary.9

This policy was relied upon in Linda R. S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). In Linda R. S., the Court found too speculative and remote the connection between plaintiff’s inability to collect support payments for her illegitimate child and the refusal of Texas prosecutors to enforce criminal nonsupport laws against fathers of illegitimate children. Mr. Justice Marshall, writing for the Court, noted that:

“The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. . . . [I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. Appellant does have an interest in the support of her child. But given the special status of criminal prosecutions in our system, we hold that appellant has made an insufficient showing of a *580direct nexus between the vindication of her interest and the enforcement of the State’s criminal laws.” 410 U.S. at 619, 93 S.Ct. at 1149.10

Similar considerations are present here, in which the alleged injury is far less compelling. As in Linda R.S., appellees lack a “judicially cognizable interest” in seeking to enforce a sanction in a controversy that was previously settled by the litigants of record. Hence, appellees are without standing to maintain this action and it is on that basis that the order of the Commonwealth Court should be reversed.

JONES, C. J., joins in this concurring opinion.

. Act of April 12, 1951, P.L. 90, §§ 101 et seq., 47 P.S. §§ 1-101 et seq. (1969) (Supp.1976). The specific provisions involved in the enforcement proceeding are substantially set forth in footnote 1 of the majority opinion.

. Pennsylvania Tavern Association v. Pennsylvania Liquor Control Board, 21 Pa.Cmwlth. 101, 352 A.2d 221 (1976).

. 47 P.S. § 4-464 (Supp.1976) permits “any church, hospital, charitable institution, school or public playground located within three hundred feet of the premises applied for” aggrieved by a decision of the Board issuing or transferring a license to take an appeal “limited to the question of such grievance.”

. The drafters’ note to section (4) states that:

“The interest justifying intervention must be a right or liability recognized and enforceable at law or in equity as distinguished from an economic motive or interest in seeing one litigant or another prevail in the proceedings: Andrews v. New Bethlehem Window Glass Co., 268 Pa. 565, 112 A. 90 (1920); Appeal of Phila. & Reading Coal & Iron Co. (No. 2), 22 D. & C. 475 (1935); Farmers’ Mutual Ins. Co. v. New Holland Turnpike Co., 122 Pa. 37, 15 A. 563 (1888); Hassinger v. Hassinger, 20 C.C. 485 (1898); Tonkonogy v. Levin, 106 Pa. Superior Ct. 448, 162 A. 315 (1932).”

Appellees assert only that they are suffering economic harm from the failure of the Board to enforce the order of the Lancaster County Court.

. In determining standing, the ultimate question whether the Board is in fact under a duty to enforce the order is not implicated. See Wm. Penn Parking Garage, 464 Pa. at 200, 346 A.2d at 285 (plurality opinion).

. In its brief, appellees also assert an interest in maintaining the integrity of enforcement of the Liquor Code. This, however, is an interest no different from that of the public at large in procuring obedience to the law.

. Delaware County National Bank v. Campbell, 378 Pa. 311, 106 A.2d 416 (1954) (national bank could challenge merger between state banks enhancing competitive potential of local competitor because statutory scheme governing banks designed to protect creditors and stockholders of banks from bank failure caused by excessive competition); e. g., Association of Data Processing Service Organizations, Inc., v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (data processing businesses have standing to challenge administrative ruling permitting national banks to compete in field because regulatory scheme arguably protects nonbank competitors).

But cf. Ritter Finance Company v. Myers, 401 Pa. 467, 165 A.2d 246 (1960) (small loan company could not challenge grant of a license to a competitor because regulatory scheme not concerned with the level of competition between small loan companies).

. 47 P.S. § 4-471 (Supp.1976).

. Cf. State Board of Undertakers v. Joseph Sekula Funeral Homes, Inc., 339 Pa. 309, 14 A.2d 308 (1940) (association of funeral directors had no standing to appeal in a license revocation proceeding because it had no direct interest therein). See also cases cited in note 4, supra.

. It is this impingement upon prosecutorial discretion which explains the apparent inconsistency between the remoteness analysis in Linda R.S. and other standing cases not involving enforcement proceedings. In United States v. Students Challenging Regulatory Agency Procedure, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (SCRAP), for example, the Court found a sufficient nexus to confer standing between a general increase in shipping rates, which was alleged to discriminate against the shipping of recyclable materials vis-a-vis primary ores, and an adverse effect upon plaintiffs’ “camping, hiking, fishing, and sightseeing” in the Washington Metropolitan area, allegedly resulting from the greater expense the rates imposed upon the reclamation of waste from the area. It is clear that the nexus between the action complained of and the plaintiffs’ injury in SCRAP was far more tenuous than in Linda R.S., where it was undisputed that the prosecutor would routinely have brought charges against a former spouse, providing a strong incentive for the father to provide support and avoid punishment. As Professor Davis has noted, absent the consideration of prosecutorial discretion, the two cases would be more easily reconcilable if each had been decided the other way. K. Davis, Administrative Law Treatise §§ 22.02-7, 22.02-10, at 499, 507-08 (Supp.1976).