Pittsburgh Outdoor Advertising Co. v. City of Clairton

• Decision Date: 28 June 1957
• Parties: PITTSBURGH OUTDOOR ADVERTISING COMPANY v. CITY OF CLAIRTON, Appellant.
• Court: Pennsylvania Supreme Court

Page 542

133 A.2d 542

390 Pa. 1

PITTSBURGH OUTDOOR ADVERTISING COMPANY v. CITY OF CLAIRTON, Appellant.

Supreme Court of Pennsylvania.

June 28, 1957.

David W. Craig, Moorhead & Knox, Pittsburgh, Edward Zemprelli, Clairton, for appellant.

Eugene B. Strassburger, Eugene B. Strassburger, Jr., Strassburger & McKenna, Pittsburgh, for appellee.

Before JONES, C. J., and CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.

CHIDSEY, Justice.

This appeal, brought under the Act of March 5, 1925, P.L. 23, 12 P.S. § 672 questions the jurisdiction of a court of equity to entertain a bill praying that the enforcement of a zoning ordinance be restrained.

The plaintiff, Pittsburgh Outdoor Advertising Company, has 18 signboards which were erected on properties within the defendant third class city prior to the enactment of the zoning ordinance. Section 1507-2-7(a) of Zoning Ordinance 654 of the City of Clairton, enacted July 21, 1948, provides:

'Name plates, signs and signboards bearing other than the name of the person, firm or corporation operating the enterprise, (occupying the premises) a description of the general character of the enterprise, or both, shall be removed or made to conform within five (5) years of the date of the adoption of this ordinance.'

Just before the five year period had run, the City Solicitor sent the following letter to the plaintiff:

'City of Clairton

'John J. Mullen, Mayor

'Dept. of Public Affs.

'William R. Miller

'City Clerk

'July 7, 1953

'Pittsburgh Outdoor Advertising Co.

'2610 Fifth Avenue

'Pittsburgh, Pennsylvania

'Gentlemen:

'As City Solicitor for the City of Clairton and upon instructions from the Zoning Officer of the City of Clairton, I am taking this opportunity to call to your attention that under Ordinance No. 654 of the City of Clairton, commonly known as the Zoning Ordinance and as more specifically provided by Provisions 1502-1-5-3(b) and 1507-2-7(a) thereof, that it will be necessary for you to remove your billboard signs erected within the said city on or before July 21, 1953 inasmuch as said unattached signs will then become subject to removal by virtue of nonconformance as defined in the aforesaid provisions.

'Your immediate attention and cooperation in these matters will be very greatly appreciated.

'Sincerely,

'(s) Edward P. Zemprelli

'City Solicitor'

On August 17, 1954, the plaintiff company filed a bill in equity alleging that the Zoning Ordinance is unconstitutional in that its attempt to eliminate nonconforming uses was beyond the zoning powers granted to the City, and that its aplication to signboards is confiscatory and discriminatory, wherefore it prayed that an injunction be issued restraining enforcement of the Zoning Ordinance against plaintiff.

Defendant thereafter filed a motion to dismiss for lack of jurisdiction of the subject matter on the ground that this action questions the validity of the City's Zoning Ordinance, and that such actions must be pursued at law in conformity with the statutory remedy prescribed by Section 4123 et seq. of the Third Class City Code, Act of June 23, 1931, P.L. 932, as added to by the Act of June 28, 1951, P.L. 662, 53 P.S. § 12198-4123.

This motion was denied by the court below, from which order the defendant City of Clairton brings this appeal.

The plaintiff company takes the position (1) that the statutory remedy is inapplicable here because the letter of the City Solicitor does not represent 'any decision of the administrative officer' from which 'any person aggrieved' may take an appeal to the Board of Adjustment, and thence (in Allegheny County) to the Allegheny County Court; and (2) that the remedy under the statute is inadequate because the company is subject to fines of $100 per day for each day the signs remain standing in violation of the Zoning Ordinance, thus subjecting plaintiff to irreparable damage, and although Section 4124 of the Third Class City Code, 53 P.S. § 12198-4124 provides for a stay of proceedings pending an appeal to the Board of Adjustment, this provision is inadequate since '* * * it would only be this particular proceeding which would be stayed and nothing would have prevented the City authorities from instituting criminal proceedings against Appellee. * * *' and 'It is also to be noted that the Third Class City Code makes no provision for a stay of proceedings on appeal from the Board of Adjustment to the County Court. * * *'.

In this latter regard, we believe that plaintiff misconstrues the provisions of the Third Class City Code regarding a stay of proceedings pending appeal. Section 4124 of the Code provides that 'An appeal to the board shall stay all proceedings in furtherance of the action appealed from * * *.' (Emphasis supplied.) We cannot conceive of a broader provision for the protection of one appealing from a decision of an administrative officer. A stay of 'all proceedings' regarding a particular application of a zoning ordinance by an administrative officer would certainly stay any penalties instituted by the City to enforce compliance with the decision appealed from. Any other reading of this provision would render it practically meaningless. Furthermore, if plaintiff still would not feel wholly protected by this provision (and we cannot see how its complete protection can seriously be questioned), it would have the undoubted right to appeal from any 'decision of the administrative officer' regarding the institution of penalties, and thus satisfy itself doubly that it is protected by the stay provision of Section 4124.

But plaintiff contends that, even if the stay in proceedings is effective under Section 4124 from the time of appeal until decision by the Board of Adjustment, there is no provision for a stay in the proceedings from the time of the board's decision until the appeal can be heard in the Allegheny County Court.

Plaintiff is plainly mistaken in this regard. All of the Acts prescribing zoning procedures for the various municipal subdivisions make provision for a stay in proceedings in one form or another in the case of appeal from the Board of Adjustment to the appropriate court. The First ¹ and Second ² Class Township Codes and the Borough Code ³ expressly permit the grant of an order of supersedeas by the court to which an appeal is taken upon application, notice, and hearing; and the First ⁴ and Second ⁵ Class City Codes, contain express provisions permitting the court to grant a restraining order having similar effect. In the amended Third Class City Code, at the place which corresponds to the cited provisions in the other municipal codes (i. e., at a point in the chapter entitled Board of Adjustment following the description of its makeup, functioning, etc., and the allowance of appeals to the Board), 53 P.S. § 12198-4127 appears as follows:

'Any person aggrieved by any decision of the board of adjustment or any city officer affected thereby may appeal ⁶ therefrom, within thirty days, to the court of common pleas. Every such appeal shall specify the grounds thereof and the interest of the appellant. So far as practicable and consistently with the provisions of this article, the procedure for appeals from the board of adjustment shall be in conformity with the Rules of Civil Procedure of the Supreme Court regarding appeals from administrative agencies.'

The 'Rules of Civil Procedure of the Supreme Court regarding appeals from administrative agencies' evidently refers to the Rules of Civil Procedure Governing Appeals from Certain Administrative Agencies promulgated by this Court on January 11, 1946, effective date: February 4, 1946, 353 Pa. xxvi; Rule 13, 12 P.S.Appendix, 353 Pa. xxxi, of which reads:

'Supersedeas.

'At any time during the pendency of an appeal, upon application of the Appellant and upon due notice to the agency, the court, or a judge thereof, may after hearing grant an order of supersedeas upon such terms and conditions, including the filing of security, as the court or the judge may prescribe.'

Thus it may be seen, the statutory provisions for a stay in the proceedings upon appeal from the Board of Adjustment to the appropriate court are wholly adequate in the case of a Third Class City, and conforms to the protection afforded appellants in similar cases in other types of municipalities.

But plaintiff takes the position in this Court that the letter from the City Solicitor was not 'any decision of the administrative officer' as to be appealable under the statute.

Initially we must point out that plaintiff no doubt considered the letter to be enough of a 'decision' aggrieving the company to convince it that the time was ripe to institute this bill in equity. In its brief before this Court the plaintiff appellee contends that there is nothing from which to appeal 'For how is a property owner to know when a letter from a Solicitor is a ruling or merely a notice of the City's position in any matter?' The answer to plaintiff's question is that the letter must be read in the light of the surrounding circumstances. The tenor of the complaint makes it quite clear that plaintiff did read the letter and understood it to be a notification to the company to remove its signboards. Plaintiff's complaint states it as follows: '8. Defendant has notified plaintiff by lette to remove all of its signboards in conformity with said ordinance. A copy of said letter is attached hereto. * * * '. Plaintiff's understanding of the letter becomes even more apparent when read in the light of Section 1804 of the Zoning Ordinance:

'Violation; Penalty. Any person, firm, or corporation violating any of the provisions of this ordinance shall, upon conviction thereof in a court of record, be fined * * * Proceedings against violators shall be instituted by the City Solicitor upon motion of the Planning Commission or the Zoning Officer. * * *'.

While this letter was not the institution of proceedings under Section 1804 (the letter was written...