46 South 52nd St. Corp. v. Manlin

Decision Date18 January 1960
Docket NumberOscar MANLIN and Theodore Berman,Appellants in No. 121.
Parties46 SOUTH 52ND STREET CORPORATION and Charles Brait, Samuel Brait, Paul Brait, Bernard Brait and Benjamin Cohen, Trading as Brait's Men's Furnishings, Appellant's in No. 185, v.
CourtPennsylvania Supreme Court

Edward Davis, Sheldon Tabb, Philadelphia, for Oscar Manlin.

Jerome J. Cooper, Wolkin, Sarner & Cooper Philadelphia, for 46 South 52nd Street Corp. and others.

Harold E. Kohn, Dolores Korman, Dilworth, Paxson, Kalish, Kohn &amp Dilks, Philadelphia, for Select Magazines, Inc., and others.

Arthur Littleton, Philadelphia, for Bulletin Co.

Harold E. Kohn, Philadelphia, for Philadelphia Inquirer and Philadelphia Daily News.


COHEN, Justice.

Plaintiffs instituted this action in equity to enjoin defendants from operating a newsstand for the sale of newspapers, magazines, pocket books and comic books on the sidewalk of a public street in Philadelphia.

The defendant, Oscar Manlin, started selling newspapers in Philadelphia in 1932. At that time he was going to high school, and after school, with the permission of the then owner of 46 South 52nd Street (which is on the Northwest corner of 52nd and Chestnut Streets), he would sell his newspapers from a small wagon located on the sidewalk. After he had been working there for three months, he asked the Philadelphia Evening Bulletin for a newsstand which was set up on the corner. Originally, it was about four feet long, five and a half feet high and about tweny-four inches wide. Since then he has gradually added various racks, additional stands and benches so that at the time of the commencement of the present action in equity in November, 1956, the newsstand was comprised of two newspaper stands, several benches and racks and a magazine stand, all of which were approximately 9 feet 4 1/4 inches long and 6 feet 3 inches high. There are sold on defendant's newsstand six or seven newspapers, approximately 300 different magazines and many kinds of comic books and pocket books and several racing forms. Approximately 40% of the physical space of the newsstand is devoted to the sale of newspapers and 60% to magazines, comic books and pocket books. A little more than 50% of the gross income of the newsstand is derived from the sale of newspapers, the balance from the sale of the other printed matter.

In 1944, plaintiff corporation acquired title to 46 South 52nd Street at a cost of $100,000. Prior to that time, the individual plaintiffs, trading as the partnership of Brait's Men's Furnishings, the partners of which concern are also proportionate owners of plaintiff corporation, were tenants of 46 South 52nd Street as well as the adjoining premises, 44 South 52nd Street, and occupied both as a men's wear retail store.

In 1953, plaintiffs purchased and leased additional properties and undertook extensive and costly remodeling at their 52nd Street store, breaking down all the adjacent walls between what was formerly three premises and creating a new single store front on 52nd Street. The volume of business carried on by Brait's is approximately $250,000 per year.

In 1954, defendant Manlin voluntarily took up full time employment elsewhere as a salesman and since then has permitted various other licensees or assignees (among them defendant Berman) to operate the stand for him. [1] He has been receiving no compensation from these operators but is allowing them to operate the stand with his permission until such time as he is able to sell it, with the informal understanding that the particular operator will have the first opportunity of buying it. Defendant never paid anything to the abutting property owner or other persons for the newsstand itself or the right to operate it at this location.

The newsstand is located approximately 22 feet north of the north curb line of Chestnut Street and 2 1/2 feet west of the west curb line of 52nd Street, so that the stand is opposite the show windows and vestibule of plaintiffs' premises and takes up approximately 40% of the width of the sidewalk at this point on 52nd Street. There is also a bus stop at this corner and buses pick up and discharge passengers at the curb directly to the rear of the newsstand.

On Saturday nights additional portions of the sidewalk in front of plaintiffs' entranceway and adjacent to the newsstand are used for the storage of the Sunday editions of the Philadelphia papers.

All of the operators of the newsstand have used the vertibule of plaintiffs' premises (within the building line) for the storage and sale of newspapers. On Sundays, with the knowledge and permission of defendant, certain persons have operated the newsstand by placing parts of same in the vestibule of plaintiffs' premises. No specific relief has been asked against this Saturday or Sunday use. No relief was granted by the court below or argued on appeal.

Prior to the institution of this action, plaintiffs requested defendant to remove his newsstand to the sidewalk on the Chestnut Street side of plaintiffs' premises which he refused to do.

The Chancellor filed his adjudication and issued a decree nisi which dismissed plaintiffs' complaint in equity, reduced the size of the newsstand to a main newsstand 5 feet 9 inches long and a smaller stand and receptacle for debris and permitted the sale of newspapers, magazines, comic books and pocket books. Plaintiffs filed exceptions to the findings of fact, conclusions of law and adjudication of the Chancellor, and a majority of the court en banc, including the Chancellor, entered an order which modified the decree nisi so as to permit the defendant to operate and maintain a single newsstand 4 feet 11 inches in length at the base, 32 inches in width at the base, and 65 inches in height, extending upward in the rear to form a triangle with the base and containing a removable covering from the height to the front of the base top; and enjoined him from adding or attaching any benches, boxes, racks, extensions, fixtures or other appurtenances to, at or near the aforesaid newsstand; and from maintaining any smaller stand of any type or nature whatsoever. It was provided therein that daily Philadelphia newspapers only should be sold, the sale of out-of-town newspapers, magazines, comic books and pocket books being prohibited. President Judge Hagan filed an opinion dissenting from the dismissal of plaintiffs' exceptions and supporting the absolute prohibition of the newsstand.

Defendant has appealed from the order of the court en banc and plaintiffs subsequently filed their cross appeal.

The question has been raised initially as to whether the plaintiffs have followed the necessary procedural steps in bringing this lawsuit, in light of the Act of May 3, 1927, P.L. 515, § 1, 17 P.S. § 305. [2] That Act established that in certain situations involving encroachments on public sidewalks, a complaining citizen must first give written notice to the municipality and allow the proper officials 30 days within which to act before such citizen may invoke the equity powers of a court of common pleas for relief against the encroachment.

The Act of 1927, as we read it, does not apply to the instant case. Prior to passage of the Act, courts of common pleas possessed the equitable power and jurisdiction to give relief against a sidewalk encroachment upon the complaint of either a municipality or a citizen who has suffered damage or injury special to himself. Thomas v. Inter-County Street Ry., 1895, 167 Pa. 120, 31 A. 476; Riley v. Pennsylvania Co., 1907, 32 Pa.Super. 579. The courts, however, did not have the equitable power to give relief to a citizen whose injury was not direct. Rhymer v. Fretz, 1903, 206 Pa. 230, 55 A. 959. The purpose of the Act, thus, as expressed both in its title [3] and in the main body of the statute, [4] is to grant additional equity powers to such courts in cases wherein the complaining citizen has not suffered damage or injury special to himself. In the latter situation, the Act provides that the citizen must give the municipality 30 days written notice, during which time the municipality must either fail or refuse to act, before instituting suit himself. The property owner who has suffered direct harm and who was always able to invoke the aid of the courts was not meant to be covered by this procedural requirement.

If the legislature had intended to set up a procedural roadblock for property owners who sustained an injury peculiar to themselves and different from that sustained by the general public, it would have done so expressly. We will not read such a requirement into the Act. Plaintiffs, claiming direct injury to their property rights by the existence of defendant's newsstand, were entitled to bring this action without prior written notification to the City of Philadelphia.

The theory upon which plaintiffs sought relief in equity was that defendant's operation of the newsstand constituted both a trespass and a nuisance. It appears from the record that 52nd Street was originally dedicated to public use in 1854 by deed of dedication and in 1901 it was widened as the result of condemnation proceedings. The newsstand appears partly on that land which was acquired by deed of dedication and partly on that part of the highway which was acquired by condemnation. In either case, the City did not acquire title to the fee. As to dedication, see Hoffman v. City of Pittsburgh, 1950, 365 Pa. 386, 75 A.2d 649; Sterling's Appeal, 1885, 111 Pa. 35, 2 A. 105; Versailles Township Authority of Allegheny County v. City of McKeesport, 1952, 171 Pa.Super. 377, 90 A.2d...

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