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ELLWEST STEREO THEATERS v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH AND PAUL IMHOFF (11/24/81)

decided: November 24, 1981.

ELLWEST STEREO THEATERS, INC., APPELLANT
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH AND PAUL IMHOFF, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Ellwest Stereo-Theaters, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh and Paul Imhoff, No. SA 734 of 1980.

COUNSEL

Yaier Y. Lehrer, for appellant.

D. R. Pellegrini, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellees.

Leonard D. Silk, for intervenor, RMF Investment Company.

President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 62 Pa. Commw. Page 590]

Ellwest Stereo Theaters, Inc. (Ellwest) appeals from an order of the Court of Common Pleas of Allegheny County affirming a decision of the Zoning Board of Adjustment of the City of Pittsburgh which denied Ellwest's appeal from the Building Inspection Bureau's citation of Ellwest for violating an occupancy permit.

Pursuant to an earlier order of the common pleas court, dated February 8, 1973, the bureau had issued Ellwest an occupancy permit to operate an amusement arcade with "movie machines only"; accordingly Ellwest then installed machines which, upon insertion of coins, were activated to display movies upon a screen. However, commencing in December, 1979, Ellwest installed devices which, upon the insertion of coins, raised a visual barrier to reveal a semi-nude woman dancing live on stage.

The bureau, after investigating the premises, determined that Ellwest, by replacing the movies with a live dancer, was conducting live performances, considered by the bureau to be impermissible under an occupancy permit for an amusement arcade.

Here Ellwest contends that the effect of the common pleas court's 1973 order granting Ellwest an occupancy permit is limited only to the type of machines which Ellwest may have on the premises. Specifically, Ellwest argues that the order's limiting language, authorizing a "permit to occupy . . . as an amusement

[ 62 Pa. Commw. Page 591]

    enterprise with adult coin operated movie machines only " (emphasis added), does not limit the machines to being used only for the purpose of showing movies. That view is unacceptable.

If we were to accept Ellwest's position, an order obviously written to limit the category of entertainment ...


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