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decided: May 2, 1989.


Appeals from the Order of the Court of Common Pleas of Philadelphia County in the case of Sameric Corporation of Chestnut St., Inc. v. Philadelphia Historical Commission, No. 3955 April Term, 1987.


J. Shane Creamer, with him, Richard A. Sprague, Hugh J. Bracken and Leslie M. Thoman, Sprague, Higgins & Creamer, for appellant.

Maria L. Petrillo, Chief Assistant City Solicitor, with her, Seymour Kurland, City Solicitor, and Ralph Teti, Chief Deputy City Solicitor, for appellee.

President Judge Crumlish, Jr., Judge McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 125 Pa. Commw. Page 521]

Sameric Corporation (Sameric) is the owner of a motion picture theatre in downtown Philadelphia. It appeals the Philadelphia County Common Pleas Court orders which dismissed its challenge to a Philadelphia Historical Commission (Commission) decision*fn1 and denied post-trial

[ 125 Pa. Commw. Page 522]

    relief. This is a case of first impression in this Commonwealth.

The Commission held public hearings and concluded that Sameric's Boyd Theatre merited historic designation. The Commission found that the building was the work of a prominent Philadelphia architectural firm and that the theatre's exterior and interior remained a rare example of a substantially "intact Art Deco movie palace" representing a significant phase in American cultural history.*fn2

On appeal, Sameric argues that substantial evidence does not support the Commission's designation of the theatre's exterior as historic. It also argues that the commission exceeded its authority by including the theatre's interior in that designation.*fn3

Initially, we hold that the testimony of Dr. David Brownlee,*fn4 a commission member, supports the commission's

[ 125 Pa. Commw. Page 523]

    determination that the building exterior*fn5 merited preservation under the statutorily specified criteria.*fn6 Although Sameric provided evidence that the exterior's art deco design had undergone significant alterations,*fn7 the record discloses that the Commission did not automatically equate the theatre's architectural significance

[ 125 Pa. Commw. Page 524]

    with its originality or alterations per se. Rather, the Commission interpreted the ordinance to allow designation of the interior and exterior if the redecorations or alterations left the building a substantially intact art deco representation.*fn8 Thus, we conclude substantial evidence supports the Commission's findings.

The more perplexing problem we must resolve is whether the Commission exceeded its authority by designating as historic the interior of the theatre. The ordinance vests the Commission with the authority to designate "buildings, structures, sites and objects." Section 14-2007(4). The Commission relied on the ordinance's definition of "building" as "[a] structure, its site and appurtenances created to shelter any form of human activity." Section 14-2007(2)(b). On this aspect alone, we believe that in order for a building to effectuate the process of sheltering it most certainly requires an interior. Moreover, where the words of a statute or ordinance are not explicit, the intent may be ascertained by considering, among other matters, the object to be attained. Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(b); City of Pittsburgh v. Royston Service, Inc., 37 Pa. Commonwealth Ct. 394, 390 A.2d 896 (1978).

Here, without explicit reference to building interiors, the ordinance seeks to protect architectural styles significantly' representative of historical and cultural development. Thus, we are not persuaded by Sameric's argument that the ordinance may legitimately preserve the theatre's exterior but exclude its interior. This is so, particularly where the interior design reflects the same architectural elements.*fn9 Rather, we conclude that the

[ 125 Pa. Commw. Page 525]

City Council intended "building" to include both interior and exterior.*fn10

Sameric also contends that even if the Commission's interpretation of the ordinance is valid, designation of the interior theatre is an unconstitutional exercise of the state's police powers. Sameric argues that the restrictions placed on its interior private property by historic designation do not demonstrate a substantial relationship to the public good demanded in Section 27 of the Pennsylvania Constitution.*fn11 We disagree.

The Constitution provides that the public good to be protected is the preservation of the historic and esthetic environment. Although Sameric acknowledges that designating a building's exterior arguably has a reasonable relationship to such environmental values, it intimates that the public good can only be served if public viewing is possible.

However, while Sameric operates a theatre for private economic return, it necessarily depends upon public

[ 125 Pa. Commw. Page 526]

    patronage to sustain it. In so doing, it provides an environment consistent with the public's appreciation of an ongoing art deco decor. Under these circumstances, the theatre's interior becomes an essential part of the community's historic and esthetic values. Thus, we conclude the constitutional language clearly includes the appreciation of these interior values, albeit at the expense of economic benefits sought by private enterprise.

As has been spoken by our federal colleagues in construing a similar statute:

Even if plaintiff's argument that a public purpose can only be served by public viewing . . . were accepted, there are in fact numerous conceivable private uses of the interiors of buildings which are compatible with public viewing of the area. Any private use which depends upon public patronage, e.g., a hotel or department store, would allow the public to view and enjoy the interior . . . . A theater is but one example where, without mandating public invasion of the building or depriving its owners of its only economically viable use, the government can reasonably be expected to satisfy a number of the purposes of a historic preservation statute. . . .

Weinberg v. Barry, 634 F. Supp. 86, 93 (D.D.C. 1986).*fn12

[ 125 Pa. Commw. Page 527]

Moreover, if Sameric should close the building's interior, public viewing is not the sine qua non to serve a public good. In granting the Commission authority to designate the interior, the ordinance acknowledges the Constitution's mandate that the Commonwealth's historic and esthetic values "are the common property of all people, including generations yet to come." Art. I, § 27. As trustee of the historic environment, the Commonwealth must execute a farsightedness which, at times will necessarily transcend private interests. Allowing a private property owner to escape designation of his building's interior simply because the owner may choose to deny public access deprives the Commonwealth the opportunity to preserve its historic resources. It also discourages rehabilitation of existing structures for current or potentially different uses. Although Sameric may permissibly choose to close the theatre's interior, we are not so omniscient to conclude that future owners will not use the building in a manner that once again allows interior public appreciation.*fn13 Thus, because the Ordinance's articulated purposes*fn14 specifically acknowledge this public benefit for which our Constitution provides, we conclude that applying the ordinance to allow interior designation is substantially related to the public good protected by the Constitution.

Accordingly, the common pleas court orders are affirmed.*fn15

[ 125 Pa. Commw. Page 528]


The Philadelphia County Common Pleas Court order, No. 3955 April Term 1987, dated May 26, 1987, dismissing the appeal is affirmed and the appeal at No. 1985 C.D. 1987 is quashed.



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