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GARY L. BABIN AND BARBARA N. BABIN AND TKC LTD. INC. D/B/A KING CLUBS HEALTH SPA A/K/A KING CLUBS v. CITY LANCASTER (04/28/89)

decided: April 28, 1989.

GARY L. BABIN AND BARBARA N. BABIN AND TKC LTD. INC. D/B/A THE KING OF CLUBS HEALTH SPA A/K/A THE KING OF CLUBS, APPELLANTS
v.
CITY OF LANCASTER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lancaster County, in the case of City of Lancaster v. Gary L. Babin and Barbara N. Babin and TKC Ltd. Inc. d/b/a The King of Clubs Health Spa, a/k/a The King of Clubs, Equity Docket No. 22, Page 74.

COUNSEL

Marvin Beshore, with him, Luther E. Milspaw, Jr., Milspaw & Beshore, for appellants.

William C. Crosswell, Morgan, Hallgren, Crosswell & Kane, P.C., Assistant City Solicitor, for appellee.

Judges Colins and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 125 Pa. Commw. Page 471]

Gary L. Babin, Barbara N. Babin and TKC Ltd. Inc., d/b/a The King of Clubs Health Club a/k/a The King of Clubs (Appellants) appeal the order of the Court of Common Pleas of Lancaster County granting the petition of the City of Lancaster (Appellee) which requested that judgment be entered against Appellants in the amount of $170,200.00 in accumulated fines and that the Prothonotary pay over to Appellee all funds which Appellant had posted as security for a supersedeas previously granted by the trial court. We affirm the trial court.

This Court's prior decision in Babin v. City of Lancaster (Babin I), 89 Pa. Commonwealth Ct. 527, 493 A.2d 141 (1985), serves as the factual background to the instant case. On October 8, 1980, the Zoning Hearing Board of the City of Lancaster (Board) granted Appellants a special exception to operate a health spa. An investigation conducted by the Zoning Officer of Lancaster concluded that Appellants were in fact operating a massage parlor. When Appellants failed to respond to a notice of violation issued by the Board, Appellee filed a complaint in equity seeking an order permanently enjoining Appellants from operating a massage parlor.

On October 4, 1983, the trial court entered a decree nisi permanently enjoining Appellants from operating the business in which they were engaged, but permitting operation of a business which would comply with the special exception granted. Gary and Barbara Babin were fined $1000.00 apiece. The trial court's order further provided that any failure to comply with its order would result in a fine of $200.00 per day. Appellants filed exceptions and on January 10, 1984, the trial court entered a modified decree nisi permanently enjoining Appellants from operating

[ 125 Pa. Commw. Page 472]

    any business on the premises and re-affirming its previous order concerning the $200.00 per day fine.

Appellants continued operating their business and appealed to the Superior Court which transferred the matter to this court. On January 13, 1984, Appellants filed an application for supersedeas pending appeal, which application was uncontested. On January 13, 1984, the trial court entered an order stating that

     a supersedeas is granted pending the outcome of the Defendants' appeal, provided that the Defendants shall deposit with the Office of the Prothonotary of the Court of Common Pleas of Lancaster ...


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