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JOE'S ENTERPRISES STROUDSBURG v. COUNTY SCHUYLKILL (03/24/83)

decided: March 24, 1983.

JOE'S ENTERPRISES OF STROUDSBURG, INC. AND ELVIN VERNON, APPELLANTS
v.
COUNTY OF SCHUYLKILL, APPELLEE



Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of County of Schuylkill v. Joe's Enterprises of Stroudsburg, Inc. and Elvin H. Vernon, No. S-1017-79.

COUNSEL

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

Charles L. Frank, for appellee.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 73 Pa. Commw. Page 125]

This case comes before the Court on appeal from an order of the Schuylkill County Court of Common Pleas, which restrained defendant property lessee*fn1 from operating its adult bookstore in a residential district. We affirm.

The premises involved is an improved parcel located in an R-2 single family residential district which

[ 73 Pa. Commw. Page 126]

Joe's Enterprises of Stroudsburg, Inc. (Joe's) leased from the non-party owners effective June 15, 1979. Joe's commenced the controversial use of the building in early July, 1979, and was promptly notified that it was in violation of several sections of the Schuylkill County Zoning Ordinance (ordinance). Joe's then applied for, and was denied, a permit to continue its commercial and retail sales use of the structure. Within days of that denial, the county filed an action*fn2 in equity seeking to restrain Joe's from further allegedly illegal activity. Some forty-four days after the denial Joe's filed an untimely*fn3 appeal from it to the zoning hearing board (board) which unilaterally decided to hold the appeal in abeyance pending the outcome of the equity action now under review.

Appellant Joe's raises three questions for our examination: (1) whether the appeal from the zoning permit request stays the equity action sub judice under Section 916 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10916, (2) whether the board's presumption that the equity action is not stayed, and its resultant failure to hold a hearing, cause the permit request to be "deemed" approved under Section 908(9) of the MPC, 53 P.S. § 10908(9), and (3) whether the county's alleged lack of clean hands defeats the equity action. We shall address these issues seriatim, within the limits of our scope of review in equity matters -- ascertainment of whether the trial court abused its discretion or committed an error of law. Borough of Trappe v. Longaker, 59 Pa. Commonwealth Ct. 572, 576, 430 A.2d 713, 716 (1981).

[ 73 Pa. Commw. Page 127]

Joe's assigns as error the common pleas court analysis and application of Section 916 of the MPC, 53 P.S. § 10916. That provision reads, in pertinent part:

Upon filing of any proceeding referred to in section 914 and during its pendency before the board all land development pursuant to any challenged ordinance, order or approval of the zoning officer or of any agency or body, and all official action ...


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