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June 27, 1955


Appeals, Nos. 201, 202 and 200, Jan. T., 1955, from decree of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1954, Nos. 6327, 6420 and 6518, in cases of John Warren and Property Owners Association of Philadelphia, Inc. and Queen Lane Village, Inc., and Queen Lane Manor, Inc., intervenors, v. City of Philadelphia, George Braeunig, Jr. v. City of Philadelphia, and Frank Giacobbo et al. v. City of Philadelphia. Decree reversed.


Abraham L. Freedman, City Solicitor, with him Jacob J. Siegal and I. Jerome Stern, Assistant City Solicitors, Jerome J. Shestack, First Deputy City Solicitor, for appellant.

D. Arthur Magaziner, Philip Sterling, and Sterling, Magaziner, Stern & Levy, for appellees.

Joseph A. Keough, for appellee.

Morris B. Levitt, for appellees.

Simon Lenson, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 382 Pa. Page 381]


These three cases were argued together and will be disposed of in one opinion.

The several plaintiffs filed bills in equity against the City of Philadelphia, seeking a permanent injunction declaring defendant's rent control ordinance of 1955 void,*fn1 and restraining the enforcement thereof.

[ 382 Pa. Page 382]

The city filed an answer to the complaint in equity and set up new matter. On motion for judgment on the pleadings the court below declared the Philadelphia Rent Control Ordinance unconstitutional and void. The court held that it was in conflict with various acts of

[ 382 Pa. Page 383]

    assembly of the commonwealth, and that the city had no police power to enact rent controls. The city appealed in each case.

In determining this question we point out that the facts pleaded by the city by way of new matter set forth that there existed in Philadelphia an emergency housing shortage, affecting the public health, safety and welfare. These facts were well pleaded and on the plaintiffs' motion for judgment they must be taken to be true.


"'Under its police power a state or its municipalities may enact statutes and ordinances for the welfare and health of its citizens. Such a statute or ordinance, however, must be reasonable and not arbitrary; must not invade the fundamental liberties of its citizens; ...'": Otto Milk Company v. Rose, 375 Pa. 18, 25, 99 A.2d 467. This power has been juridically extended to many fields by social and economic welfare: Gambone v. Commonwealth, 375 Pa. 547, 551, 101 A.2d 634. That rent and eviction controls are not unreasonable or arbitrary, and are valid exercises of this power, is established: Block v. Hirsh, 256 U.S. 135; Marcus Brown Holding Company v. Feldman, 256 U.S. 170;

[ 382 Pa. Page 384]

    of restaurants, signs, construction and height of buildings, fair employment practices, and other like matters. Kline v. Harrisburg, 362 Pa. 438, 68 A.2d 182, is not controlling. That case involved The Third Class City Law of 1931, P.L. 932, 53 PS § 12198-101 et seq., which granted general police powers and also specifically granted zoning powers to third class cities. This Court held that the authority of a municipal body must be exercised strictly in the manner provided in the statute; and that the city could impose zoning requirements solely in accordance with the specific provisions of the Act. Cf. Section 63 of the Statutory Construction Act of 1937, P.L. 1019, 46 PS § 563.

Contrary to appellees' contention, the pleadings do not establish an improper delegation of judicial power to the Rent Commission. It clearly acts in an administrative capacity only, as do zoning boards, and the exercise of these powers is not in violation of Article V, Section 1, of the Constitution.


Appellees further contend that the ordinance is invalid because it conflicts with The Landlord and Tenant Act of 1951, P.L. 69, 68 PS § 250.101. This Act sets up the procedure whereby a landlord may repossess premises if he has a right to evict the tenant. The substantive law as to when he has a right to evict is not touched upon. The Landlord and Tenant Act is not an exercise of police powers by the state, and hence is not in derogation of the police power of the city.

Indeed, even where both a state statute and a municipal ordinance have legislated as to the same subjects, if they be not in conflict both have been upheld. In Brazier v. Philadelphia, 215 Pa. 297, 64 A. 508, a Philadelphia ordinance, prohibiting operation of vehicles in the city without procuring a city license tag, was upheld despite state regulation applicable to the

[ 382 Pa. Page 386]

    entire commonwealth. We upheld the right of the City of Pittsburgh to regulate restaurants within its limits even though the state also regulated in regard thereto throughout the commonwealth: Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616. See also Puntureri v. Pittsburgh, 170 Pa. Superior Ct. 159, 84 A.2d 516, where the Superior Court sustained the right of the city to ordain the licensing of liquor establishments and therein to set more stringent requirements than required by the Liquor Control Act of the commonwealth. The theory behind these cases is that peculiar local conditions were such as to permit such regulation.

Unless the statute and the ordinance in question are in conflict because each seeks to impose regulation under the same power, i.e. police power, and in like manner and extent, the statute does not invalidate the ordinance merely because both deal with the same subject matter.

As hereinbefore set forth, the Home Rule Act gave the city the power to legislate "to the full extent that the General Assembly may legislate in reference" to these matters. This grant of power, therefore, included the exercise of police power to meet the emergency arising from the housing situation, - that is, to ordain controls upon rents and evictions. These vitally affect that health and welfare of the citizens and thus are proper subjects for the exercise of the power.

We do not here attempt to pass upon the merits of the controversy, but specifically hold that for the reasons stated the decree was in error.


Decree reversed with a procedendo; costs to abide the event.

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