Boron v. Pulaski Township Bd. of Supervisors, 960 A.2d 880 (Pa. Cmwlth. 2008).

An ordinance was found to be unconstitutionally vague when it failed to define the phrase “state recognized holidays” and gave no reference to any ordinance or law defining such phrase.
Case Details:

Boron owns Adultland XXX, a sexually oriented business.  The Township has an Ordinance providing that all sexually oriented businesses must be closed on state recognized holidays.  Adultland was open on Flag Day, and the police chief suspended their license for being open on a state recognized holiday.  Adultland appealed and the Township Supervisors held a meeting.  The Township pointed to 44 P.S. § 11 (the “1893 Act”), which provides that Flag Day is a state recognized holiday.  Adultland argued that the Ordinance was unconstitutionally vague because it does not define “state recognized holidays” and does not reference the 1893 Act.  The Township Supervisors and the trial court affirmed the revocation of the license.

Adultland appealed to the Commonwealth Court.   The Township argued that Adultland should be barred from litigating this issue because it had already challenged the constitutionality of the Ordinance at issue. Further, the Township argued that Adultland should have brought this action by a declaratory judgment action.   Pursuant to the doctrine of res judicata, a party cannot litigate an issue which has been decided in a prior proceeding at which the parties had an opportunity to assert their rights.  Previously, Adultland had challenged the constitutionality of the term “principal purpose” in the Ordinance.  The Commonwealth Court found that this action is not barred because it challenges a different provision.

Next, the Commonwealth Court rejected the Township’s argument that this action should have been brought as a declaratory judgment action.  A party cannot raise issues for the first time on appeal from a local agency.  However, constitutional challenges are the exception to that rule.  Finally, the Commonwealth Court addressed the substantive merits of the case.  An ordinance is unconstitutionally vague when it “requires men of common intelligence to guess at its meaning.”  Here, the Ordinance did not indicate that the 1893 Act was incorporated into its terms, and the Ordinance in no way provided guidance on the definition of “state recognized holiday.”   The Commonwealth Court found that the Ordinance was unconstitutionally vague as to the meaning of “state recognized holidays.”

Date of Decision: 11/19/08

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