The opinion
Dissenting Opinion by
Mr. Justice Bell:
We have repeatedly held that a nonconforming use is entitled to be extended or expanded where that extension or expansion is reasonable, even though <m *13 ordinance prohibits the use in that district: E. C. Schneider, Inc. v. Zoning Board of Adjustment, 389 Pa. 593 , 133 A. 2d 536 ; Firth v. Scherzberg, 366 Pa. 443 , 77 A. 2d 443 ; Humphreys v. Stuart Realty Corp., 364 Pa. 616 , 73 A. 2d 407 ; Peirce Appeal, 384 Pa. 100 , 119 A. 2d 506 ; Blanarik Appeal, 375 Pa. 209 , 100 A. 2d 58 ; Gilfillan's Permit, 291 Pa. 358 , 140 A. 136 . This ordinance which invalidates nonconforming uses, flies in the teeth of all our decisions on this point.
There is no doubt that zoning commissioners may regulate billboards in the legitimate exercise of the police power, i.e. provided the regulation is reasonable and non-discriminatory and is clearly necessary for the health or safety or morals of the people of the district in question. * However, this ordinance which takes and destroys private property, cannot possibly be justified under the principle that it is clearly necessary for health or safety or morals, and consequently it is undoubtedly unconstitutional.
What then is an aggrieved owner’s (or lessor’s or lessee’s) remedy, when his property and property rights are threatened with destruction by the City Solicitor? He is not asking for a permit to erect a billboard, or for a variance, or for an exception; he is not invoking any right or procedure prescribed by the Zoning Act or ordinance, in all of which events he could of course test, inter alia, the constitutionality of the ordinance. He is threatened, I repeat, by the City Solicitor with a destruction of his property. Under these circumstances his obvious remedy — recognized for centuries — is injunctive relief in Equity. Equity lies (1) because plaintiff is threatened with irreparable damage — ¡a. *14 positive destruction of his property for which there is no adequate remedy at law; and (2) because it will prevent a multiplicity of suits; and (3) because the procedure prescribed by the zoning laws has no application in this case since there is no refusal of a permit or of a variance or an exception, and no Order from a zoning officer or zoning board of adjustment from which to appeal.
Chief Justice Stern in Knup v. Philadelphia, 386 Pa. 350 , 126 A. 2d 399 , and Justice Chidsey in the majority opinion in this case have analyzed and reviewed many decisions of this Court pertaining to jurisdiction and procedure in zoning matters. We agree with their statement of the general rule, viz., that the statutory remedy prescribed by the Legislature to test the validity of a permit or of a variance or an exception, and the application and constitutionality of a zoning ordinance, can only be raised by proceedings before a permit (zoning) officer and thereafter by appeal to the Board of Adjustment and then to the Court of Common Pleas. However, the statutory remedy prescribed clearly does not cover and clearly has no application to the facts in this case.
Even if the statutory procedural rule could possibly apply to the instant case, the case would fall within the well recognized exceptions instead of within the general rule. Examples of these exceptions may be found in Pennsylvania State Chamber of Commerce v. Torquato, 386 Pa. 306 , 125 A. 2d 755 ; Kelly v. Philadelphia,, 382 Pa. 459 , 115 A. 2d 238 ; Duquesne Light Co. v. Upper St. Clair Township, 377 Pa. 323 , 105 A. 2d 287 ; Everett v. Harron, 380 Pa. 123 , 110 A. 2d 383 [and cases cited therein].
In Pennsylvania State Chamber of Commerce v. Torquato, 386 Pa., supra, the Court said (pages 328, 329, 330 ):
*15 “Defendants contend that Equity has no jurisdiction for the two-fold reason (a) that the jurisdiction of a Court of Equity may' not be invoked where there is an adequate remedy at law, and (b) it is an established general principle of law that where a remedy is provided by statute or otherwise it must be resorted to and pursued: Collegeville v. Philadelphia Suburban Water Company, 377 Pa. 636 , 105 A. 2d 722 ; Barth v. Gorson, 383 Pa. 611 , 119 A. 2d 309 . These are undoubtedly well recognized principles. However, defendants overlook the fact that it is equally well established that a Court of Equity has jurisdiction and in furtherance of justice will afford relief if the statutory or legal remedy is not adequate, or if equitable relief is necessary to prevent irreparable harm : Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323 , 105 A. 2d 287 ; Wood et al. v. Goldvarg, 365 Pa. 92 , 74 A. 2d 100 ; Collegeville v. Philadelphia Suburban Water Company, 377 Pa., supra; Gray v. Citizens’ Gas Company, 206 Pa. 303 , 55 A. 1135 ; Pennsylvania Railroad Company v. Bogert, 209 Pa. 589 , 59 A. 100 ; Everett v. Harron, 380 Pa. 123 , 110 A. 2d 383 ; Pennsylvania Company v. Franklin Fire Insurance Company, 181 Pa. 40 , 37 A. 191 ; Story’s Equity Juris., §33; Adams v. New Kensington, 357 Pa. 557, 560 , 55 A. 2d 392 .
“Equity likewise has jurisdiction to protect by injunction or appropriate remedy (a) property rights, and (b) personal rights 'where a multiplicity of suits may be prevented or where a fundamental question of legal right is involved’, and where the interests of justice require equitable relief: Everett v. Harron, 380 Pa., supra; Oil City National Bank v. McCalmont, 303 Pa. 306, 311 , 154 A. 497 ; Bell Telephone Co. v. Driscoll, 343 Pa. 109 , 21 A. 2d 912 ; Poinsard v. Poinsard, 117 Pa. Superior Ct. 313 , 178 A. 308 ; Lehigh *16 Valley R.R. v. Graham, 64 Pa. Superior Ct. 437, 450, 451 .”
In Everett v. Harron, 380 Pa., supra, the Court (citing many cases), sustained Equity jurisdiction and granted a mandatory injunction notwithstanding (1) the fact that the act of the defendant in excluding negroes from a swimming pool, was specifically prohibited by §654 of The Penal Code of June 24, 1939, P.L. 872, and (2) the further fact that the said Act prescribed criminal penalties for its violation and (3) the further fact that the plaintiffs had a right to proceed against defendants in a civil action to recover damages. The injunction was granted (to protect personal rights which were placed upon the same basis as property rights) because (a) it would prevent a multiplicity of suits and because (b) the Court considered that all the combined remedies aforesaid were not adequate.
In Duquesne Light Co. v. Upper St. Clair, 377 Pa., supra, the Court (speaking through Justice Chidsey) said (page 339-340) :
“Passing to the latter contention, [the Court of Equity has no jurisdiction] appellants claim that the zoning statute under which its ordinance was adopted provides the exclusive remedy by which the rights of Duquesne might be adjudicated. As a general rule no one is entitled to relief in a court of equity for threatened injury until available remedies at law are exhausted, and our appellate courts have held that under Section 13 of the Act of March 21, 1806, P.L. 558, 46 PS §156, which provides that ‘In all cases where a remedy is provided, ... by any act or acts of assembly . . . the directions of the said acts shall be strictly pursued, . . .’, the remedy provided must be employed: see e.g. Lukens v. Ridley Township Zoning Board of Adjustment, 367 Pa. 608 , 80 A. 2d 765 ; *17 Commonwealth v. DeBaldo, 169 Pa. Superior Ct. 363 , 82 A. 2d 578 . But the exhaustion doctrine will not be applied nor will a party be relegated to a legal remedy if the legal remedy is not adequate and complete or if its pursuit would work irreparable harm; in such case equity has jurisdiction and will afford relief: Wood et al. v. Goldvarg, 365 Pa. 92 , 74 A. 2d 100 .”
For the reasons hereinabove set forth, I would sustain the order of the lower Court which dismissed preliminary objections to plaintiff’s bill of complaint.
Landau Advertising Co., Inc. v. Zoning Board of Adjustment, 387 Pa. 552, 559, 563 , 128 A. 2d 559 , and cases therein cited.