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SIMCO SALES SERVICE PENNSYLVANIA v. TOWNSHIP LOWER MERION BOARD COMMISSIONERS (11/08/78)

decided: November 8, 1978.

SIMCO SALES SERVICE OF PENNSYLVANIA, INC., T/A JACK & JILL ICE CREAM CO., APPELLANT
v.
TOWNSHIP OF LOWER MERION BOARD OF COMMISSIONERS, TOWNSHIP OF LOWER MERION DEPARTMENT OF POLICE, AND TOWNSHIP OF LOWER MERION DEPARTMENT OF HEALTH, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Simco Sales Service of Pennsylvania, Inc., t/a Jack & Jill Ice Cream Company v. Township of Lower Merion Board of Commissioners, Township of Lower Merion Department of Police and Township of Lower Merion Department of Health, No. 76-08466.

COUNSEL

Nathan L. Posner, with him Jeffrey B. Albert, Barry Applebaum, and, of counsel, Fox, Rothschild, O'Brien & Frankel, for appellant.

Parker H. Wilson, with him Wilson, Oehrle, Drayer & Furber, for appellee.

Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 38 Pa. Commw. Page 435]

This is an appeal from an order dismissing appellant's exceptions to a chancellor's adjudication, and making the decree nisi, which vacated a preliminary injunction and dismissed appellant's complaint, the final decree of that court. We reverse and permanently enjoin*fn1 enforcement of Lower Merion Township's ordinance No. 1769.

[ 38 Pa. Commw. Page 436]

Appellant is a Pennsylvania corporation engaged in the business of "street" sales of ice cream and related products directly to its customers from specially designed trucks operated by driver-salesmen. On May 19, 1976, Lower Merion Township (hereinafter the appellees will be referred to collectively as "Township") enacted ordinance No. 1769 which, in pertinent part, prohibited,

     the selling of merchandise, including food, for commercial purposes, from motor vehicles parked or stopped in the right-of-way of any Township street in such a manner as to require or induce the purchaser to approach the motor vehicle or the person of the seller on the sidewalk, cartway, or any other portion of the right-of-way. . . .

Appellant has conducted its business for nearly fifty years with the bulk of its revenues generated in Southeastern Pennsylvania and portions of New Jersey. Its operation in Lower Merion Township predates the enactment of ordinance No. 1769 by at least seven years. Since August of 1973 appellant has operated pursuant to permits issued and health inspections made by the Township.

Although a variety of objections to enforcement of the ordinance are advanced by appellant, since we find the enactment of ordinance No. 1769 an unreasonable and impermissible exercise of the police power by the Township we will not consider or pass upon appellant's other contentions.

A fair reading of the Township's brief and the opinion of the court below ...


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