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COX v. NEW SEWICKLEY TOWNSHIP. PAVELEK ET AL. V. NEW SEWICKLEY TOWNSHIP (12/16/71)

decided: December 16, 1971.

COX
v.
NEW SEWICKLEY TOWNSHIP. PAVELEK ET AL. V. NEW SEWICKLEY TOWNSHIP



Appeals from the Order of the Court of Common Pleas of Beaver County, in cases of Albert Cox, Jr., v. Township of New Sewickley, Board of Supervisors of the Township of New Sewickley, No. 670 of 1968 and Andrew Pavelek, Joseph Novak, John L. Puskar, Herman L. Wolff, Frank Feits and Russell L. Bonzo v. Township of New Sewickley, Board of Supervisors of the Township of New Sewickley, No. 724 of 1968.

COUNSEL

Alfred L. Steff, Jr., with him Wallover, Scalera, Reed & Steff, for appellants.

Harvey R. Robinson, with him Luce, Robinson & Tosh, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Wilkinson. Concurring and Dissenting Opinion by Judge Manderino.

Author: Wilkinson

[ 4 Pa. Commw. Page 29]

The appellants in these two cases challenge the constitutionality of the provisions of the New Sewickley Township Junk Dealer and Junk Yard Ordinance of 1968. The Board of Supervisors passed this ordinance under the authority of Article VII, Section 702, Clause LVIII of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. ยง 65758. Immediately following its enactment on June 13, 1968, effective June 18, 1968, these actions were instituted to enjoin its enforcement. After a hearing, a preliminary injunction issued. A full hearing was held on August 21, 1968, continued to and concluded on August 26, 1968. The extensive testimony was transcribed,

[ 4 Pa. Commw. Page 30]

    briefs filed, and argument had on August 18, 1969. The court, on June 4, 1970, filed its Opinion and Decree Nisi, modifying the Preliminary Injunction so as to continue it only as to those parts of the ordinance which the court had found unconstitutional, thereby vacating it with regard to the constitutional provisions of the ordinance that remained. The decision of the lower court is affirmed.

A study of the record of this case shows that it has been very capably handled by the able counsel for both the appellants and the appellees, the record is complete, the briefs and arguments well prepared and presented, and the learned court below, on President Judge Sawyer's exhaustive opinion, has given this important case the attention it deserves.

If the lower court's opinion did not deal in detail with many points that are no longer in issue, we would affirm on that scholarly opinion. Instead, we will take each provision of the ordinance which appellants contest and quote, with approval, from portions of the treatment it received by President Judge Sawyer. The references will be to the sections of Ordinance 31 which have been declared to be constitutional by the court below and have been put in issue by appellants in this appeal:

"Section 6. License fee.

"The annual license fee established by Section 6 of this ordinance is $200. Plaintiffs allege that the license fee was set at the maximum allowed by law without regard to the actual costs involved.

"In Commonwealth ex rel. Hines v. Winfree, 408 Pa. 128, 136-137; 182 A.2d 698 (1962), the court states: 'In determining the reasonableness of the amount of a license fee two principles must be borne in mind: (a) the party who claims that the amount of a license fee is unreasonable has the burden of so proving and (b) in matters of this character municipalities must be

[ 4 Pa. Commw. Page 31]

    given reasonable latitude in fixing charges to cover anticipated expenses to be incurred in the enforcement of the ordinance and all doubt should be resolved in favor of the reasonableness of the fee: Wm. Laubach & Sons v. Easton, 347 Pa. 542, 550, 32 A.2d 881.'

"The enabling statute under which this ordinance was enacted authorizes the regulation of junkyards and prescribes the license fee therefor not to exceed $200 per year. As the Pennsylvania Supreme Court recently stated in Mastrangelo v. Buckley, 433 Pa. 352, 385-386, 250 A.2d 447 (1969): 'A license fee is a sum assessed for the granting of a privilege. In most instances, where a license is granted the City invariably incurs expense such as the cost of registration and inspection; it is only proper that one who seeks and receives a license should bear this expense. To defray the cost of a license a fee is charged to the licensee; however, this fee must be commensurate with the expense incurred by the City in ...


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