Appeal from the Order of the Court of Common Pleas of Cumberland County in case of Costos C. Costopoulos, James C. Costopoulos, Thomas Costopoulos, E. L. Wiser, Frank P. Shaner, Clyde C. Millner, Richard C. Johnson, Anthony Butto, Charles Kollas, Athanasios Katsaounis, Samuel A. Miller, Melvin L. Line, Paul Cline, Sheila O. Clark, George W. Adams, Loyal Foust & Richard Zammito v. Zoning Board of Adjustment & The Borough of Carlisle, No. 2 January Term, 1974.
William C. Costopoulos, with him Kollas & Costopoulos, for appellants.
William F. Martson, with him J. Wesley Oler, Jr. and Martson and Snelbaker, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Kramer. Judge Mencer joins in this dissent.
[ 23 Pa. Commw. Page 161]
On March 13, 1969, the Borough of Carlisle, Cumberland County, Pennsylvania, enacted Ordinance 1056 (ordinance), here in controversy. The ordinance prohibited the erection or maintenance of projecting signs*fn1 over public areas and mandated the removal of like existing signs at the expense of the owner thereof, no later than March 13, 1974. In February of 1974, the instant action was commenced and on March 2, 1974, the Cumberland County Court of Common Pleas issued an order staying enforcement of the ordinance pending a final determination of the case on its merits.
On May 3, 1974, a hearing was held before Judge Clinton Weidner. At that time, appellants introduced evidence showing the appellants, plaintiffs below, were merchants in Carlisle who had previously erected on their commercial establishments*fn2 projecting signs in accordance with the then existing law, that the signs were of substantial expense when purchased, would be of greater expense to reproduce today,*fn3 and would cost
[ 23 Pa. Commw. Page 162]
hundreds of dollars to remove. The appellees, defendants below, presented testimony which was controverted by the appellants, attempting to prove that the ordinance would eliminate hazards to motorists and pedestrians, facilitate firefighting, escalate real estate values and be of aesthetic benefit to the community. The appellants introduced testimony that the signs in question were then, and in the future could be, maintained in a safe condition.
On September 20, 1974, the Common Pleas Court ruled the contested ordinance valid. The appellants filed exceptions to this adjudication which were dismissed by the court en banc on April 4, 1975, and a final decree, affirming the earlier decision adverse to the appellants, was entered. It is from this decree that appellants now appeal.
Ordinarily, a presumption of constitutionality arises whenever an ordinance is attacked, putting the burden of proving unconstitutionality on the party asserting invalidity. Borough of Tarentum v. Sadecky, 16 Pa. Commonwealth Ct. 163, 329 A.2d 328 (1974). Appellants, citing Beaver Gasoline Company v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971), and Amerada Hess Corporation v. Zoning Board of Adjustment, 11 Pa. Commonwealth Ct. 115, 313 A.2d 787 (1973), urge us to find that in the instant case, there is no such presumption because the ordinance constitutes a total zoning ban on an otherwise innocuous use. We must disagree.
The rule and cases cited by the appellants pertain to zoning ordinances. The ordinance before the Court regulates public rather than private property. Furthermore, the instant regulation is not a total ban on signs; any sign, even a projecting sign, is permitted if entirely on private property and signs parallel to buildings are permitted over public areas.
Appellants dispute the right of the appellees to control the streets and sidewalks of the Borough of Carlisle. Although the burden was upon them, appellants presented
[ 23 Pa. Commw. Page 163]
no evidence establishing their ownership or right to use of the space in question. Appellees, on the other hand, entered into the record a 1751 street plan showing the width of the streets of Carlisle to include the contested area. Appellees also relied on Bruker v. Carlisle Borough, 376 Pa. 330, 102 A.2d 418 (1954), a case in which the right of the Borough of Carlisle to modify the market square was contested. There, the Honorable Chief Justice Horace Stern, speaking for the Court, stated:
"[T]here is no doubt that the mere fact of the use of the Square by the public for now more than 200 years, is sufficient to raise a conclusive presumption of an original grant for the purpose of a public square; such as an ancient and well established principle of law: Wallace v. Harmstad, 44 Pa. 429, 496; cf. Hoffman v. City of Pittsburgh, 365 Pa. 386, 389, 75 A.2d 649, 650." 376 Pa. at 336, 102 A.2d at 421.
An ordinance similar to the ordinance hereunder consideration was the subject of Congress Hotel Company v. Samuel, 66 Pa. D. & C. 418 (1948). The court there said:
"In the case of signs wholly on private property, the municipality, under the police power delegated to it by the State, may regulate all structures within its corporate limits, provided the regulations bear a substantial relation to the maintenance of the health, safety, morals, and welfare of the community. . . . But where signs or other devices project over public property or encroach upon the air space over it, the law is clear that the municipality may regulate them without regard to the public safety, welfare and morals, and may do so on the theory that no one has a right to appropriate to himself that which belongs to the public. . . ." 66 Pa. D. & C. at 422. (Citations omitted.)
[ 23 Pa. Commw. Page 164]
In Lenon v. Porter, 65 Pa. Superior Ct. 94 (1916), an ordinance of the City of Philadelphia requiring the removal of awnings and awning poles was attacked. The Court upheld the ordinance, deciding:
"He who asserts a right to maintain any structure extending over any part of a public street must show legislative authority therefor or municipal license authorized by statute. . . . It is clearly within the power of the legislature to at any time prohibit the maintenance by owners of abutting property of any structures connected with their buildings extending over public streets, and this power they may delegate to municipalities, to be exercised within the municipal limits." 65 Pa. Superior Ct. at 98. (Citations omitted.)
See also Reimer's Appeal, 100 Pa. 182 (1882), where the lower court decree, enjoining the maintenance of a bay window extending beyond the building ...