George Washington Motor Lodge Co. v. Commonwealth

545 A.2d 493, 118 Pa. Commw. 552, 1988 Pa. Commw. LEXIS 658
CourtCommonwealth Court of Pennsylvania
DecidedAugust 12, 1988
DocketAppeal No. 2955 C.D. 1987
StatusPublished
Cited by8 cases

This text of 545 A.2d 493 (George Washington Motor Lodge Co. v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George Washington Motor Lodge Co. v. Commonwealth, 545 A.2d 493, 118 Pa. Commw. 552, 1988 Pa. Commw. LEXIS 658 (Pa. Ct. App. 1988).

Opinion

Opinion by

Judge Palladino,

George Washington Motor Lodge Company (Petitioner) appeals an order of the Department of Transportation (DOT) which denied Petitioners application for an advertising device permit (permit). We affirm.

Petitioner has a dual-faced sign structure on its property located adjacent to Traffic Route 22, a primary Federal Highway, in Whitehall Township, Lehigh County, which currently displays on-premise activity advertisements on both faces. On June 22, 1985, Petitioner requested a permit, pursuant to the Outdoor Advertising Control Act of 19711 (Act) to allow advertisement of off-premise activities on the sign face directed toward westbound traffic.2 Petitioners sign is located within 500 feet of the eastbound exit from Traffic Route 22 but more than 500 feet from the westbound exit.

[554]*554DOT denied the permit request. Petitioner appealed and a hearing was held on October 21, 1985. The presiding officer issued a proposed report denying the permit application on the basis that 67 Pa. Code §445.4(b)(2)(i) prohibits the advertisement of off-premise activities within 500 feet of an interchange. The Secretary of Transportation adopted the report and on December 3, 1987, denied Petitioners permit application. Petitioner filed a timely appeal to this court.

Petitioner argues that 67 Pa. Code §445.4(b)(2)(i) should be interpreted as permitting its sign because the structure and the sign face are more than 500 feet from an interchange available to those motorists to whom the sign would be visible. Petitioner further contends that its interpretation of 67 Pa. Code §445.4(b)(2)(i) is recognizable from the regulations language, is consistent with other sections of the regulation, and would eliminate an unconstitutional use of police power. In the alternative, Petitioner maintains that the sign fits the exception listed under 67 Pa. Code §445.4(b)(2)(iii) and therefore, the advertising device permit should be granted.

Interpretation

An administrative agency’s interpretation of its own regulation is controlling unless (1) that interpretation is plainly erroneous or inconsistent with the regulation or (2) the regulation is inconsistent with the statute under which it is promulgated. E. Smalis Painting Company v. Department of Transportation, 70 Pa. Commonwealth Ct. 90, 452 A.2d 601 (1982).

The regulation at issue, 67 Pa. Code §445.4(b)(2)(i), in pertinent part provides:

(2) Spacing of signs. Spacing of signs shall include the following:
(i) Along the interstate system and limited access highways on the primary system, no two [555]*555sign structures shall be spaced less than 500 feet apart; and outside the boundaries of cities of all classes and boroughs, no structure may be erected adjacent to or within 500 feet of an interchange or safety rest area, measured along the interstate or limited access primary from the beginning or ending of the pavement widening at the exit from or entrance to the main-traveled way.

Petitioner contends that in determining whether a sign is within 500 feet of an interchange only the side of the roadway where the off-premise activities advertisement is visible should be considered.3 However, DOT interprets “the exit or entrance” to mean any or all exits or entrances from the sign. While the language of the regulation could support Petitioners interpretation, DOTs interpretation is controlling unless it can be shown to be plainly erroneous. E. Smalis Painting Co. We find nothing in the direct language of the regulation to show that DOTs interpretation is plainly erronous.

In support of its interpretation, Petitioner points to section 5(c)(2)(v) of the Act which directs that “[t]he distance between sign structures shall be measured along the nearest edge of the pavement between points directly opposite the signs along the same side of the traveled way.” 36 P.S. §2718.105(c)(2)(v). Petitioner asserts that because the Act provides that in measuring the distance between signs only those on the same side of the highway are to be considered, that, by analogy, anything on the other side is irrelevant in any distance [556]*556measurements. Thus, to be consistent with this section, 67 Pa. Code §445.4(b)(2)(i) must be read with the same language. If the legislature had intended this language, it would have included it in the statute. However, this court has no power to insert words into statutory provisions where the legislature has failed to supply them. Seltzer Appeal, 52 Pa. Commonwealth Ct. 121, 415 A.2d 1250 (1980). There is no inconsistency in requiring the measurement of distance between signs to be determined only on one side of the way and measuring the distance between a sign and any intersection no matter where the location.

Constitutionality

Petitioner contends that DOT’s interpretation of the regulation leads to an abuse of police power because the difference between the current on-premise activity advertisement and the proposed off-premise advertisement has no effect on safety. In reviewing the constitutionality of regulations it is a basic premise that the Commonwealth may in the exercise of its police power enact regulations in order to protect the health, safety and welfare of its citizens even though those regulations might impinge on individual property rights. Department of Environmental Resources v. Pennsylvania Power Co., 490 Pa. 399, 416 A.2d 995 (1980). The rule used to judge whether there has been an unconstitutional exercise of police power states that:

‘To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may [557]*557not, under the guise of protecting the public interests, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations! (Emphasis added.)

Commonwealth v. Barnes and Tucker Co., 472 Pa. 115, 123, 371 A.2d 461, 465, appeal dismissed, 434 U.S. 807 (1977) (quoting Lawton v. Steele, 152 U.S. 133, 137 (1894)).

Petitioners safety argument misconstrues the purpose of the Act. Section 2 of the Act states:

The people of this Commonwealth would suffer economically if the Commonwealth failed to participate fully in the allocation and apportionment of Federal-aid highway funds since a reduction of such funds would necessitate increased taxation to support and maintain the Commonwealths road program and system.

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Bluebook (online)
545 A.2d 493, 118 Pa. Commw. 552, 1988 Pa. Commw. LEXIS 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-washington-motor-lodge-co-v-commonwealth-pacommwct-1988.