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MARTIN S. BERGER v. BOROUGH BETHEL PARK (06/19/74)

decided: June 19, 1974.

MARTIN S. BERGER, APPELLANT,
v.
BOROUGH OF BETHEL PARK, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Borough of Bethel Park v. John Kooshak and Martin S. Berger, No. 1645 July Term, 1973.

COUNSEL

Herbert B. Lebovitz, with him Lebovitz & Lebovitz, P.A, for appellant.

Roy F. Walters, Jr., with him Owen B. McManus and Brandt, McManus, Brandt & Malone, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 14 Pa. Commw. Page 14]

In December, 1972, appellant acquired all of the personal property of a business, a figure improvement salon, in the Borough of Bethel Park. The prior business had been granted a certificate of occupancy for such a salon in December, 1970.*fn1 In February, 1973, appellant became the lessee of the premises occupied by the prior business and began operating what he calls a "health club" and what the Borough calls a "massage parlor." The Borough, in May, 1973, sought an injunction against appellant alleging that appellant's operation of a business without a building permit and a certificate of occupancy was a violation of the Borough's zoning code. Furthermore, the business was

[ 14 Pa. Commw. Page 15]

    alleged to be a massage parlor, such a business not being a permitted use.

The Chancellor issued a preliminary injunction and after two hearings, entered a final decree on July 12, 1973, making the injunction permanent. The Chancellor made two specific findings:

"1. Since the original certificate of occupancy was issued on December 11, 1970, there have been sufficient alterations and additions to the premises known as 2405 South Park Road, Bethel Park, Allegheny County, Pennsylvania, as defined in the Borough's ordinances so as to require the application and subsequent issuance of new building and occupancy permits before any business may lawfully commence operations at said premises; and (emphasis in original)

"2. The intended business of defendant [appellant here] which would require its female employees, while topless, to administer massages to male customers is not considered a health club which is a "permitted use" pursuant to the C-2 Borough classification."

This appeal followed.

Initially, we must note that our scope of review in this equity case is restricted. As noted by President Judge Bowman in Ross v. Philadelphia Federation of Teachers, 8 Pa. Commonwealth Ct. 204, 213, 301 A.2d 405, 409-10 (1973): "Thus, insofar as concerns a Chancellor's findings of fact (not his inferences and deductions from facts not in issue), the law is clear that an appellate court can review these findngs only where there has been manifest or clear error, a clear abuse of discretion, etc. Given sufficient evidence which justifies the findings and logically sound, reasonable inferences and conclusions derived therefrom, the Chancellor's decision will stand. Even a ...


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