*1 Pittsburgh Advertising Company Outdoor Appellant.
Clairton, *2 J., Bell.,
Before C. Jones, JJ. Jones Arnold, Cohen, Musmanno, Chidsey, Edward Zemprelli, with him Craig, David W. for appellant. & Moorhead Knox, him B. Strass- Eugene with B. Strassburger, Eugene appellee. & McKenna, and Strassburger burger, Jr., Opinion 1957: June 28, Justice Chidsey, Mr. March 5, Act of under brought This appeal, the jurisdiction questions 12 PS §672, P. L. 23; that the of a court of a bill praying entertain equity be restrained. enforcement of a Ordinance Zoning Com- Advertising Outdoor plaintiff, Pittsburgh on prop- has 18 erected pany, -which were signboards prior erties within the third class city defendant Section 1507- enactment of Ordinance. Zoning 2-7(a) Ordinance 654 of Clair- enacted “Name ton, provides: plates, July 21, 1948, name of than the signs signboards bearing other firm enter- person, corporation operating prise (occupying description premises), character of shall be general the enterprise, both, removed or made to conform within five (5) years the date of the of this ordinance.” adoption
Just period before the five had run, year *3 Solicitor sent the the plaintiff: letter to following
“City Clairton John J. Mullen, Mayor Dept, of Public Affs.
William Miller E. Clerk
City July 7, Outdoor Pittsburgh Co. Advertising 2610 Fifth Avenue
Pittsburgh, Pennsylvania
Gentlemen:
As Solicitor for the City City upon Clairton and instructions from the Officer of Zoning City I am this Clairton, taking to call to opportunity your attention that under Ordinance No. 654 of the City known as the Clairton, commonly Ordinance Zoning and as more provided Provisions specifically 1502- by that it 1-5-3(b) 1507-2-7(a) will be neces- thereof, for to remove sary billboard you your signs erected the said on or city within before 1953 inas- July 21, much as said unattached then signs will become sub- as defined of nonconformance to removal virtue
ject by provisions. in the aforesaid these cooperation Your immediate attention will be greatly appreciated. matters very
Sincerely, Zemprelli Edward P. (s) Solicitor” City EPZ/hs plaintiff filed a company On August 17, that Ordinance is un- alleging Zoning bill in equity its to eliminate attempt that noncon- constitutional zoning powers granted uses was beyond forming its is con- application signboards and that City, it wherefore discriminatory, prayed fiscatory issued enforcement of the injunction restraining plaintiff. Ordinance against filed a motion to dismiss Defendant thereafter matter on the subject gi-ound lack of jurisdiction Zon- questions validity that this action City’s such actions pursued and that must be ing Ordinance, with the statutory remedy pre- at in conformity law seq. 4123 et of The Third Class Section scribed by P. L. as added to Act of June 23, 1931, Code, P. L. 53 PS Act of June §12198-4123. court denied below, This motion was this brings the defendant Clairton which order appeal. takes the position (1)
The plaintiff company *4 is here inapplicable because the remedy the statutory does not de- represent Solicitor City “any letter from administrative officer” which “any cision of the take an to the Board appeal may person aggrieved” to and thence (in Allegheny County) Adjustment, and that Court; (2) County the Allegheny is because inadequate company statute under for each per day day lines of to subject is $100 in violation of Ordi- Zoning standing remain signs damage, plaintiff irreparable subjecting thus nance, City although Third Class of The Section provides proceedings pending stay Code for a appeal provision Adjustment, is to the Board of this particular inadequate only this since “. . . it would be proceeding nothing stayed would be would which instituting prevented City have authorities from proceedings against Appellee. .” “It criminal . . City is also to be noted that the Third Class Code provision appeal stay proceedings makes no for a on Adjustment County from the Board of to the Court...”. regard, plaintiff In this mis- latter we believe that provisions of The Third construes the Class Code regarding appeal. stay proceedings pending Sec- provides appeal tion 4124 of the “An Code stay proceedings shall all the board in furtherance of appealed (Emphasis supplied). the action . . from .” provision We cannot conceive of a broader for the protection appealing of one from a decision of an ad- stay proceedings” ministrative officer. A of “all re- garding particular application of a Ordinance by certainly stay any an administrative officer would penalties by compliance instituted to enforce appealed Any reading the decision with from. other provision practically meaning- this would render it plaintiff less. if still Furthermore, would not feel wholly protected provision by (and this we cannot see complete protection seriously ques- its how can tioned), right appeal it have the would undoubted “decision of the administrative officer” re- garding penalties, satisfy institution of and thus protected doubly provision stay itself it of Section 4124. plaintiff pro- stay
But contends even if the that, ceedings is effective under Section 4124 from the time Adjustment, until decision the Board of
6 proceedings provision stay in there is no for appeal can be decision until time of the hoard’s Allegheny County Court. in the heard regard. plainly All in this mistaken Plaintiff is zoning procedures prescribing for the vari the Acts stay provision municipal make ous subdivisions proceedings in the case form or another one appro Adjustment appeal to the from the Board of Township priate Class court. First1 and Second2 permit expressly Borough Act3 General Codes and The supersedeas by grant the court of an order of upon application, appeal notice, taken, which hearing; Codes, the First4 and Second5 Class express provisions permitting grant the court to contain restraining having order similar effect. In the place amended Third Class at the which Code, corresponds provisions in to the cited the other munic ipal (i.e., point chapter at a entitled codes Adjustment description following Board of of its ap up, functioning, make and the allowance etc., peals appears Board), to the Section 12198-4127 as person “Any aggrieved by any decision of follows: adjustment any city the board of officer affected may appeal thirty days, thereby within therefrom, pleas.6 appeal Every such the court of common shall grounds specify the thereof and the interest of the appellant. practicable consistently So far as with
1 amended, 24, 1931, XXXI, §3107, Act P. L. art. as of June 53 PS §19092-3107. 2 XX, §2007, amended, May 1933, P. L. art. as 53 Act of §19093-2007. PS 3 amended, XXXIII, §3307, May 4, 1927, L. art. as P. Act §15211.7. 53 PS 4 1551, §8, May 6, 1929, §3829. 53 PS P. U. Act of 69, §7, 98, No. §9189. P. L. PS of March Act amended, May 5, 1911, P. U. as 17 PS the Act of Under County Allegheny §626, Court. is to the *6 appeals for procedure the of this provisions article, the in conformity shall be board of adjustment from the Court Supreme the of Procedure of the Rules Civil with agencies.” from administrative appeals regarding Supreme Procedure The “Rules of Civil agencies” administrative appeals from regarding Court Procedure refers to the Rules of Civil Gov- evidently Agencies Administrative Appeals Certain erning effec- on January 11, 1946, this Court promulgated by Pa. Rule xxvi; date: February 4, tive At “Supersedeas. of which reads: xxxi, upon applica- time the of an during pendency appeal, the of due notice to Appellant upon tion the after hearing the or a judge thereof, may agency, court, such terms and supersedeas upon an order grant as the court the including filing security, conditions, or the judge may prescribe.”
Thus it be the provisions may seen, in the from the Board proceedings upon appeal stay to the court are Adjustment appropriate wholly in the case of a Third and con- adequate Class City, forms to the afforded in similar protection appellants in cases other types municipalities.
But takes plaintiff position this Court that the letter from the Solicitor was not de- “any cision of administrative officer” as to be appealable under statute. must
Initially point plaintiff we out that no doubt to considered the letter of a enough “decision” ag- company convince it that the time grieving institute this ripe was bill In its brief equity. this contends plaintiff-appellee before Court is from which to “For nothing there how is a to know owner when letter from a Solicitor property a notice of the is a ruling merely City’s position matter?” The answer to plaintiff’s question in any light in the must be read the letter com- surrounding tenor of circumstances. plaintiff quite did read plaint clear that makes it notification be a it to letter and understood signboards. company Plaintiff’s its to remove complaint has noti- Defendant it as follows: “8. states signboards plaintiff by its letter to remove all of fied copy conformity said A said ordinance. with understand- . . .”. Plaintiff’s hereto. letter is attached apparent read ing when becomeseven more of the letter light Ordinance: 1804 of the of Section in the corporation Any person, Penalty. firm, “Violation; *7 provisions violating any shall, this ordinance the fined upon court of be record, thereof conviction . . n . against Proceedings instituted shall be violators Planning upon City by of the motion the Solicitor Zoning . . .”. the Officer. or Commission pro- the institution this letter was not While (the ceedings letter was written under Section prohibi- sign prior to the date the billboard two weeks question effect), go but there can be no into to tion was thereby plainly company to remove notified was that clearly signboards, falls within such notification its encompassed by appealable classification broad the. “any statutory decision”. term accept may here if were to added that we- It itself of plaintiff’s that it could not avail contention - “nothing it had from -because practical reducing appeal”, effect of thus to which nullity, we would have letter to Solicitor’s company similarly since the has not been that hold to Zoning application it, Ordinance of the to an harmed standing bring equity. a suit no have it would Knup Philadelphia, stated Justice As Chief Stern equally A. 2d “. . . it is 399: jurisdiction- only take that court well -established will challenged in a case in which a ordinance, statute, applied litigant; actually rule of court has been ato academically it does not undertake to decide the un- constitutionality legis- alleged invalidity or other brought operation impinge lation until it is into so as to upon rights person persons. of some . . argument suggested
At the oral it was that the Solicitor is not “the administrative officer” from whose appeal “decision” an could be taken. Aside from the clear intent of Section 4123 to an allow provisions implementing administrative officer aof it is a sufficient answer to note ordinance, acting the letter states that the Solicitor was “upon Zoning instructions from the Officer” and cer- tainly body par- relating agency, whole law ticularly applies attorney- City as it Solicitor, — compels us to construe the act of the Solicitor here to Zoning be the act of the and there cannot be Officer, question slightest applicability of the section as to Officers. foregoing arguments largely are, however, impelled
technical. We are to reach the conclusion the court below erred a much more basic consideration. The basic tenor our decisions on the question *8 equity, of an whether action in or other question validity will lie to action, raise a constitutionality zoning particular of a or a ordinance, application emphasize has been thereof, to that the statutory prescribed remedy by Legislature the is the pursued by “aggrieved” exclusive by to be one zoning equity raising á and a bill in ordinance, the question permitted same will not be to lie.
In Jacobs v. 381 Pa. Fetzer, 112 A. 2d 356, property where the chancellor sustained a owner’s -bill equity entering declaring zoning in a decree a ordinance applied-to unconstitutional and prop- invalid as it the de- the restraining and the by plaintiff, owned erty against the ordinance from enforcing fendant borough court below this reversed Court plaintiff’s land, was that holding equity dismissed the complaint, (then Justice in the matter. Chief without at page 265: unequivocally, stated Mr. Justice) Jones procedure statutorily “. . . It is plain enough pro- substantive of validity prescribed testing method of its or the of a ordinance zoning visions to the board application is through administration the decision of a bor- one by adjustment by aggrieved there- in thereof respect and, administrative officer ough if the pleas to the court of common after, by ad- likewise adjustment of the board decision verse.”. cases on discussion of excellent citation and
The Philadel v. Knup Justice Stern point this Chief by it here to com again makes supra, unnecessary phia, the decisions to this effect. review prehensively this line Plaintiff has endeavored to distinguish involved other on the ground they authorities of appealable matters or different zoning types sorts dis- at attempt officers. zoning rulings by up variety points ingenuity tinction only upset persons endeavoring adopted by the procedures particular applications thereof, ordinances, zoning which our courts appellate the steadfastness with merits case to be have refused to allow the at procedure other than via the law decided prescribed Legislature.
In 372 Pa. 2d bill Oteri Appeal, was brought by adjoining neighbor in equity order of a Board of Adjustment granting enjoin variance; Wyszynski a building Philadelphia, 2d 89 A. bill was equity brought the revocation enjoin owner ;property by.
11 permit of Engineering, Surveys & of a Bureau authorizing 383 Pa. in Barth v. variance; Gorson, a brought neighbors in an A. action 119 2d 309, 611, enjoin city equity down enforcement a ordinance to property; grading in Jacobs v. Fetzer, the defendant’s equity property brought to supra, an in a owner action zoning require, borough ordi amend its council to enjoin property, down-grade plaintiff’s or to to nance in amended; as not ordinance enforcement Philadelphia, a A. 2d 667, v. 375 Pa. 101 596, Shender property equity brought by to set owner a bill in was Wojnar zoning amendatory in et ordinance; an aside Manufacturing Company, Inc. Towne ux. v. Yale and brought neighbor A. 2d 595, 321, et 348 Pa. 36 a al., zoning alleging equity ordinance a bill in property as industrial the defendant’s which classified Knup Philadelphia, supra, in v. was unconstitutional; seeking equity neighbors brought in to restrain a bill rezoning building permit a the issuance a under Borough, Vogt Vue 170 Pa. v. Port ordinance; Superior property A. 2d owner 688, Ct. 85 526, compel equity seeking, brought to effect, a bill in Taylor building permit; of a revoked the reissuance Pa. 154 A. and in Lewis v. 799, v. 469, Moore, 2d in man 385 Pa. actions Emmott, 727, attempted compel issuance of build damus were permits; ing v. in Commonwealth DeBaldo, appellants attempted Superior 2d 82 A. Ct. provision zoning question validity of a ordi summary an and in convictions; on nance Corporation Upper St. Clair Shannon Coal Castle attempt Township, A. 2d was question validity ordinance made every petition declaratory judgment. In for a via a it held these cases method, one of was pursued, procedures only way was and not *10 12 properly validity constitutionality raise the particular application zoning
aof of a ordinance. Duquesne urges Company Light Plaintiff that the Upper Township v. St. Clair Pa. 323, 377 decision, supports position equitable A. 105 2d his 287, jurisdiction irreparable will not be denied harm where can be shown. The basic issue in that case was whether township could adroit use of its ordinance (and holding apply equally would well to other ordinances) hamper power local the construction of a Utility line which the Public found Commission had along necessary, right-of-way ap- which had been proved page by it. At 336 we stated: . “. . We believe Assembly that the General never intended to bestow power upon townships headlong first class which inis power already given Utility conflict with the Public Assembly Commission. We believe that the General gave any political through never one subdivisions proposed pass power which line will to deter- public locality mine whether the in another shall be energy, with electric served or the means which they presents . shall be served. . .”. The case bar at no similar considerations. refusing
The learned court below erred defend- complaint ant’s dismiss motion to the bill of for lack subject matter. appellee’s Order reversed and bill dismissed at the costs. by Mr. Justice
Dissenting Opinion Bell: repeatedly nonconforming We have held that a expanded is to be use entitled extended or where expansion though extension even <m reasonable,
13 prohibits E. use that district: C. ordinance Adjustment, 389 v. Inc. Board Schneider, Scherzberg, Pa. 366 536; A. Firth 133 2d Realty Corp., Humphreys v. Stuart 443; 77 A. 2d Appeal, 384 Pa. A. Peirce 407; 364 Pa. 73 2d Appeal, Pa. 209, Blanarik A. 2d 506; A. 58; 2d Gil Permit, fillan's nonconforming 136. This ordinance which invalidates decisions on flies the teeth all our this uses, *11 point. may zoning is no doubt that commissioners
There regulate legitimate in the exercise billboards police power, provided regulation is reasonable i.e. the necessary non-discriminatory clearly the for and and is people safety the district health or or morals of the question.* takes in this ordinance which However, justi private possibly property, destroys and cannot principle necessary clearly for is fied under the it consequently safety is it health and morals, or or undoubtedly unconstitutional. aggrieved (or is lessor’s or
What then an owner’s lessee’s) property rights remedy, property when his and by are threatened Solicitor? with destruction permit asking is erect or billboard, He not for a a invoking exception; for a or he is not for variance, right procedure prescribed by Zoning Act in all of which events he could of course ordinance, constitutionality test, inter the ordinance. alia, repeat, by I a He Solicitor with threatened, property. his destruction of these Under circumstances remedy recognized his obvious centuries—is in- — Equity. (1) junctive Equity in relief lies because irreparable plaintiff damage is threatened with ¡a.— Pa. [*] Landau Advertising A. 2d Co., Inc. v. and cases Board therein cited. Adjustment, positive property destruction of his for which there adequate remedy (2) is no at it will and because law; prevent multiplicity (3) and because suits; procedure prescribed appli- by zoning has no laws permit in cation this case since there is refusal no exception, or of a variance or an and from a no Order zoning adjustment zoning officer or board of appeal. which to Knup Philadelphia,
Chief Justice Stern Chidsey 126 A. 2d Justice majority opinion analyzed in this case and re have many pertaining viewed decisions of this Court procedure zoning matters. We agree general with their statement of the rule, viz., prescribed statutory remedy Legislature that the permit validity to test the aof or of a variance or an exception, application constitutionality and the only by proceedings can be raised ordinance, permit (zoning) before a officer and thereafter Adjustment to the Board of and then to the Court of Common Pleas. rem However, prescribed edy clearly clearly does not cover and has *12 application no to the facts in this case. procedural statutory possibly
Even if the rule could apply to the instant the case would fall case, within recognized exceptions the well instead of within the general Examples exceptions may rule. of these be Pennsylvania found in State Chamber Commerce of Torquato, Kelly v. 386 Pa. 125 A. 2d 306, v. 755; Philadelphia,, Duquesne 382 Pa. 115 A. 2d 459, 238; Light Upper Township, v.Co. St. Clair 377 Pa. 323, A. 105 2d Everett v. 287; 380 Pa. Harron, 110 A. 123, 2d [and 383 cases cited therein]. Pennsylvania
In State Chamber Commerce v. Torquato, supra, (pages 386 the Court said Pa., 328, ): 330 329,
15
jurisdiction
Equity has no
“Defendants contend that
jurisdiction
(a)
that the
for the two-fold reason
Equity may'
there is
where
not be
Court
invoked
adequate
(b)
remedy
it is an established
at
and
law,
pro
principle
remedy
general
is
that where
law
be resorted
or
it must
vided
statute
otherwise
Philadelphia
pursued: Collegeville
Suburban
v.
Company,
A. 2d
Barth
722;
Pa.
105
Water
377
636,
are
2d
These
Pa.
119 A.
309.
v.
383
611,
Gorson,
principles.
recognized
undoubtedly
However,
well
equally
fact that
it is
well
defendants overlook
jurisdiction
Equity has
that a Court of
established
justice
relief if the
will afford
and in furtherance
equita
adequate,
legal
or if
is not
irreparable
prevent
necessary
:
harm
relief is
ble
Upper St.
Township,
Company
Duquesne Light
v.
Clair
Goldvarg,
al. v.
105 A. 2d
Wood et
287;
“Equity in- has likewise appropriate remedy (a) property rights, junction personal multiplicity (b) rights of suits 'where a question prevented may or where a fundamental right legal where the interests of involved’, equitable justice require relief: Everett Harron, supra; City National Bank v. McCalmont, Oil Pa., Telephone Bell Co. v. 497; Pa. 306, 311, *13 21 A. 2d Poinsard Poin- 912; 343 Pa. 109, Driscoll, Superior Lehigh 178 308; 117 Pa. Ct. 313, sard, 16
Valley Superior R.R. v. Ct. Graham, 451.” supra,
In Everett v. the Court Harron, Pa., (citing many cases), Equity sustained granted injunction mandatory notwithstanding (1) a excluding the fact that the act of the defendant in negroes swimming pro- pool, specifically was by §654 hibited of The Penal Code of June 24, (2) P.L. further fact that the said Act prescribed penalties (3) criminal for its violation and plaintiffs right pro- the further fact that the had a against ceed defendants in a civil action recover damages. injunction granted (to protect per- was rights placed upon sonal which were the same basis rights) (a) prevent as property because it would multiplicity (b) of suits and because the Court con- sidered that all the combined remedies aforesaid were adequate. not Duquesne Light Upper
In Pa., v.Co. St. Clair, supra, (speaking through the Court Justice Chidsey) (page 339-340) said :
“Passing to the latter
[the
contention,
Court of
Equity
jurisdiction] appellants
has no
claim that the
under
adopted
statute
which its ordinance was
provides
remedy by
rights
the exclusive
which the
Duquesne might
adjudicated.
general
As a
rule
no one is entitled to relief
equity
in a court of
injury
threatened
until available remedies at law are
appellate
and our
exhausted,
courts have held that
under Section 13 of the Act of March 21,
P.L.
provides
46 PS
which
§156,
that ‘In all cases where
remedy
provided,
by ...
act or acts of as-
sembly . . . the directions of the said acts shall be
strictly pursued,
provided
. .
.’,
must be
employed:
e.g.
Ridley Township
see
Lukens v.
Adjustment,
Board of
A. 2d 765;
*14
Commonwealth v.
169 Pa. Superior
Ct.
DeBaldo,
For the reasons hereinabove set I would sus- forth, tain the order of the lower Court which dismissed preliminary objections plaintiff’s bill of complaint.
Stellwagon, Appellant, Pyle.