Appeal from the Order of the Court of Common Pleas of Allegheny County in case of John W. Hill v. Borough of Dormont, a political subdivision, No. GD 82-818.
Roger G. Rulong, with him, Margaret F. Houston, Houston-Harbaugh, for appellant.
Lawrence G. Zurawsky, for appellee.
Judges Doyle and Palladino and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Judge Palladino concurs in the result only.
John W. Hill (Appellant) seeks our review of an order dismissing his exceptions to a decree nisi which was entered by the Court of Common Pleas of Allegheny County dismissing Appellant's complaint in equity in which he demanded that enforcement of section 22.16 of the Dormont Borough Code of Ordinances (Dormont Ordinances) be enjoined and that the same section be ordered rescinded.*fn1
Licensing and permit requirements for certain activities which are carried on in Dormont Borough (Borough) are set forth under Article II of Chapter 22 of the Dormont Ordinances. Effective January 5, 1981, subsection 22.16(c) was amended by Ordinance No. 1295 to provide for an annual fee of $75.00 to license a "music box, music machine or music device." Effective December 28, 1981, subsection 22.16(d) was amended by Ordinance No. 1310 to provide for an annual fee of $300.00 to license an "amusement device,
machine or instrumentality . . . operated by the insertion or tendering of a coin, metal disc or other token, for profit."
Appellant operates a pizza parlor in the Borough. He maintains one jukebox and one video game on the premises. The parties agree that jukeboxes come within the provisions of section 22.16(c) and that video games come within the provisions of section 22.16(d). They also apparently agree that section 22.16 is within the scope of Section 1202(30) of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202(30), which provides that a borough may "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."
An ordinance falling within the police power of a borough is presumed to be in furtherance of the public health, welfare, safety or morals. Phillips v. Borough of Folcroft, 44 Pa. Commonwealth Ct. 83, 403 A.2d 194 (1979). Appellant has not specifically challenged this presumption. He argues, however, that the license fees imposed on his machines are unconstitutional because they are not accompanied by a scheme of regulations for enforcement, and because the costs of enforcement do not justify the amount of the fee.
In support of his first argument, Appellant refers us to E. McQuillin, The Law of Municipal Corporations, § 26.16 (3rd ed. 1978), which states:
[A] declared or obvious purpose to regulate, although not controlling or conclusive, tends to establish an exaction as a purely regulatory licensing fee. But an ordinance having no provisions for regulation and imposing ...