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ELVIN VERNON AND ELVIN VERNON v. BOROUGH DARBY ET AL. (04/24/81)

decided: April 24, 1981.

ELVIN VERNON AND ELVIN VERNON, INC., APPELLANTS
v.
BOROUGH OF DARBY ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Elvin Vernon, Elvin Vernon, Inc. v. Borough of Darby, Armenta Carter, Robert Beaver, Margaret Griffity, Michael Meara, Edith Michael, Charles Sanders, Wilbur Smith, Frank Spaide, Russel Emary, Timothy Coonley, David J. Alexander and J. Reynolds, No. 80-960, In Equity.

COUNSEL

Howard N. Stark, with him William G. Sherr, for appellants.

Alfred J. Mattei, with him Peter J. Nolan, for appellees.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Craig

[ 59 Pa. Commw. Page 12]

Elvin Vernon (together with his corporation) appeals from an order of the Court of Common Pleas of Delaware County, which denied his request for a preliminary injunction to prevent the Borough of Darby, its council members, mayor, code enforcement officer and a police officer from interfering with appellant's business operations.

Appellant's business is the sale of sexually oriented magazines and products, and the operation of ten movie booths in which films of sexual activities are shown.

In December, 1979, under the zoning ordinance, appellant applied for and received a retail sales occupancy permit for a shop on Main Street in Darby; the area was zoned non-residential.*fn1 On January 8, 1980, he applied for an amusement device license, which was issued by the code enforcement officer for "Coin

[ 59 Pa. Commw. Page 13]

    operated Amusement -- Pinball Machines and Kiddie Rides ONLY."

Four days later, the mayor entered the premises, observed the items offered for sale, and viewed one of the movies. Officer Reynolds, who was outside the shop at the time, issued a citation for violation of borough ordinance 119-1,*fn2 which requires a license for "moving picture exhibitions."

On January 14, the code enforcement officer served a violation notice on appellant which stated: "[y]ou are in violation of your license to operate and you must close all operations at once and remain close until proper license are obtained (sic)." Appellant appealed from that notice to the zoning hearing board, claiming that all further official action was stayed under the Municipalities Planning Code Section 916.*fn3

However, the following day, the borough council adopted a resolution to "immediately close the adult book store that is in violation of the Darby Borough Code." The mayor proceeded to appellant's store, asked ...


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