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BERNICE AND JOHN PHILLIPS v. BOROUGH FOLCROFT (07/06/79)

decided: July 6, 1979.

BERNICE AND JOHN PHILLIPS, APPELLANTS
v.
BOROUGH OF FOLCROFT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Bernice and John Phillips v. Borough of Folcroft, Summary Appeal No. 117 of 1976.

COUNSEL

Jon J. Auritt, for appellants.

David E. Auerbach, for appellee.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 44 Pa. Commw. Page 84]

Bernice and John Phillips have appealed from a judgment of sentence imposed by the Court of Common Pleas of Delaware County for violations of an ordinance of the Borough of Folcroft prohibiting the possession of unlicensed mechanical amusement devices. We affirm.

There is no dispute as to the facts. In 1963, Folcroft adopted Ordinance No. 457 which required the licensing of mechanical amusement devices at an an-annual fee of twenty-five dollars for each device. Ordinance No. 635, adopted January 12, 1976, amended the 1963 ordinance by increasing the annual license fee to $150.00 for each device. The appellants are the owners and operators of The Amusement Center, a business establishment in Folcroft containing twelve leased pinball machines, which are conceded to be mechanical amusement devices within the meaning of Ordinance No. 457. The appellants began operating The Amusement Center in March 1976 and have since

[ 44 Pa. Commw. Page 85]

    refused to apply for licenses and pay the $1,800.00 in annual fees owing on the twelve machines under the amended ordinance. The Folcroft police issued numerous citations to the appellants, and on August 25, 1976, a district justice of the peace found them guilty of twelve offenses of possessing and operating mechanical amusement devices without a license. The appellants appealed the summary convictions to the Court of Common Pleas, which heard the case de novo and again found them guilty of violating the ordinance and entered judgment of sentence.

The issue is whether Folcroft's Ordinance No. 457, as amended, is a valid exercise of the Borough's power to regulate activities within the borough.

The appellants first say that Folcroft has failed to show the need for any regulation at all. This argument is without merit. An ordinance falling within the police power of a borough is presumed to be in furtherance of the public health, welfare, safety or morals. Shomo v. Derry Borough, 5 Pa. Commonwealth Ct. 216, 289 A.2d 513 (1972). Section 1202(30) of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. ยง 46202(30), specifically empowers boroughs "[t]o regulate, license, fix the time of opening and closing, or prohibit theatrical exhibitions, amusements and dances, at which an admission or other fee is charged. . . ." In Murray v. Williams, 162 Pa. Superior Ct. 633, 60 A.2d 402 (1948), the Superior Court held that the licensing of pinball machines is included within this power because it is well known that pinball machines may be used as gambling devices. The president of the Folcroft Borough Council testified that gambling was a factor considered by Council in adopting the amended Ordinance. The appellants have failed to overcome the presumption that the ordinances were in furtherance of the public welfare.

[ 44 Pa. Commw. Page 86]

The appellants next say that the $150.00 licensing fee is excessive because it is not reasonably related to the cost of regulating pinball machines. A license fee is invalid if it is grossly disproportionate to the municipality's cost of regulating a business. Warner Bros. Theatres, Inc. v. Pottstown Borough, 164 Pa. Superior Ct. 91, 63 A.2d 101 (1949). The party challenging a license fee has the burden of proving that it is unreasonable. All doubts must be resolved in favor of the reasonableness of the fee, since the municipality must be given ...


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