Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Evelyn Laspino, t/a Minds Health in Bodys Health Spa v. Frank L. Rizzo, Mayor of the City of Philadelphia; Joseph F. O'Neill, Commissioner of Police; Dominick Sabatini, Commissioner of Licenses and Inspections; Sheldon L. Albert, City Solicitor; and Lewis D. Polk, M.D., Commissioner of the Department of Health, No. 159 October Term, 1976.
Barbara R. Axelrod, Assistant City Solicitor, with her James M. Penny, Jr., and Sheldon L. Albert, City Solicitor, for appellants.
Sandra W. Weckesser, with her Sharon Susser Harzenski, and, of counsel, Joel H. Slomsky and Edward Reif, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Blatt, DiSalle and Craig. Judges Rogers and MacPhail did not participate. Opinion by President Judge Bowman.
[ 40 Pa. Commw. Page 626]
This is an appeal from an order of the Court of Common Pleas of Philadelphia County, which granted appellee/plaintiff's motion for summary judgment upon appellee/plaintiff's complaint in equity, declaring Section 9-610(4) of The Philadelphia Code unconstitutional and permanently enjoining the enforcement thereof. Although both parties have submitted briefs which address exclusively and comprehensively the
[ 40 Pa. Commw. Page 627]
constitutional issues presented, we cannot reach the merits of these arguments because we believe that the lower court improperly entered summary judgment, given the factual record before it. We are constrained, therefore, to reverse and remand.
Underlying this case is the constitutionality of Section 9-610(4) of The Philadelphia Code which relates to the regulation of "massage businesses" in the City of Philadelphia. The section in question provides: "No person employed or engaged in the business of a masseur or masseuse shall treat a person of the opposite sex." Other sections of the ordinance establish certain exemptions to this prohibition, prescribe licensing procedures and impose penalties.
On October 5, 1976, appellee/plaintiff filed in the Court of Common Pleas of Philadelphia County a "Complaint in Equity." Therein, plaintiff alleges, inter alia, that she is the owner and operator of Minds Health in Bodys Health Spa located in Philadelphia and that she is the holder of a masseuse operator license and a mercantile license, both issued by the Department of Licenses and Inspections of the City of Philadelphia. Plaintiff further alleges that:
Numerous males patronized the MINDS HEALTH IN BODYS HEALTH SPA, received body massages, and paid fees for the same, and plaintiff continued to operate said business, earn a living, and practice a legitimate occupation until July 20, 1976 when Philadelphia police officers, without in any way inviting themselves as the same, entered her premises, harassed plaintiff, interfered with plaintiff's business operations and arrested plaintiff for . . . [selling wine without a license].*fn1
[ 40 Pa. Commw. Page 628]
Plaintiff alleges that on July 21, 1976, she appeared at an arraignment on these charges and was discharged. The remaining "factual" ...