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PARK OUTDOOR ADVERTISING COMPANY v. COMMONWEALTH PENNSYLVANIA (12/27/84)

decided: December 27, 1984.

PARK OUTDOOR ADVERTISING COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the Department of Transportation in case of Commonwealth of Pennsylvania, Department of Transportation v. Park Outdoor Advertising Company, No. Judges Williams, Jr. and MacPhail and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 86 Pa. Commw. Page 507]

This is an appeal from an order of the Department of Transportation (DOT) affirming the revocation of sign permits pursuant to the Outdoor Advertising Control Act of 1971 (Act), Act of December 15, 1971, P.L. 596, as amended, 36 P.S. § 2718.101-§ 2718.115 and the regulations promulgated thereunder. We affirm.

On September 16, 1983, DOT notified Park Outdoor Advertising Company (Petitioner) that three of its billboards located along Route 11, Larksville Borough, Luzerne County, Pennsylvania, were in violation of the Act because they were newly built in a conservation area. On October 8, 1982, DOT notified Petitioner that it intended to revoke the sign permits in accord with the provisions of the Outdoor Advertising Devices Regulations, 67 Pa. Code § 445.6(e)(1). On October 26, 1982, Petitioner appealed from that notice.

[ 86 Pa. Commw. Page 508]

A hearing was held, after which the hearing examiner concluded that the signs in question had been abandoned as defined at 67 Pa. Code § 445.8(b)(5); that new billboards had been erected in violation of the Act; and that Petitioner must remove the abandoned signs. Petitioner filed exceptions which were dismissed by DOT on September 21, 1983, at which time DOT confirmed the hearing examiner's report. The instant appeal followed.

The revelant facts are uncontroverted. From 1952 to 1982, the three billboards in question were comprised of a metal poster panel surrounded by a wooden frame supported by wooden stands. These signs were nonconforming signs as defined by the Regulations.*fn1 In 1982, the Petitioner changed the signs so that they now have a metal poster panel surrounded by a metal frame and catwalk, supported by a single steel post.

Initially, Petitioner contends that DOT exceeded its authority in promulgating the regulation pertaining to abandoned signs. In pertinent part, 67 Pa. Code § 445.8(b)(5) and (c) provides:

(b) Abandoned sign defined. The following signs shall be presumed to be abandoned. . . .

(5) A nonconforming sign, otherwise compensable under section 9 of the act (36 P.S. § 2718.109), which since the date on which the sign became eligible for compensation, has been enlarged, illuminated, or structurally improved in any manner (except normal repairs) or the location of which has been changed. . . .

(c) Removal of abandoned signs. Signs that are abandoned shall be removed by the persons

[ 86 Pa. Commw. Page 509]

    responsible for the erection or maintenance thereof. . . .

Our Supreme Court in Uniontown Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 77, 313 A.2d 156, 169 (1973) distinguished between appropriate rule-making authority and the inappropriate abuse of that authority, noting that in ...


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