Appeal from order of Court of Common Pleas No. 10 of Philadelphia County, Dec. T., 1965, No. 2769, in case of H. A. Steen Industries, Inc., formerly Poster Advertising Company, Inc., assignee of Herman A. Steen, et al. v. Gordon Cavanaugh, Commissioner of Licenses and Inspections.
Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Nicholas D'Alessandro and Frank J. Pfizenmayer, Assistant City Solicitors, and Edward G. Bauer, Jr., City Solicitor, for appellant.
Edward R. Becker, with him Becker & Becker, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Musmanno and Mr. Justice Roberts dissent. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
This is an action of mandamus. Plaintiff asks that the Philadelphia Commissioner of Licenses and Inspections (hereinafter Commissioner) be ordered to issue two sign permits which the Philadelphia Board of Licenses and Inspections Review (hereinafter Board) has ordered the Department of Licenses and Inspections (hereinafter Department) to issue. The Commissioner refuses to issue the permits on the basis of an opinion by the City Solicitor that the Board's decision is contrary to law. The court below ordered the Commissioner to issue the permits and this is his appeal from that order.
The permits sought are for two advertising signs located 125 feet from the south side of Roosevelt Boulevard in a district zoned industrial. Under the Philadelphia Zoning Ordinance, advertising signs are a permissible use in an industrial district. Section 14-2003 of The Philadelphia Code, however, provides: "(2) No person shall erect or maintain any sign . . . within 200 feet of any boundary line of Roosevelt Boulevard . . . which is visible from any point within the boundaries of such areas unless he has first obtained a permit to do so from the Department of Licenses and Inspections. (3) No permit to erect or maintain any sign in the above area shall be granted unless the sign for which such permit is sought: (a) complies in every respect with all other applicable requirements of this Code and with the regulations of the Fairmount Park Commission; (b) has been approved by the Art Commission."
Plaintiff erected the two signs in August of 1960 after obtaining zoning and use permits from the Department, but without obtaining approval either of the Art Commission or of the Fairmount Park Commission. When this was discovered, plaintiff was requested to seek the necessary approvals. Plaintiff then sought approval of the Art Commission which determined that the signs are aesthetically unacceptable and disapproved them. Thereupon plaintiff instituted a complaint in equity, requesting the court to restrain the city from interfering with the signs and to order it to issue the sign permits. On preliminary objections, the court ruled that plaintiff had not exhausted its administrative remedies and accordingly dismissed the complaint.
Plaintiff then reapplied to the Art Commission which, after a hearing, again disapproved the signs. This decision was appealed to the Board which ordered
the Department to issue the permits. The Commissioner refused to issue the permits on the ground -- later reaffirmed in an opinion of the City Solicitor to the Board -- that the Board's decision was illegal since approval of the Fairmount Park Commission had not been obtained. Plaintiff then requested the approval of the Fairmount Park Commission which disapproved the signs because they do not comply with Fairmount Park Regulation 14-2003 (3) which provides: "Billboards: Approval for the erection, alteration, use, location and display of billboards will be granted provided they are to be unilluminated and not more than twelve by twenty-five feet in size, are set back not less than one hundred fifty feet from the said boundary lines and upon any individual lot of ground are not less than fifty feet apart." (Emphasis added.) This decision also was appealed to the Board which again ordered that the sign permits be issued. The Commissioner again refused to issue the permits on the ground that, in the opinion of the City Solicitor, the Board's decision is contrary to law. Thereupon the plaintiff instituted this action of mandamus.
The court below found it unnecessary to consider whether or not the Board was correct in its decision. As framed by the court below, the issue determinative of this case is whether or not the city must obey the Board's unappealed decision or whether it may, "by the simple expedient of a Law Department memorandum, circumvent an order of a quasi judicial agency of the city when acting in its judicial capacity." Citing Merchants' Warehouse Co. v. Gelder, 349 Pa. 1, 36 ...