Philadelphia News., Inc. v. Borough C., Etc., Swarthmore, Civ. A. No. 74-1569.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtFOGEL
Citation381 F. Supp. 228
PartiesPHILADELPHIA NEWSPAPERS, INC. v. The BOROUGH COUNCIL, MAYOR, MANAGER AND DIRECTOR OF PUBLIC WORKS OF the BOROUGH OF SWARTHMORE.
Docket NumberCiv. A. No. 74-1569.
Decision Date13 August 1974

381 F. Supp. 228

PHILADELPHIA NEWSPAPERS, INC.
v.
The BOROUGH COUNCIL, MAYOR, MANAGER AND DIRECTOR OF PUBLIC WORKS OF the BOROUGH OF SWARTHMORE.

Civ. A. No. 74-1569.

United States District Court, E. D. Pennsylvania.

August 8, 1974.

Declaratory Judgment August 13, 1974.


381 F. Supp. 229
COPYRIGHT MATERIAL OMITTED
381 F. Supp. 230
Bruce W. Kauffman, Philadelphia, Pa., for plaintiff

G. Guy Smith, Media, Pa., for defendants.

OPINION

FOGEL, District Judge.

STATEMENT OF THE ISSUE AND HISTORY OF THE CASE

This case presents the following issue for resolution, apparently one of first impression in the federal courts:1

Does the protection of the First and Fourteenth Amendments to the Constitution

381 F. Supp. 231
invalidate, pro tanto, an Ordinance and a Resolution of the Council of the Borough of Swarthmore, Pennsylvania, insofar as they are applied first: to totally prohibit the placement of newspaper boxes anywhere on the public sidewalk strips within the Borough, or second: to limit the placement of newspaper boxes to a three foot strip of the public sidewalk adjacent to premises within the business district of the Borough, during business hours, when such newspaper boxes are so placed by the tenant, owner or occupant of a business establishment which customarily sells newspapers

This action was brought on June 20, 1974, by plaintiff Philadelphia Newspapers, Inc., publisher of the Philadelphia Inquirer (hereinafter referred to as PNI), against defendant officials of the Borough of Swarthmore, Pennsylvania (hereinafter referred to as the Borough), seeking declaratory and injunctive relief against enforcement of Borough Ordinance No. 715, passed on March 8, 1971, insofar as it prohibits the placement of newspaper boxes along streets and on sidewalks within the Borough.

An initial hearing was held on June 21, 1974, at the conclusion of which a temporary restraining order was issued ordering the Borough to replace two newspaper boxes located at Rutgers Avenue near the Post Office, and at the intersection of Yale Avenue and South Chester Road, which it had removed a short time before this action was instituted. By consent of the parties, this temporary restraining order was to remain in effect until the subsequent hearing, which the parties agreed could be a final one because of the identical character of the factual and legal issues pertinent to the grant or denial of temporary and permanent relief. Accordingly, a final hearing was held on July 15 and 16, 1974, and the temporary restraining order was continued in effect, again with the consent of the parties, pending final decision of this Court.

JURISDICTION

Before turning to the merits of the case, a brief discussion of the basis for our jurisdiction is in order.

Jurisdiction is founded on 28 U. S.C. § 1343(3), which grants to the District Courts original jurisdiction "to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States. . . ." The substantive counterpart to § 1343(3) is 42 U.S.C. § 1983, which establishes a cause of action against "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution. . . ."2

PNI alleges deprivation by defendant officials of rights secured under the First and Fourteenth Amendments to the Constitution of the United States.3

381 F. Supp. 232

The challenged ordinance provides as follows, in pertinent part:

Section 1. DEFINITIONS
The term "Street", as used herein, refers to the public easement or right of passage as shown on the Borough map or plan of streets. A standard Borough street consists of a paved roadway, 25 feet wide, with a sidewalk strip 12½ feet wide on either side. "Property line": The legal side lines of a public street or highway. "Sidewalk strip": The portion of a street or highway on either side of the roadway, normally consisting of the curb, the unpaved grass plot, the paved sidewalk, normally four feet wide, and the remaining unpaved space extending to the property line.
Section 2. PUBLIC USE OF STREETS
With the exception of public signs, barriers, poles, meter stands and similar municipal equipment and fixtures, and the further exception of temporary obstructions incidental to loading and unloading, and to construction work, it shall be unlawful to obstruct the free public use of the streets of the Borough, or to make any commercial use thereof. Encroachments upon, under or over public streets are unlawful, and may be removed by the Borough officers and their agents, regardless of how long such encroachments have existed. This section shall not prohibit the Borough Council from making exceptions in the cases of awnings, signs or other devices where the encroachment is temporary in nature, the minimum amount necessary to accomplish the owner's purpose, and does not inconvenience the public or interfere with free passage.
* * * * * *
Section 5. SEVERABILITY
The provisions of this ordinance are severable. If any of its provisions shall be held to be invalid, the remaining provisions shall not be affected thereby. The Council hereby declares that said provisions would have been enacted notwithstanding deletion of the invalid provisions.
* * * * * *
Section 7. PENALTIES
Any person who shall violate any of the provisions of this ordinance shall be subject to a fine or penalty not exceeding $300.00 for each such offense, and in default of payment thereof, to imprisonment up to ten days. In assessing penalties the Justice of the Peace shall take into consideration whether or not the violation was wilful or unintentional.

This ordinance was modified by Resolution of May 13, 1974, which provides as follows:

In Re: SIDEWALK ORDINANCE NO. 715, APPROVED MARCH 8, 1971.
WHEREAS, Subsection 74 of Section 1202 of the Borough Code empowers boroughs to enact such ordinances, by-laws, rules and regulations as may be expedient for the proper management, care and control of the borough, and its trade, commerce and manufactures; and
WHEREAS, the Council of the Borough of Swarthmore believes that the prosperity of persons earning their living in the Business District, as delineated in the zoning ordinance, would be promoted, without detriment to the public welfare, if temporary, limited used of public sidewalks in front of their establishments for display of goods and advertising of services and facilities were permitted;
NOW, THEREFORE, the Council does hereby resolve that it shall be lawful for any tenant, owner or occupant of premises in the Business District of the Borough, so long as this Resolution remains in effect, to utilize not more than three feet of the public sidewalk adjoining his said premises for the orderly advertising and display of goods, wares and merchandise, and services and facilities available in or from said place of business. The portion of sidewalk so utilized shall be
381 F. Supp. 233
closest to the store front, and not wider than the width of such store, office or shop along such street.
Any owner, occupant or tenant who makes use of such portion of the public sidewalk pursuant to this authorization shall thereby be held to agree to the following rules and regulations, upon which the privilege is conditioned:
1. The privilege is revocable, in whole or part, by mo- omitted from Exhibit "B" to the Complaint Council, at anytime, and without prior notice, or obligation to furnish reasons for such revocation.
2. The Borough is not hereby surrendering its jurisdiction over the public sidewalks as same exists by law, and as set forth more particularly in Ordinance No. 715, approved March 8, 1971. Rather the Borough, in passing this resolution, is granting a special exception, as authorized in Section 2, of said ordinance which section concludes with the following words:
"This section shall not prohibit the Borough Council from making exceptions in the cases of awnings, signs or other devices where the encroachment is temporary in nature, the minimum amount necessary to accomplish the owner's purpose, and does not inconvenience the public or interfere with free passage."
3. The Borough Council may adopt further rules and regulations, from time to time. Publication thereof in a newspaper circulating in the Borough shall immediately bind all parties subject to the terms of this Resolution.
4. No permanent signs, stands, equipment or enclosures shall be erected upon or suspended over any portion of the public sidewalk. All equipment and displays shall be taken indoors each afternoon or night upon the closing of the business or establishment involved, and the sidewalk shall be left broom clean and in proper state of repair at all times. In addition, the owner, tenant or occupant shall comply with all orders of the Chief of Police and of the Fire Marshal.
5. It is a further condition of this authorization and exception that each person availing himself thereof agrees to carry suitable liability insurance to protect him as well as the Borough against all claims of personal injury or property damage arising out of such utilization of the sidewalk for the purposes described in this resolution.
PASSED, this 13th day of May, 1974.

PNI asserts that the Ordinance of March 8, 1971 (hereinafter the Ordinance), and the Resolution of May 13, 1974 (hereinafter the Resolution), construed together, are unconstitutional to the extent that they prohibit the placement of newspaper boxes on the public sidewalks of the Borough, while permitting certain other uses of the streets and sidewalks which are not entitled to the protection of the First and Fourteenth Amendments.

Several other preliminary jurisdictional matters must be discussed...

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29 practice notes
  • News Printing Co. v. Borough of Totowa
    • United States
    • Superior Court of New Jersey
    • January 3, 1986
    ...the ordinance is unconstitutional rather than wait to defend a criminal charge. Philadelphia Newspapers Inc. v. Borough of Swarthmore, 381 F.Supp. 228 Those were the facts that were relevant in respect to the granting of the preliminary injunction. Finally, the certifications and related ph......
  • Kash Enterprises, Inc. v. City of Los Angeles
    • United States
    • United States State Supreme Court (California)
    • April 15, 1977
    ...P.2d 1307] Cajon (1975) 52 Cal.App.3d 441, 125 Cal.Rptr. 116; Philadelphia News., Inc. v. Borough C., etc., Swarthmore (E.D.Pa.1974) 381 F.Supp. 228; Gannett Co. v. City of Rochester (1972) 69 Misc.2d 619, 330 N.Y.S.2d 648.) 3 The City of Los Angeles does not challenge the broad holdings of......
  • Lauder Inc. D/B/A Houston Tribune v. City of Houston, Civil Action No. H–08–3223.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • November 4, 2010
    ...scope of our analysis.”); Philadelphia Newspapers, Inc. v. Borough Council, Mayor, Manager & Dir. Public Works Borough of Swarthmore, 381 F.Supp. 228, 244 (E.D.Pa.1974) (“[A]esthetic considerations could justify the promulgation of reasonable regulations as to the size and appearance of the......
  • Sentinel Communications Co. v. Watts, No. 90-3601
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 26, 1991
    ...Newspapers, Inc. v. New Jersey Dep't of Transp., 542 F.Supp. 173, 183 (D.N.J.1982); Philadelphia Newspapers, Inc. v. Borough Council, 381 F.Supp. 228, 241 (E.D.Pa.1974). But see Lakewood, 108 S.Ct. at 2155 (White, J., dissenting). There is therefore little question in this case that Sentine......
  • Request a trial to view additional results
29 cases
  • News Printing Co. v. Borough of Totowa
    • United States
    • Superior Court of New Jersey
    • January 3, 1986
    ...the ordinance is unconstitutional rather than wait to defend a criminal charge. Philadelphia Newspapers Inc. v. Borough of Swarthmore, 381 F.Supp. 228 Those were the facts that were relevant in respect to the granting of the preliminary injunction. Finally, the certifications and related ph......
  • Kash Enterprises, Inc. v. City of Los Angeles
    • United States
    • United States State Supreme Court (California)
    • April 15, 1977
    ...P.2d 1307] Cajon (1975) 52 Cal.App.3d 441, 125 Cal.Rptr. 116; Philadelphia News., Inc. v. Borough C., etc., Swarthmore (E.D.Pa.1974) 381 F.Supp. 228; Gannett Co. v. City of Rochester (1972) 69 Misc.2d 619, 330 N.Y.S.2d 648.) 3 The City of Los Angeles does not challenge the broad holdings of......
  • Lauder Inc. D/B/A Houston Tribune v. City of Houston, Civil Action No. H–08–3223.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • November 4, 2010
    ...scope of our analysis.”); Philadelphia Newspapers, Inc. v. Borough Council, Mayor, Manager & Dir. Public Works Borough of Swarthmore, 381 F.Supp. 228, 244 (E.D.Pa.1974) (“[A]esthetic considerations could justify the promulgation of reasonable regulations as to the size and appearance of the......
  • Sentinel Communications Co. v. Watts, No. 90-3601
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 26, 1991
    ...Newspapers, Inc. v. New Jersey Dep't of Transp., 542 F.Supp. 173, 183 (D.N.J.1982); Philadelphia Newspapers, Inc. v. Borough Council, 381 F.Supp. 228, 241 (E.D.Pa.1974). But see Lakewood, 108 S.Ct. at 2155 (White, J., dissenting). There is therefore little question in this case that Sentine......
  • Request a trial to view additional results

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