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BOYERTOWN BOROUGH v. GOLDEN PETROLEUM CO. (11/14/68)

decided: November 14, 1968.

BOYERTOWN BOROUGH, APPELLANT,
v.
GOLDEN PETROLEUM CO., INC.



Appeal from order of Court of Common Pleas of Berks County, June T., 1967, No. 147, in case of Borough of Boyertown v. Golden Petroleum Co., Inc.

COUNSEL

Robert I. Cottom, with him Matten and Cottom, for appellant.

C. Edmund Wells, with him Henry T. Crocker, and Wells, Campbell, Reynier & Yohn, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J. Watkins, J., dissents.

Author: Spaulding

[ 213 Pa. Super. Page 309]

This is an appeal by the Borough of Boyertown, appellant, from an order of the Court of Common Pleas of Berks County reversing the summary conviction and fine of the Golden Petroleum Co., Inc., appellee, for violation of the Borough Zoning Ordinance and holding that Article VII, § 701.1(f) of the Zoning Ordinance is an unconstitutional exercise of the zoning power.

Appellee leases and operates a gasoline service station in the Borough of Boyertown. On the service station premises, appellee maintains a large sign mounted on a pole having two sign faces each of which is 30 square feet in area, two cardboard signs approximately 4 by 8 feet in size advertising games and gasoline prices, and lettering painted directly on the exterior

[ 213 Pa. Super. Page 310]

    walls of the station, occupying 368 square feet and more than 25% of the total wall area of the building.

The Borough granted a permit for the maintenance of the sign mounted on a pole. The controversy in this case centers upon the power of the Borough to prevent the appellee from maintaining the other signs on its premises by enforcement of the Borough Zoning Ordinance restricting the erection and maintenance of signs on commercial premises.

The applicable sign*fn1 regulation is found in § 701.1(f) of the zoning ordinance, which provides: "Business or industrial signs may be erected and maintained on the premises of a commercial or industrial use, provided that the total size of all sign faces shall not exceed sixty (60) square feet and that no sign shall occupy more than twenty-five (25) per cent of the area of the wall surface, including window and door areas, on which they are displayed."

Appellee was convicted for violation of § 701.1(f) and fined $100 in summary proceedings before a justice of the peace. The Court of Common Pleas of Berks County allowed a writ of certiorari and reversed the conviction on the ground that § 701.1(f) was in violation of the Fourteenth Amendment to the United States Constitution since it was not reasonably related to the public safety, health, morals or general welfare. This Court properly has jurisdiction of the appeal from the order of the Court of Common Pleas. Commonwealth ex rel. Ransom Township v. Mascheska, 429 Pa. 168, 239 A.2d 386 (1968).

The only question raised by the parties in this appeal is the constitutionality of the application of § 701.1(f) to ...


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