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CLYDE W. HORST ET AL. v. COMMONWEALTH PENNSYLVANIA (07/12/79)

decided: July 12, 1979.

CLYDE W. HORST ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT. IN RE THE MATTER OF: OLDE HICKORY RACQUET CLUB, 2323 OREGON PIKE, LANCASTER, PENNSYLVANIA



Appeal from the Orders of the Industrial Board of the Department of Labor and Industry in cases of In Re: Hershey Racquet Club, Docket No. 906-BK-S, MA 161038, Order No. 305-12761; and In Re: Olde Hickory Racquet Club, No. 564-BL-S, MA 162942, Order No. JAD-5771.

COUNSEL

Christopher W. Mattson, with him Barley, Snyder, Cooper & Barber, for petitioners.

David Haller, Assistant Attorney General, for respondent.

Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 44 Pa. Commw. Page 219]

These appeals were consolidated for argument because of the similarity of the legal issues.

Petitioners Horst et al. are the owners of an indoor tennis facility, the Hershey Racquet Club (Hershey), which is the subject of the first of these two appeals, 1874 C.D. 1977. They are also the owners of the Olde Hickory Racquet Club (Olde Hickory), which is the subject of the second appeal, 1312 C.D. 1978. The Industrial Board of the Department of Labor and Industry (Board) found both buildings to be in violation of the Fire and Panic Act, Act of April 27, 1927, P.L. 465, as amended, 35 P.S. § 1221 et seq., and the regulations promulgated thereunder. We reverse the Board.

[ 44 Pa. Commw. Page 220]

As required by Section 8 of the Act, 53 P.S. § 1228,*fn1 petitioners submitted proposed construction plans for Hershey to the Department for its review. The plans were reviewed and approved by a Department plans examiner, after he had consulted with his immediate supervisor and a second plans examiner on the acceptability of the plans. The plans, as approved, showed eight tennis courts plus shower and locker facilities, and also a raised area having its floor level at an elevation higher than that of the tennis courts. That raised area, which is the subject of the present dispute, was primarily an open area, but did contain a T.V. room, a storage room, a retail area for the sale of tennis equipment, and a room containing a washer and dryer.

Construction was completed in September, 1976, at which time petitioners so notified the Department, as required by Section 9 of the Act, 35 P.S. § 1229. After an inspection in December, 1976, the Department's district supervisor notified petitioners of several minor violations of the Act and Department regulations. In that letter, the district supervisor referred to Hershey as a "One-Story Building."

On March 28, 1977, the district supervisor conducted a second inspection, the results of which he set

[ 44 Pa. Commw. Page 221]

    out in a letter dated April 7, 1977. In that letter he referred to Hershey as a "Two-Story Building," and found that the walls ...


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