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BENTLEYVILLE PLAZA v. BENTLEYVILLE PLAZA (10/23/78)

decided: October 23, 1978.

IN RE: BENTLEYVILLE PLAZA, INC., 611 SINCLAIR AVENUE, MCKEESPORT, PA. 15131, CONCERNING CERTAIN PREMISES IN SOMERSET TOWNSHIP, WASHINGTON COUNTY, PENNA., KNOWN AS A.A. BOOK STORE. COMMONWEALTH
v.
BENTLEYVILLE PLAZA, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Washington County in cases of In Re: Bentleyville Plaza, Inc., 611 Sinclair Avenue, McKeesport, Pa. 15131, Concerning Certain Premises in Somerset Township, Washington County, Penna., known as A.A. Book Store, No. 145 August Term, 1977; and Commonwealth of Pennsylvania v. Bentleyville Plaza, Inc., No. 751 of 1977.

COUNSEL

David M. Priselac, for appellant.

John J. Kennedy, Jr., Assistant Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 38 Pa. Commw. Page 236]

The Bentleyville Plaza, Inc. (appellant) appeals here from two orders of the Court of Common Pleas of Washington County. The first order, in the criminal division of the court below, affirmed a summary conviction of the appellant by a justice of the peace based upon alleged violations of the Fire and Panic Act*fn1 (Act) and regulations thereunder. The second order was in the civil division of the court below and directed the closing of a building owned by the appellant, citing the aforesaid summary conviction.

[ 38 Pa. Commw. Page 237]

The appellant is a Pennsylvania corporation, and the building in question is being leased and used as an adult book store, known as the "A.A. Book Store." The State Department of Labor and Industry, acting through its Bureau of Occupational and Industrial Safety, advised the appellant by letter in April of 1977 that the building had been reclassified as a place of assembly, i.e. as a movie theatre. The letter also indicated that a field inspection of the premises showed eight violations of the Act, and the appellant was directed to correct these violations by June 21, 1977. On June 10, 1977, however, eleven days prior to the abatement date, the Department filed a criminal complaint with the local justice of the peace citing the appellant's alleged violations of the Act. A hearing on this matter before the justice of the peace was scheduled for July 6, 1977 but was continued to August 8, 1977, at the Department's request and over the appellant's objections. Following the hearing, the justice of the peace found the appellant guilty of four of eight alleged violations and ordered that the premises be closed pending compliance with the Act and the relevant regulations. The appellant appealed this determination to the lower court on August 11, but that same day the Department, without notice to the appellant or its counsel, presented itself before the lower court and obtained an order that the Sheriff close the premises. The appellant's counsel immediately filed a motion to vacate the order and requested a hearing before the lower court. Following such hearing, the lower court denied the motion to vacate its order, affirmed the finding of four violations, and denied supersedeas pending appeal. Upon appeal to this Court, however, a supersedeas was granted setting aside the order closing the premises on the condition that the movie booths within the building remain closed.

[ 38 Pa. Commw. Page 238]

The appellant argues that both orders of the court below should be vacated because the Department improperly brought proceedings before both the justice of the peace and the lower court without allowing time for the appellant to correct the alleged violations and without following its own administrative procedures.

Section 12 of the Act provides that, when the Department issues an order to an owner of a building to comply with the provisions of the Act or its implementary rules and regulations promulgated thereunder, and when the owner fails to comply within the time specified, the Department is authorized to order the building to be placed out of service.*fn2 Section 13 of the Act provides that prosecutions for failure to observe an order and to secure its enforcement may be in the form of summary criminal proceedings instituted before a justice of the peace.*fn3 The procedures to be followed,

[ 38 Pa. Commw. Page 239]

    however, which must be applicable to all proceedings for the enforcement of the Act, are established by the regulations promulgated by the Department, and ...


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