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46 SOUTH 52ND STREET CORPORATION v. MANLIN (01/18/60)

January 18, 1960

46 SOUTH 52ND STREET CORPORATION, APPELLANT,
v.
MANLIN, APPELLANT.



Appeals, Nos. 121 and 185, Jan. T., 1959, from decree of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1956, No. 6780, in case of 46 South 52nd Street Corporation et al. v. Oscar Manlin et al. Decree reversed. Equity. Before CHUDOFF, J. Adjudication filed dismissing complaint, exceptions to adjudication dismissed, and final decree entered, opinion by GRIFFITHS, J.; HAGAN, P.J., dissenting. Plaintiffs and defendant, respectively, appealed.

COUNSEL

Sheldon Tabb, with him Edward Davis, for defendant.

Jerome J. Cooper, with him Wolkin, Sarner & Cooper, for plaintiffs.

Harold E. Kohn and Arthur Littleton, with them Dolores Korman and Dilworth, Paxson, Kalish, Kohn & Dilks, for interested parties, under Rule 46.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Cohen

[ 398 Pa. Page 306]

OPINION BY MR. JUSTICE COHEN

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 twenty-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 come

[ 398 Pa. Page 307]

    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.*fn1 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

[ 398 Pa. Page 308]

    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 vestibule 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

[ 398 Pa. Page 309]

    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.*fn2 That Act established that in certain situations involving encroachments on public sidewalks, a complaining citizen must first give written notice to the municipality

[ 398 Pa. Page 310]

    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., 167 Pa. 120, 31 Atl. 476 (1895); Riley v. Pennsylvania Co., 32 Pa. Superior Ct. 579 (1907). The courts, however, did not have the equitable power to give relief to a citizen whose injury was not direct. Rhymer v. Fretz, 206 Pa. 230, 55 Atl. 959 (1903). The purpose of the Act, thus, as expressed both in its title*fn3 and in the main body of the statute,*fn4 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

[ 398 Pa. Page 311]

    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. Pittsburgh, 365 Pa. 386, 75 A.2d 649 (1950); Sterling's Appeal, 111 Pa. 35, 2 Atl. 105 (1886); Versailles Township Authority v. McKeesport, 171 Pa. Superior Ct. 377, 90 A.2d 581 (1952). As to condemnation, see William Laubach and Sons v. Easton, 347 Pa. 542, 32 A.2d 881 (1943); Breinig v. Allegheny County, 332 Pa. 474, 2 A.2d 842 (1938); 3 Tiffany, Real Property, 3rd Edition, § 924, p. 596.

The plaintiffs' contention is that since it is the owner of title, and since property taken by eminent domain passes only to the extent reasonably required for the purpose for which the power of eminent domain is exercised, Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 341, 54 A.2d 277 (1947), and

[ 398 Pa. Page 312]

    since the sovereign acquires by condemnation only those rights for which it pays, Miller v. Beaver Falls, 368 Pa. 189, 82 A.2d 34 (1951), the sidewalk may be used only for a public as distinguished from a private use. No private use may be made of the sidewalk in opposition to or over the objection of plaintiffs as owners. Their private right is superior to any other private right. It is conceded that the plaintiffs have title to the center of the street, Scranton v. Peoples Coal Co., 256 Pa. 332, 335, 100 Atl. 818 (1917), subject only to an easement of public use.

While the easement acquired by the public in country roads is an easement of passage only, this is not true in Pennsylvania with respect to the public right in the streets of a city. These are regarded as in the exclusive possession of the municipality, which may authorize the use of the sidewalk, as well as the street, for any public service, without further compensation to the abutting lot owners. William Laubach & Sons v. Easton, 347 Pa. 542, 32 A.2d 881 (1943); McDevitt v. People's Natural Gas Co., 160 Pa. 367, 28 Atl. 948 (1894). Pursuant to the city's control, the sidewalks in Philadelphia have been utilized without the consent of the abutting property owners for a wide variety of public purposes, all of which are identified with a public service.*fn5 Certainly it could not be successfully asserted by an abutting property owner that unless he is paid rent or otherwise consents to such uses of the sidewalk, he is entitled to bar them.

What we must decide then, is whether defendant's use of the sidewalk through the maintenance of a stationary newsstand constitutes an authorized public use

[ 398 Pa. Page 313]

    which takes priority over plaintiffs' private right. It is established beyond question that the sale and distribution of newspapers and other printed materials are such a public use as must be permitted on the sidewalks and highways of our nation. As stated by the Supreme Court of the United States in Hague v. C.I.O., 307 U.S. 496, 515-516, 83 L.Ed. 1423, 59 S.Ct. 954 (1939): "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied."

In the court below there was no dispute among the judges or counsel that the sale and distribution of newspapers on the sidewalks is protected by the constitutional guarantee of freedom of the press. As President Judge HAGAN, dissenting, stated in part, in answer to the question whether such sales constitute a lawful public use of the highways: "The answer to this question is clearly in the affirmative (a) because of the constitutional guarantees of freedom of speech and freedom of the press, which are among the fundamental privileges protected by the Fourteenth Amendment from invasion by State Courts: Lovell v. City of Griffin, 303 U.S. 444; and Marsh v. Alabama, 326 U.S. 501; (b) because of the settled State and Federal law that the principle of free press embraces distribution

[ 398 Pa. Page 314]

    and sale as well as publication: Winters v. City of New York, 333 U.S. 507; and Commonwealth v. Reid, 144 Pa. Superior Ct. 569; ..."

Distribution as well as sale is protected even if it is upon sidewalks owned by a private corporation, Marsh v. Alabama, 326 U.S. 501, 90 L.Ed. 265, 66 S.Ct. 276 (1946), or upon sidewalks owned by the municipality. Jamison v. Texas, 318 U.S. 413, 87 L.Ed. 869, 63 S.Ct. 669 (1943). The Supreme Court of the United States commented on this very point in Marsh v. Alabama, supra, in rejecting the contention that the property right of the corporation owning a company town justified prohibitions upon the distribution of literature. The Court said (326 U.S. at 506): "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. ..."

This, however, while it may affect our interpretive approach, does not control the central issue in the case. We begin with the basic proposition that a purely private use of the public highway with no reasonable benefit to the public generally not only may be prevented by the municipality, but is not even permissible. Benner v. Junker, 190 Pa. 423, 429, 43 Atl. 72 (1899); Seibert v. Sebring, 55 Pa. Superior Ct. 475 (1913). And while it is true that a free press is essential to the maintenance of liberty and it would be completely beyond the power of the state itself, let alone a municipality thereof, to prevent distribution on a public street, it does not necessarily follow that a governmental body may not regulate or even prevent the use of stationary newsstands for that purpose. Newsstands are neither essential nor even necessary for the distribution of newspapers. We can readily perceive that with large editions of the daily press filled with page

[ 398 Pa. Page 315]

    after page of advertisement that the newsstand is a convenience both to the distributor and to the purchaser - but it is equally clear that newsstands are not so necessary as to cloak them with the constitutional protection accorded a free press.

The decision in this case, thus, boils down to a very narrow issue. Has the use of stationary newsstands been sanctioned by the City of Philadelphia as being necessary for the dissemination of news and information to our citizenry? Although the custom of having newsstands in Philadelphia has existed for approximately 100 years, this custom is not enough to warrant such continuance. Whatever justification there is must be found in the rights of the public under sanction of law. The Superior Court correctly held in Hindin et al. v. Samuel, Mayor, et al., 158 Pa. Superior Ct. 539, 542, 45 A.2d 370 (1946): "No person, corporation or individual has the right to make a special or exceptional use of the public highway not common to all citizens except by grant from the sovereign power. Owl Protective Co. v. Public Service Commission, 123 Pa. Superior Ct. 382, 187 A. 229; Philadelphia Co. v. Freeport Borough, 167 Pa. 279, 31 A. 571. As this Court stated in Philadelphia v. Teller, 50 Pa. Superior Ct. 260, at page 265: 'The highways belong to the commonwealth in trust for the great body of the people, and he who claims a peculiar privilege to invade them must establish his right under some statute, or valid municipal regulation, ordained in pursuance of statutory authority. Livingston v. Wolf, 136 Pa. 519; Commonwealth v. Harris, 15 Phila. 10; Kopf v. Utter, 101 Pa. 27; Commonwealth v. Kembel, 30 Pa. Superior Ct. 199.'"

Subject to the paramount authority of the Commonwealth, the regulation and control of the streets belong to the city government. Philadelphia Electric Co. v. Philadelphia, 301 Pa. 291, 303, 152 Atl. 23 (1930). The

[ 398 Pa. Page 316]

Commonwealth from an early date delegated to the City of Philadelphia broad power to permit and control reasonable encroachments upon the public sidewalks. The Act of April 16, 1838, P.L. 626, § 3, 53 P.S. § 16436, provides: "It shall and may be lawful for the select and common councils of the city of Philadelphia, from time to time, by ordinance, to make and establish such and so many rules and regulations as to them may seem expedient, for the better regulation of ... [any] ... device or thing ... occupying the sidewalks or other portion of any of the streets, lanes and alleys; ...." (Emphasis supplied).

Referring to the cited Act in Walnut & Quince Street Corp. v. Mills, 303 Pa. 25, 31-32, 154 Atl. 29, 31 (1931), appeal dismissed 284 U.S. 573, 76 L.Ed. 498, 52 S.Ct. 16 (1931), this Court stated: "It is a settled principle that the legislature has the power of control over encroachments into or over public highways, from house line to house line, and this control may be delegated to municipalities in the State: Reimer's App., 100 Pa. 182, 185; Lenon v. Porter, 65 Pa. Superior Ct. 94, 98. As we stated in Reimer's App., supra, the councils of Philadelphia derive power to make rules and regulations in this regard from the Act of April 16, 1838, section 3, P.L. 626."

The Philadelphia ordinances prohibiting or restricting sidewalk sales or the use of stands on the sidewalks have long contained an express exemption as to the sale of newspapers, books and magazines. E.g., Ordinances of 1931, 1939, 1943, 1947, 1950, 1951 and 1954.

A like exemption has been carried into Section 9-205 of the Code of General Ordinances of the City of Philadelphia, effective February 29, 1956, relating to sidewalk sales. Subdivision (1) defines "Stands" as used therein, to mean any stand, showcase or other fixture used for the purpose of displaying, exhibiting or offering for sale any goods, wares or merchandise upon

[ 398 Pa. Page 317]

    the sidewalk, but subdivision (2)(b) expressly exempts from the provisions of the section: "The display, offering for sale and sale of books, magazines and newspapers, and the placing and maintenance of stands for such articles." And subdivision (3), while prohibiting the display or sale of any goods, wares or merchandise, or the placing or allowing of any stands to remain on the sidewalks of the streets designated therein, incorporates by reference the express exemption of the sale of newspapers, books and magazines and the placing and maintenance of stands therefor, as provided in subdivision (2)(b).

The question we now face directly is whether the exemption contained in these ordinances constitutes the requisite municipal sanction and a sufficient surrender of the public easement for a public use. Such authority must be by legislative grant in clear words or by unavoidable implication. Riley v. Pennsylvania Co., supra. We hold, despite seemingly contrary language in Tua v. Brentwood Motor Coach Co., 371 Pa. 570, 575-576, 92 A.2d 209, 211-212 (1952),*fn6 that it does not.

[ 398 Pa. Page 318]

The Tua case was a negligence action by a pedestrian for injuries sustained when a heavy, metal newsstand on the sidewalk was struck by a passing bus and thrown against the plaintiff. In holding that a judgment n.o.v. should have been entered in favor of the Pittsburgh Newspaper Publishers Association, the owner of the newsstand, Justice STEARNE used the quoted language that defendants urge upon us as controlling. The language used, however, must be examined in its proper context. What the Court said in Tua was that the existence of such a newsstand did not violate any city ordinance and that its presence on the street corner was not contrary to law. The Court held that it was not negligence to put newsstands on city streets without their being fastened. The majority in Tua, however, did not decide nor did they have occasion to decide whether such a newsstand may be maintained in conflict with the rights of the fee-owner of the sidewalk. Reading the Court's language in its proper light, therefore, we find no authority for the proposition that there is legislative approval for stationary newsstands contained in the mere exemption for such newsstands from the penal sanctions of a regulatory ordinance.

It has also been argued that the re-enactment of this exemption several times in the past 28 years and the alleged reliance placed upon the contrary holding in Wilson v. McGill, 42 Pa.D. & C. 74 (1941) have indicated a legislative intent not to legislate in this area. More specifically, it is urged that the City Council of Philadelphia has impliedly indicated that newsstands are not in need of specific regulation or prohibition.

[ 398 Pa. Page 319]

That at least some of the newsstands in Philadelphia are in need of regulation is indicated by the findings of both the chancellor and the court en banc. In order for the City of Philadelphia to permit encroachments upon private property, however, even though they may be for a public purpose, we find it necessary that such authorization and sanction be express. As we have stated, plaintiffs, as fee-owner of the sidewalk, are entitled to possession free and clear of any encroachments. Plaintiffs' right, of course, is subject to the public easement and the right of the municipality to relinquish their easement for a public as distinguished from a private use. To so relinquish the public easement, however, it is only proper that we require the relinquishment to be done expressly and not by inference. Such authorization was clearly granted by ordinance in Pickup v. Philadelphia & Reading Ry. Co., 29 Pa. Superior Ct. 631 (1905). Such authorization was not present in Thomas v. Inter-County Street Ry., supra.

The city may be perfectly justified in concluding that a newsstand is the practical, sane solution to what otherwise would be an overwhelming problem in a heavily populated democratic community. Whether and how such newsstands shall be permitted is for the city and not the courts to decide.

In Chicago, where for a considerable length of time the sale and distribution of newspapers occasioned violence, a licensing and regulation procedure was adopted controlling the maintenance of newsstands on the public ...


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