Bertera's Hopewell Foodland, Inc. v. Masters

nothing simply property There industrial involved. dis- in fund the record to show that the size of the larger Attor- tributable these creditors is because ney resisting claims. Resnick’s services their requirement the attor-

With reference ney’s litigation by in the services be rendered Attorney fund Resniek’s seems clear raised, string proceedings claim—based on his efforts taxing before and local his authorities, various state negotiations supply equipment credi- with various litigation Westing- and his with Penn tors, Mutual, qualify. house and U. S.—does not paid Attorney No doubt Resnick is entitled to be for his But his are not related to services. services so the fund before the court that other creditors his equity expense. proper bear clients should His against remedy anis action Finkel or Werner for their personal debt.

The order of the court below is vacated and the record is remanded further action consonant with opinion. part Mr. took no Justice the consideration Cohen or decision this ease. Hopewell Appellant,

Bertera’s Foodland, Inc., v.

Masters. C. J., Bell, Before September 1967. Argued Rob- O’Brien Cohen, Eagen, Musmanno, Jones, JJ. erts, him Martin M. Bhein- Teitelbaum, with

Hubert 1. Teitel- 8 ujier <& Conte, Morris, Allan and John man, appellant. for Conte Courtney, and A baum, appellees. Attorney, District J. Masters, Robert Opinion November 28, Musmanno, Mr. Justice 1967: Hopewell Foodland, Inc., Bertera’s

The plaintiff, Hopewell Beaver supermarket Township, owns em- which, beginning litigation, at County, whom worked the estab- persons, ployed The District Sundays. Attorney on Beaver lishment Masters, J. informed Food- Robert Bertera’s County, he Sunday, on operate land if it continued Laws” prosecute Closing would under the “Sunday September amended June P. L. §699.15, 24, 1939, 872, pro- P. L. which 27, §4699.15, 18 P.S. 1695, §1, Sunday on the sale exceptions, with certain hibits, meat, produce groceries.

The plaintiff Sunday operation, refused to cease claiming cited, the Amendment above 14th Amend- unconstitutional in that violated ment to the Constitution of the United Stаtes Article aver- III, Pennsylvania Constitution, §7 it to be failed in ring indefinite, equal protec- vague, tion and was not and substantial differ- based real ences are purpose related to the reasonably plaintiff law. The into Court of Com- went mon Pleas of Beaver seek an re- County injunction straining prosecut- attorney district other law ing officers from county, enforcing statute in question.

The lower court held that con- statute was stitutional, injunction was denied and com- plaint plaintiff dismissed. The appealed.

We are satisfied equity jurisdiction. has (Adams v. New 357 Pa. Kensington, 557; Harris-Walsh, Inc. v. Dickson City Boro., Pa. 259.)

The Act of September P. L. 27, 1961, provides that: engages “Whoever in the business of selling at otherwise dealing retail fresh produce meats, and groceries upon shall, conviction thereof in a summary for the proceeding first be sen- offense, tenced to fine pay one exceeding dol- hundred lars and for the ($100), second or any subsequent of- fense committed within (1) one year after conviction for the first be sentenced offense, to pay a fine of not hundred two dollars exceeding or ($200) im- undergo not exceeding (30) prisonment days default there- of.” origi- postscripts many to of the one

This Act is Closing Sunday Pennsylvania Law enacted nal ofAct days Commonwealth, is, earliest merged into April L. and which 177, 3 Sm 22, 1794, From parent P. L. 872. of June the now act original amended has been time to time the Act of on and recreation entertainment allow wholesome provisions re- Sunday.1 original also were strict Its operation permit busi- of certain laxed so as to reasonably necessary con- the comfort nesses detracting people, from venience of the without Sunday, dedi- and still remains, nature which was, Religion, Recreation. cated to the three R’s: Rest and Obviously recrea- much there could not be rest person Sunday food tion for a on if he cоuld not obtain day. everybody fore- on that should While, course, Sunday, Saturday see that he need to would eat lay supply provisions for and therefore should in a prevent yet could realiza- circumstances morrow, anticipation tion of one not be sub- should hardship jected any fasting without when, pure atmosphere, defilement of the Sabbath he could required provender still obtain the to sustain him over Accordingly, Legislature, the weekend. Act apply declared that: “This section shall not any employing retail establishment ten than less persons any or to retail establishment where fresh produce groceries meats, are offered or sold proprietor family or members of his immediate or em- persons ploying apply than ten less nor shall prepared establishment retail where food on the premises consumption.” for human exceptions application have three

We thus to the for convenience in which, the Act, discussion, we will opinion spearheaded writer of in the 1939 General campaign Assembly legislative legaliza- resulted in the professional pictures. baseball and motion tion

25 (1) employs no more than number where the store persons; (2) a and run is owned where store person family (or em- and members of his immediate persons); (3) ploys the estab- no more than where prepares premises pur- eating for lishment food on its poses. plaintiff argues length so

The a statute at vague intelligence guess common at men of must meaning process. play its violates It into due wheels battery support position—-all a unnecessarily. decisions so printed

Obviously, if is a statute proclaimed expressed Eng- badly or is Chinese such permitted lish that one cannot learn from it what is prohibited, is what it cannot be enforced. Instead emphasizing plaintiff should show obvious, vague. attempts wherein statute It is to do this by aiming artillery argumentation against its exceptions aiming faulty three in the but its is Act, sights it because does not set its accordance with Statutory criteria laid down in the Construction (May Act §551), P. L. 46 P.S. 1019, §51, interpreting which declares one law must take “(1) into inter consideration, alia, the occasion and necessity (2) for the law; under circumstances (3) which was enacted; it the mischief to be reme- (4) object (5) died; to be attained; the former including any, upon if other law, laws the same or simi- subjects; (6) consequences particular lar of in- terpretation, (7) contemporaneous legislative his- tory . . .” plaintiff analysis interpretation in its does law discuss the “occasion

necessity says nothing it law”, about ob- “the ject wholly ignores attained,” to be the “former upon “other and those laws law” the same or similar plaintiff subjects.” The treats the law 1961 as wholly entity isolated from an other legislation, begin but with, the enactment but grafted It branch another law. amendment nature original the determine can to the and who tree, studying and resulting trunk the fruit of the without plant? original as of 1961, The Act roots of the the of already Act of the is an amendment stated, original ofAct of the is but a descendant which per- any person or do “If that: shall which declared worldly employment any whatsoever or business form commonly Sunday, of day, works called on the Lord’s only excepted, or necessity charity use or shall and shooting, sport, practice game, hunting, any unlawful day, con- and be or diversion the same whatsoever, every offending, person, shall, victed such so thereof, every pay four dollars, for forfeit and such offence, by re- in he she shall fcobe levied or case or distress; goods neglect pay or to the or fuse said sum, by levy the chattels cannot be whereof same found, days imprisonment he or she shall suffer six distress, county: proper of Pro- in the of correction the house nothing always, herein contained shall vided, prohibit private dressing of in construed to victuals lodging-houses, and other families, bake-houses, inns, sojourners, for of houses the use of entertainment, strangers, or or to hinder from travellers, watermen landing passengers, ferrymen carrying or from their persons removing or the water over travellers, with day, commonly on the Lord’s their families, called Sun- delivery day, to the nor milk, necessaries clock in nine before nor after life, forenoon, in day.” clock afternoon, five same ancestry of 1794 itself traces an This Act back smoking Commandments fulminated Ten from the proclaiming top Eighth, Mt. Sinai, Ninth and provisions thereof: day “Remember Tenth the sabbath days keep holy. shalt thou thy it Six labor and do all day work: But the seventh is the the Lord sabbath of thy God: it thou do shalt not work.” pronouncement part

This divine of the Com- became by mon Law inherited the thirteen American colonies sovereign States of the American union. William Biaekstone, his immortal Commentaries, keeping declared: holy, “the one the seven pub- time relaxation and refreshment as well as worship, lic admirable service consid- state, merely ered as a civil institution. It humanizes help of society, conversation and manners degenerate lower classes, would otherwise into ferocity savage spirit; sordid selfishness of pursue occupa- enables the industrious workman to his ensuing tion in the week health and cheerfulness; imprints people on the minds of the that sense duty necessary good their to God so to make them yet but which be citizens, would worn out and defaced by an unremitted continuance of without labor, recalling worship stated times of them to the of their (4 63) Maker.” Bl. Comm. England

Before William Penn sylvania, left for the proprietor, of which he fellow-Quakers was he and his adopted May on a code 5, 1682, the 36th of laws, according good example which reads: “That to the primitive every and for Christians, the ease of creation, day people Sunday, first called week, shall ab- daily stain from their common they may that labor, dispose worship better themselves according to God understanding.” their

The (December first law enacted the Quakers, 1682) forming government after 7, which was to be- come the of Pennsylvania, Commonwealth declared “people shall abstain from their usual and common toil Sunday. on varying and labor” The law, language, reenacted 1705, 1786. Then, when ink on Constitution the United States had April Assembly General recently dried, but con- still law which parent Sunday 1794 enacted in Pennsylvania. trols have there indicated,

From time to as already time, allow in order to the Act of 1794, been modifications of for opportunity increased people Pennsylvania but spiritual forces, and physical their revitalizing principle from the has never deviated Legislature and recrea rest dedicated day religion, not be atmosphere its must sanctified tion, objec through defiled crass commercialization. “the tives of the Act 1794 were secure: observance enabling thereby of a of rest for the community, his according one to to the dictates every worship disturb without and without distraction, conscience, immorality.” and thus check to vice ance, giving v. Union Passenger 54 Pa. (Sparhawk Ry. Co., 409.) for

Leaving aside the moment to rest right apart which is indisputable, setting Sunday, moment the not to right recreation, which is equally of a citizen of Common- questioned, right free of wealth to be distracting and commotion noises, from industrial and arising commercial pursuits, could his protected disturb worshipping, the law all 1794 and its amendments. As have churchgoers to be saved from the right of cannon or the firing drums their outside of beating houses worship so also are protected householders Sunday, under of the Commonwealth from laws turbulences generated population excessive movement attendant on busi- not enterprises within falling ness exceptions list- Laws. Sunday Closing All ed the legislation on departs premise from the subject that Sunday is from the other days. different The day plaintiff no- seems argument in its to recognize where this basic without 1961 is which debate the law fact, empty sound. Com.,

Justice Woodward the case of Johnston v. subject juridical elo- Pa. illuminated the with quence to when he “It would a small boon said: people Pennsylvania to their indefeasible declare right worship according to of their God to the dictates din amid em- conscience, confusion secular ployments every hand of with desecrations on they conscientiously what time. believe to be hallowed compel go designed These statutes not men to were worship or to God church, manner incon- pergonal compel preferences, sistent a ces- but employments sation those calculated to which are rights interfere with those chose to assemble who public worship. apart pur- for The was set penal pose, guard they and the enactments but leave it, every purpose man free to it for the or If use not. he purpose pro- designed, wish use it for the the law annoyance him tects from the of others—if he do not, annoying it him restrains from who do those so use it.”

There no is merit to the contention that clos- ing impinge laws on the First Amendment to the U. S. prohibits Constitution which the “establishment of reli- inseparably gion,” pro- associated with because, scription, there is the mandate that there shall be no prohibition religion. of “the free exercise” of government of our founders and the drafters of our always high in laws held their minds and close to their sanctity they hearts the Sabbath as enacted legislation with reference thereto. Thus, would be compel of the First people, a violation Amendment to accept Sunday religious day, aas who to work on that day. arbitrary, of America are

The laws mathemati- pronouncements policy, program devoid phi- cal course, Of nation.2 religious America is a

losophy. made be can belief it no religious fundamental is everyone office and public holding condition of avowals religious live act without free to and govern- of our whole structure kind. Nevertheless, of principle upon the and founded, operates, ment is bodies Our Supreme Being. legislative a belief call and reverence our courts bespeak religious and up- and for guidance of the upon the Author universe proclaims of our Chief Executive the holding truth, the carries unit monetary days prayer, every “In We God Trust.” legend in the affairs Deity recognition

Universal Sabbath, finds most forceful on expression men its also of church but Sunday, because services on of fam the reunion because that is dedicated to parental affection, of filial and manifestation ilies, among general the fraternization neighbors, disposition toward acts of benevolence. charity and disposed good more to do what one man is Say will, crimes than he is the week. Less Sunday throughout days. are committed on than on week Day the Sabbath people recognize The whole seems to body truce industrial general commercial, professional arena which might regarded quite extraordinary during week. Justice Harlan Court the United in the Supreme States case v. Hennington Georgia, ap U.S. 299, quoted from proval Justice while discussing a who, stat: Field California relating ute of day, Sabbath said: is a from requirement cessation “Its labor. its enact given has Legislature sanction of ment, law entire conduct, a rule of civilized world rec to the physical as essential and moral ognizes well-being Douglas Supreme Court of the Justice United States (343 said, v. Clauson of Zorach (1052)) in the case U.S. 306 : “We people.” religious are a Upon society. subject there concurrence no such a among opinion, philosophers, states of and moralists periodical necessity of of men all on the as nations, rule, from labor. in cessations One seven is by experience, . . founded and sustained science . Sunday prohibition ad of business secular general by ground welfare on the it the vocated physi protected, and and the moral labor advanced, promoted.” well-being society (Ex of Parte New cal 502.) 9 Cal. man, recognizes appreciates more truths

No one and these people They working have of America. than the just struggled long arduously meas- and to achieve a appropriate recompense of for labors and an ure period their recuperation inti- of and for time for rest and companionship mate their de- families. These into fabric of our laws are now written siderata policy part ‍​‌‌​​​​​​​​​​​‌‌​​‌‌​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​‌​‌​​‌‌‌‍public and become much of the have principles in the Dec- the nation as the enunciated Independence. policy, laration in that Breaches imperative necessity stemming from rea- without security general sons of and must health, welfare, permitted reasoning as that ad- under artificial such plaintiff vanced lawsuit. plaintiff for

To to do it contends allow what Sunday to make no different from Tues- would be here, plaintiff operate Thursday day if the can because employees larger Sunday, with 40 establishment operate all of whom would be taken from can with deprived and all of would their families whom thus be inspirational and recreational bene- reverential, Day. in the Sabbath inherent Justice War- fits Chief aptly Maryland, the case said McGowan v. ren affecting public 444. “Numerous laws U.S. 420, safety industry, affecting factors laws hours health, of labor women and conditions week- children, and parks at and and cultural beaches, diversion activi- end point way ties various toward now kinds, good Sunday Closing be- life all. like those Laws, part gov- parcel great fore have become of this us, pur- apart original wholly ernmental concern from their poses or connotations.” building

Sunday Closing Laws contribute to the because the rest and relaxation of Sab- character atmosphere enjoyed general of a bath are in the introspection Divinity guides destiny, invites deeper appraisal retrospection, invokes society. man It what one owes his fellow and to anyone which can be attested to who is a truism, experienced repose has that the contrast, inactivity is more restful and salubrious to him than weekday. weekday on a The absence of on work a merely shutting means of the human machine down day, Sunday for a but the leisure a carries with it spirituality gained through which been has cen- spirituality. turies of dedication to day It is another truism a that is more mean- rest ingful, rehabilitating more and more to ele- conducive thoughts enjoyed vated when it is than others, spent society when it is while the remainder of alone, fights antagonisms fends and in the mundane of a weekday. Specht Bell Justice well in the case of said, agree v. 8 Pa. Commonwealth, “all 312, to well-being periods society, absolutely of rest are necessary.” cogently pro- He then added that “to required periods advantage, ductive of the these must at stated so that recur intervals, mass of community composed, may enjoy respite from a labor the same time.” at Maryland,

In v. McGowan 366 U.S. 420, Chief purpose said: “The Justice State’s is not Warren provide merely one-day-in-seven a stoppage. work the State day apart this, addition seeks to set one day from all others repose, rest, recreation tranquility—a day and fam- which all members ily community spend opportunity and have the enjoy together, day relative which there exists quiet intensity everyday and disassociation from people may of commercial on which activities, during visit friends and relatives are not who available working days.” controversy

The law of 1961 here reaffirms principles outlining enunciated in the Act of 1794 punishments engage those who in the business selling dealing products at retail in Sun- certain day. the Act of 1961 must Therefore, be read light of the torch whose solemn incandescence has nev- ignited er dimmed since it was in 1794. plaintiff

But the in the case one at bar sees spark tiny peripherally shooting off from torch apparently may believes it out entire snuff spark. if torch can it smother that one And so, plaintiff minutely studies and individual words dissects closing eyes in the ofAct its the whole struc- language up subject ture built on the Closing Laws, which must be considered when Statutory as one under the one, must, Construction necessity Law, consider “the occasion and for the law.” The statute of like must be document, atmosphere read the climate and which saw come into existence. A statute cannot be dissected into in- being dividual each one words, thrown on to the anvil meaning of dialectics to be hammered into a which has no association with the words from it which has vio- separated. lently been plaintiff declares

The that the statute of 1961 is vagueness for unconstitutional because it “does not as to whether working inform us less only than ten exemption applies on invokes the or whether it having only total those a to less employees than ten they work Sunday.” do not all on if even 34 clearly Exception reading 1 demonstrates No.

A employ applies only it establishments to such purpose Ex- persons any time. The less than 10 at operate ception stores No. to allow small knowledge purposes. that, It is common necessitous despite ever-swelling met- of modern dimensions the ropolises, percentage high Commonwealth’s a population com- semi-rural or still lives small towns not as are and hotels where restaurants .munities, lamp posts. plentiful mod- of those absence the people dining to what turn non-urban ern facilities, all-provider, century for the been has, two, last village, hamlet, for the as a hen her chicks, with namely, grocery Gen- Thus, corner store. town, permanent Sunday Assembly legislated exist- into eral prevent, purely To American institution. ehce shop a take on size that the little should however, shape something than more which would turn it into Legislature proverbial grocery corner store, placed persons could on number who limit of 9 employed in the store. persons employs hundred

An which establishment operate Sunday, during may if even the week not persons. With it calls out work on that possi- development phenomenal automation per- supermarket employing ble to conceive during the use of week, could, sons employees, install which could be these 100 operated devices operation persons Sundays. Such up large building mass move- crowds, could cater leading traffic conditions to the com- ment and crass which the Sabbath laws Penn- mercialization through sylvania, consistently have centuries, down prohibit. determined Exception language vague. No. 1 is not It apply

says not Act shall “to retail estab- persons.” employing than ten less It does lishment

35 establishment, It say any Sunday establishment. says period.

The if plaintiff pro- happen asks what would prietor of a store and prepared potato cole slaw salad, hot and at the dogs pro- same time sold fresh meats, duce and groceries that he employed such volume persons? The be ar- 1,000 answer is that he would if rested he did fall this on he would because Sunday, under the provisions of 1 Exception says No. which the sale of fresh produce groceries meats, must be accomplished persons. not more than 9 The preparation of potato cole and hot dogs slaw salad, comes under Exception No. which will be discussed later. plaintiff

The asks why should there be a distinction between grocery persons store which 9 employs one persons? 10 The employs answer is that a line must be drawn somewhere. man young isWhy 21 under from exempt contractual obligations involv- ing non-necessaries and one who is exempt? so If the line were not drawn at where would next stop At be? 55? 30, 40,

Exception No. ais humanitarian are one. There small many family-owned grocery stores from which derives its family livelihood. It unjust would be shut down this of a type store, while allowing op- eration marts which employ persons. Since mem- bers of an immediate do family not, except rare into an go instances, excessively numerous there figure, no that a corner danger grocery store could swell mammoth supermarket into a manned by polygamists hundreds children. boasting What plaintiff asks, is an immediate family? Random House

The New Dictionary (published in family (this being defines the first 1966) definition in meanings) “Parents list their children, dwelling together not.” Of whether we course, know capable far aof “family,” in is itself, that the word scope. uncles, aunts, include It can more extensive that clear but it is nephews, and so on, nieces, cousins, exception consideration under in the statute the clause span con- the whole not intended to embrace restricts sanguineal statute The and in-law relatives. family.” re- This “family” to “immediate (cid:127)the word col- phrase and excludes lineal relatives stricts Pa. 422 In Miller v. Preitz, lateral relatives. pres- special here not under circumstances this Court, nephews may “family” include said that the word ent, being language pointed inter- there but it out that unduly preted restrictive.” not intended to be “was unduly language restrictive. to be is intended Here considering family” says and that, It “immediate Legislature, mean can of the obvious intention exception go and children. To have wife husband, meaningless beyond that of relatives would make circle exception, namely, to restrict intent of the whole operations fam- If “immediate to small stores. interpreted ily” to include aunts, were to be uncles, grandchildren, nephews, sisters, brothers, cousins, exception purpose of the would be lost because whole such, expansion family could fill Ark. an an Exception part might 2 No.

The second seem literally. Exception says if taken 2 troublesome, be provisions penal apply of the Act shall not that the enumerated commodities offered where “are store proprietor by or members of his or sold immediate employing persons.” (Empha- family less than ten OR supplied.) we must have Here, sis recourse to the says Statutory Act Construction that the intent paramount Legislature is determin- that, guided by ing pre- the Court must be intent, Legislature sumption “that the does not intend a result impossible of execution absurd, unreason- supra: (Statutory Construction Act, able.” §52, Exception §552). 2No. was P.S. “or” in word disjunc plainly conjunctive rather than intended to be interpreta happens tive. This and such sometimes long ago. imprimatur tion Court received the this In Rolland v. Justice 82 Pa. Commonwealth, 306, 326, said: “We are led to the conclusion therefore Paxson read ‘or’ in the word the 135th should section burglary which would that of at ‘and’, make offense construing common law. Such a mode of a statute precedent. without It was done Court Murray Casey Keyes, v. Bollin v. 334; Shiner, Jones Foster 8 & 77.” 205; v. W. S. Com., Supreme

In United States v. 3 Wall. the Fisk, Court of the “In Unitеd States said: the construc duty tion of it is the of the court statutes, to ascertain legislature. the clear intention of the to do order compelled are ‘or’ this, courts often to construe as meaning again meaning ‘and’ ‘and’ and as ‘or’”. approved interpretation

As late we of this Guardianship, in the of Petrash case 425 Pa. 433. Legislature in What was the intention of Ex- the ception family-owned 2? It was to allow stores to any persons operate, because, the number of case, family large. in an immediate could not be At the Legislature deny same could not to time, intend family-operated privilege to the store a assured the non- family operated family- stores. Thus, even a small help might operate owned store need to and it, so, Legislature employ persons. said it could less than 10 Exception Accordingly, penal pro- is to read that apply any the Act visions of shall “to retail es- produce groceries where fresh tablishment meats, proprietor sold are offered or members of family employing [and] his immediate less than ten bridge persons.” To read the parts between the two exception disjunctive in the would make the Exception part of No. 2 blatantly second redundant employees already Exception limits the No. because per- than 10 less retail to a crew establishments sons. excepting fam-

Why Legislature after add, did the employ family right ily-owned for the stores, Although personnel Act up of 9? to the number meaning is coconut it as full of as a is a short one, suppose family-owned store where with milk. Let us family wife the husband, immediate consists n type owned one child. Not allow this against employ help be discriminate store would Exception grocery No. under store, it, since, other up persons. may addition Hence, hire to 9 up employ may family-owned clause that the store persons. tо 9 plaintiff family-held argues cor-

The Exception exempt poration under and thus should Exception reasoning is fallacious because No. 2. This family encompasses concept necessarily No. operating “offering selling” commodi- store, corporation, ais exclude a ties. This would though being, a fictitious mere creation even law, corporation might by only one the stock of the be held family. corporation physically cannot stand “offer the store to and sell”.

Exception is intended to from the No. 3 exclude operation establishments where food law’s such premises consumption. prepared on the for human is particularly exemption apply could to delicatessen This puddings, baked sandwiches, beans, stores where salads, pre- pastries, vegetables, and fruits so are on, stewed pared consumption, for human food re- is, preparation consigned quires being no before further glands gastric grinding the taste and the molars, the juices hungry consumer. actually prem- the food is consumed on the Whether ready consump- it but must be for immaterial, is ises purchases In addition, it. tion the customer when Exception No. of obtain the benefit order to vendor, premises, The prepare, food he sells. must on his prepares plaintiff his record not indicate that the does speaks plaintiff premises. The commodities on the cleaning trimming, “slicing, cutting, dressing, and preparation packaging”, in the sense but this is not Preparation than more must embrace statute. pieces, cutting large piece it into smaller a of meat package large taking item out a means more than plaintiff’s selling package. If and a smaller prepared else- in trade of what is stock consisted exception prohibition. To would devour where, nothing. exempt everything include from a law tois pro- riding saying It be like that horseback would say park except or to hibited a certain horsemen, prohibited popcorn roasting unless popcorn pops. prepare” ready. In relation to

“To means to make prepare according to Webster’s Dic- means, food, get ready eating by assembling, tionary, “to due preserved dressing cooking.” Taking to- cans of selling large the cans matoes out a wooden case dressing separately “assembling, or cook- would not be ing.” wizardry ingenuity

The chefs, science, may of food the resourcefulness mechanics soon reach passed already point, stage if indeed it has pro- culinary magic, where a whole from the meal, soup proverbial may be sealed into nuts, verbial single Park that all the Avenue so hostess would can, grand style, in a in order to serve would be a need, lorgnette. opener can Exception preparation to in referred No. in- cooking,

evitably but it is not includes limited to cook- ing exclusion would reduce such the nation to because since sandwiches to area, disaster minor Americans to the liverwurst the Chinese, rice is to

are what smorgasbord to pasta the Italians, to Germans, Eskimos. to the and blubber Scandinavians, “prepare” plaintiff and tries the verb The takes prelimi- possible stage every it to include stretch product goes it sells nary the final into work which prep- part Lassoing of the a steer is the counter. over Transporting selling is an- the steer beef. aration part preliminary to the leads of the work other Slaughtering porterhouse it, steaks. sale of eventual prepa- part quartering skinning of the it are all it, possession four in the full but no one ration, argue quarters under the stat- brain would of his operate a railroad, a ranch, could ute someone grocery slaughterhouse all on the basis and a store, prairies journey every stage to the from the of the preparation part aof of the delicatessen counter is roast beef sandwich. analyze plaintiff attempts already stated,

As wholly disassociated if it were a the Act of nothing Legislature do if it had and as act of the trying Closing Sunday like Laws. This is building to the 1st floor of a from the 10th descend jump. disaster. It cannot be done without floor one having 1961 without be- the Act of One cannot read analyze the Act one cannot fore him the Act pur- keeping in mind at all times the without Sunday Closing pose Act of 1794 Laws of the argument plaintiff, general. advanced if completely destroy pur- accepted, the intent and would Closing pose which have become an Laws, way part integral American of life. The Amer- workingman entitled to a of rest with his ican family. obvious because of works of that, While persons charity, necessity, some recreation, will be Sunday, engaged required the number to toil so kept keystone minimum. That at is the must

41 Sunday Closing they span nearly the Laws as cen- three turies of American life. wary eye any the law looks with a

Thus, loosen- ing keystone. Every Pennsyl- of that of the decision Sunday Closing vania Courts indicates that Laws are interpreted weekday be in order to avoid a com- mercialization of the Sabbath that lessen rever- would holy proclaimed day, original ence for the as in the succeeding Act of Assembly, the General the relevant interpreting and all the Acts, decisions If those Acts. supermarket may persons employ one 40 under a loose reading super-supermarket of the law of then a may employ super-super-supermarket may em- ploy Sunday may paganism until 6,000 become a of in violation of the intention of the founders our nation, sylvania, architects Commonwealth Penn- expression jurists treating

and the of all the subject. this ‍​‌‌​​​​​​​​​​​‌‌​​‌‌​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​‌​‌​​‌‌‌‍plaintiff many questions,

In its brief the has asked already seeking аs that the indicated, demonstrate vague special legis- statute 1961 is and constitutes questions lation. ofMost have been far-fetched. plaintiff may For has if a instance, asked store persons legally employ proprietor present 100 if Excep- at the sales. The answer to that is found explicitly 2 tion No. family- states that no may employ persons. owned store more than 9 plaintiff support argues, The of its thesis of interpretation vagueness, that if of the three ex- ceptions employment is to limit, event, persons persons, to 9 there would be no need for Ex- Exception ceptions already places 2 and 3 because employees at 9. the limit But that is not the in- terpretation language Exception nor of the Act. grocery employment store to 1 restricts No. Exception operation persons. No. 2 restricts family immediate members and store hired force Exception re- no makes No. 3 9. of not more than employed, may but on the number that striction specifically pre- must be food for sale that the declares premises consumption, pared for human on the food already that the indicated, obvious inference, reasonably The stored. and not is to be eaten soon Exception at simplest No. aims illustration of what delicatessen store. course, is, plaintiff argues unconstitu- statute is that the legislation,” characterizing “special cit- tional it as Philadelphia, respect ing City Chalmers v. Supreme Court declared In that 250 Pa. 251. case engi- provided that an a unconstitutional law which operating engine horse- or over 10 neer a boiler steam power required those whereas to a license, have horsepower operating engine have did not an under 10 between to such a license. difference have A boiler and at steam situation the one bar is obvious. instrumentality engine intrinsically a hazardous horseрower meas- and harm could inflict whether its 10 ured or 50. But the of less than 5 classification persons nothing in the of has statute to do presented problem mechanical hazard. The here is proper size of itself and criterion for classi- size, 193).3 (Durkin Kingston v. fication. Coal 171 Pa. Co., prohibits Certainly a statute which entrance exception into an establishment could animals make an dogs, successfully, but it not be could maintained exception opposition, in that because is made for “special legislation” dogs, it would be to exclude ele- present phants. may A small store no difficulties large employing but a store mass movement hundreds definition found the act of “The 1891 seems to us reason legislative able, fair limits of a definition, within to he and to operations general too such as are small to make exclude applicable provided regulations the act them.” to catering could clerks to thousands customers produce congestion, traffic unbearable noises and pur- general wholly condition violative of the intent pose Supreme Sunday Closing Court of the Laws. The Guys v. of the United States said the case of Two power McGinley, 582: “It U.S. was within legislature businesses have concluded that these atmosphere particularly disrupting were the intended great of the because volume of motor traffic opening danger competitors of their attracted, also large employees. and their ‘Evils number of may in the same field dimensions and different proportions, requiring Or the different remedies .... may step addressing reform take one at a itself time, phase problem to the of the which seems most acute legislative legislature may mind select one .... The phase apply remedy neglecting one there, field (Emphasis supplied.) the others.’” Supreme recognition by This Unit- Court of the right legislature legislate ed States of the one field to the exclusion of other fields should be the objection exempt answer the rather frivolous that to prohibitions grocery store from the of the Act of 1961 would be to introduce “economic discrimination” against large stores. This like in the the horse to fable said the rooster that it fair that tramped if the rooster on the horse’s feet the horse had right tramp to on the rooster. How can the small possibly grocery giant supermarket by hurt store tramping on its mastodonic feet? exception grocery of the corner store from the

operation of the Act of 1939 is the same kind of ex- ception parent which was made Act 1794 for of “private lodging-houses, families, bake-houses, inns, ferrymen of entertainment” other houses and for “car- persons rying the water or removing travellers, over Day.” on the Lord’s families, their the lower court the decision We affirm to however, We wish, constitutional. Act of 1961 is subject interpretation correct an erroneous pro- penalties Act 1961. The the Act of for violation of “upon convic- Act violates the shall vides that whoever proceeding summary of- first for the tion thereof a exceeding one pay fine of not a be sentenced fense, ($100), sub- for the second hundred dollars (1) year sequent after within one offense committed pay a be sentenced for the first offense, conviction ($200) or exceeding hundred dollars of not two fine (30) days thirty imprisonment exceeding undergo not thereof.” default repeats court that if an offender The lower stated lapse following year first his offense after a one his This offender. offense he be treated a first shall sup- No reason be an to recidivism. could invitation ports analysis flout the that one who continues to period if he be treated as time, after a should, law bungler an innocent unaware of the seriousness were аnyone violates of law violation. We hold that who having already the law of after been convicted 1961, subject penalty to the increased shall violation, subsequent occurring year after his offense within one preceding of the next To illus- the conviction offense. person if is convicted of his first offense on trate, January July of his second offense on 1, 1967, January and his third offense he would be 2, 1968, subjected penalty increased offense January though year passed even had 2, 1968, since January offense 1967. his first dissenting opinion, In his Justice Cohen introduces wholly a matter extraneous the issues involved in appeal. doing, In so he makes critical observa- taken on an action Justice tions in a Musmanno factually but jurisprudentially related, situation questions pertinent, to the appeal. advanced in this replies Ap- in Justice Musmanno to Justice Cohen pendix Opinion. immediately follows this A, decree the Court of Common Pleas Beaver County is affirmed.

Mr. Mr. concur Eagen Justice Jones Justice in the result.

Appendix A Reply by Justice Musmanno to Statement

Justice Cohen “Opin- opinion Justice Cohen entitled has filed an Vacating opinion, ion Decree”. toward end he introduces a statement about a matter thereof, which is of no in more relevance to the issue this case than is the rainfall of Kalamazoo. he since However, printed has introduced the statement and it bewill Reports, myself, I State Associate find as Senior compelled, Justice in order that Court, Reports may astray, readers State led point out in Justice Cohen’s what, rain, statement, myth. and what is mist and appear

It would from Justice Cohen’s statement through that he must have read the record this case impervious glasses drenching downpour. or in a Other- agreed wise he could not have failed see that it was parties in the court all below involved litigation, pending disposition that, the issue con- stitutionality of the controverted Act there County be no in Beaver would arrests under the Act. quote I from the record: “Mr. Masters: At- [District torney] agreed, your We have until Honor, such time constitutionality as the of this act is determined we anyone not harass or make will threats or arrest particular operation regard to this until such time Injunction Preliminary hearing as this has been com- deter- has been constitutionality and until pleted Detective’s County originally I add that mined. arrests be that there would did make threats Office filed and been this action has but now since made, has of the act constitutionality has to be—the matter be- from arrests will refrain to be we determined, constitu- is—the time the act made until such as ing Court: determined. of the act has been tionality far so office the prerogatives your You also use will other offi- municipal this to emphasizing local, as enforce- I law Mr. advise all of the Masters: will cials? suit, law named as Defendants ment agencies law State Detectives but the County being municipal officers, and the enforcement officers until the Court and pending matter before is shall no arrests is determined constitutionality made.” Kalamazoo, as clear as the skyline

Now, authorities enforcement that all the law after the rain, presiding approval in Beaver County, there Court open officially asserted Court, Act of in Beaver under the County be no arrests would decided constitutionality its was 1961 until it, namely, had the to decide authority Court which this Court. the contents of to note failing

In addition eagerness his in this Justice case, record Cohen, ignored precipitation Kalamazoo, weather study judicial notice, namely, a matter what also has Allegheny County Common Pleas Court of Attorney Allegheny County District restrained passes until the Act this Court enforcing from constitutionality. on its matter common knowledge. spite this is a

All on the judicial notice state of universal affаirs of this to the Act a W. L. 1961, Clark in appertaining separate three filed informations County against Beaver Hopewell John Food- President of Bertera’s Bertera, charging him with on October land, Inc., violation, arguments appeal of the Act of 1961. The on the appellant taken in the instant case were heard September although 1967. Mr. Clark Thus, president Hope- knew that Mr. of Bertera’s Bertera, actually well in the case Foodland, Inc., involved pending Supreme before the crimi- he instituted Court, proceedings against obviously, nal he Bertera. This, right obviously, had no to do. de- amounted to This, County fiance preme the courts of Beaver and of the Su- juris- Pennsylvania, actually holding Court of very subject diction over the Clark matter was now trying re-litigate peace justice before a of the court.

On October John Bertera under averred attorney oath the facts above in recited and filed his Supreme Pennsylvania, the Court of Western District (Pittsburgh, my judicial chambers) pe- I where have a prohibition against tition for a writ of Justice of the Hughes Peace Otto who had ordered the of Ber- arrest expressed purpose holding tera and who had his hearing Friday, on the informations on October 20, days away. two necessary integrity

It was to act at if the once, litigation collaterally before this Court was not to be attacked. The situation demanded immediate attention Supreme prestige if Pennsylvania of Court of Certainly justice peace was not to be lowered. of the could re-arrest a defendant whose conviction was appeal. Certainly no lower court could order exe- appeal pending cution of a defendant while his be- high judge and no judge could Court, fore be called a power prevent if not use the he did his office to an ille- gal emphasized It execution. must be that the defend- proсeedings County in the criminal in ant Beaver was person proceedings same involved in in the Supreme Court. It must be reiterated that the same

question namely, con- in was involved both courts, stitutionality of the Act of 1961. Supreme in my located chambers are

Since Court building Pro- of the the office the same which houses thonotary Court, of Western District prohibition petition brought me. for was writ telephoned I I After studied the documentation report Philadelphia and made a Chief Justice I the writ was before me. recommended that what agreed my granted. I said He recommendation. papers I to the Chief Justice that would send I had the The Chief Justice said that since action. papers sign I I And should the order. did so. objection I finds to this.

Justice- somehow Cohen action. demanded immediate believe situation been Otherwise the defendant could have committed being jail con- while case over the his weekend, highest Court the Commonwealth. sidered prospect litigant Supreme Court of a Pennsylvania being jailed justice peace, by a Supreme in the so fantastic his case is Court, while why mat- no and bizarre that wonder Justice Cohen, I raining it. hard it is cannot see ter how Kalamazoo, appre- judge, if he There are times when a has responsibilities act of the of his must ciation office, people perhaps the of the at once save liberties Judge Judge. A their a even lives. principle himself acted on this

Justice Cohen a demanding intervention far less than where was case presented May On there was the 18, 1964, here. Su- (in preme Harrisburg), mo- Middle District a Court, temporary restraining for a order tion on behalf a A. Berkowitz. manner certain Stanton some not petition got apparent the record the to Justice Cohen Pennsylvania. in York, lives Justice who en- Cohen jurisdiction grant at once. He did tertained not a rule single he did not consult а cause, to show member of oppor- respondent give the he Court, did not an tunity bat- to file an answer. Justice without Cohen, ting eye turning page Pro- an or a Civil Rules dipped pen bold his into and, the inkwell a cedure, signature of hand which would have done credit peti- signed John to the the order attached Hancock, not tion. This What did this order command? was simple prohibition justice peace, a who, though ju- may part minor he is still State’s be, diciary. projected authority into a Justice Cohen his wholly department different Execu- the State, Department. tive

Justice Cohen flashed an on member of order Peremp- Secretary Governor’s of Health. Cabinet, torily Secretary he told the not Health he could employees, fire one his A. Berkowitz Stanton possible Secretary above mentioned. It was of Health wished to fire he Berkowitz because believed incompetent operate Henry Berkowitz was R. Hospital, Landis State of which he was institutional manager. nothing business There was in the motion temporary restraining order which excluded possibility presence hospital that Berkowitz’s in the perilous well-being patients. was to the of the sick Jus- imperiously tice Cohen nevertheless ordered the Secre- tary of Health not to fire Berkowitz. prohibition signed may

The writ of I have saved couple days’ jail. from Bertera Justice re- Cohen’s straining depopulated hospital, order could have if contagious Berkowitz was infected with a disease, could not be far so excluded, the record shows. petition restraining simply for the order said that Ber- employee kowitz a civil service and could regulation prevents no but civil service dismissed, restraining taking job from administrator off the irresponsible. who become has someone Justice Cohen determining way of whether had no the dismissal was plague. politics a due to self-genеrated, impetuous,

Justice Cohen his did, Secretary nonconsnlting Health that the state order, present days his case to would be nine hence allowed hospital, against if days, in nine Berkowitz but, badly being could Berkowitz, administered patients. killed all have off its reverting Kalamazoo, what And to rainfall so, introducing into has his Justice Cohen established bearing opinion on the no his a matter which can have constitutionality of the Act of 1961? Justice to be mentioned.

One other matter needs Vacating entitles his De- opinion—Opinion Cohen opinion vacate This incorrect. An cannot is cree. Opinion opinion Vacation of on decree. The can be an But this a' but it vacate decree. cannot Decree, something grammarians determine. for Kalamazoo Vacating Opinion Anyhow, awkwardly in that entitled says 1.: “Rule in footnote No. Justice Decree, Cohen Attorney requires R. the Pa. C. P. notice to the Assembly alleged un- to be General when Act Party. Commonwealth is not constitutional and the that Rule com- The record does not disclose 235 was permit plied unfortunate to It would most with. ruling constitutionality of an Act an adverse Attorney Assembly be made without notice to the General.” contrary of the matter is that,

The fact Justice ipse Attorney the District of Beaver dixit, Cohen’s comply County with the Rules of Civil Procedure. did foray Cohen, before his into if Kalamazoo, And Justice attentively read the record he would have found, had Attorney “Mr. page [District thereof: Masters 20a County] your : At outset, I would Honor, Beaver upon place the record that at the conclusion like hearing Judge the Honorable last asked me to Attorney General’s they office to see if had inform in this and immediately matter, upon interest leaving Attorney General the courtroom I advised the proceedings toas to and to what and as the date and no an- to this date I have received involved, reply Attorney or swer no from the office Gen- eral.” tempest

And Justice Cohen’s a fish bowl or so, teacup hope, a storm a we been stilled. has, Concubking Opinion : Me. Chief Bell Justice September The amended difficult Act of 1961 is interpret parts and so indefinite because it are vague. provides: The Act

“No. 696 “An Act “Amending (P. 872), the act of June L. en penal titled ‘An act to amend revise consolidate, and prohibiting laws* busi Commonwealth,’ certain Sunday. ness on activities (P. 872),

“Section 1. The act of L. June 24, by adding, known Penal as ‘The after Code,’ amended original], section 699.14 [699.13 in a new section read: Selling Dealing

“Section 699.15. or Otherwise Sunday.—Who- Fresh Produce and Meats, Groceries engages selling ever the business of or otherwise dealing produce groceries at retail in fresh meats, upon summary conviction shall, thereof in a proceeding pay for the first be sentenced to offense, exceeding ($100), fine of not one hundred dollars any subsequent or second offense committed (1) year one after conviction for within the first of- pay exceeding be sentenced fine of not fense, two ($200) undergo imprisonment or dollars hundred not thirty (30) exceeding days in default thereof.

* throughout, ours. Italics separate ‍​‌‌​​​​​​​​​​​‌‌​​‌‌​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​‌​‌​​‌‌‌‍consti- offer to shall sell,

“Each sale, separate offense, tute charging section of this

“Informations violations (72) brought seventy-two after hours shall within alleged there- not offense commission after. apply any establish- retail

“This section shall persons retail employing or to ment less than ten groceries produce and establishment fresh meats, where proprietor his of or or members are offered sold persons family employing ten or than immediate less apply where it to retail shall establishment nor consump- prepared premises for human food is on the tion.” in-

I Penal Code, believе this amendment first, cluding exemptions, and two is Constitutional (1) Equal (a) not violate Protection Clause does (b) the Fourteenth the Due Process Clause of (2) re- and does not constitute a law Amendment, specting religion the mean- within the establishment applicable ing (which First Amendment is made (3) Amendment) to and the States Fourteenth or unrea- does amount invidious discrimination sonable. classification. may presumed

An Act is and Constitutional, not be Unconstitutional unless violates declared clearly plainly.* Bailey, and Rubin v. 398 Constitution A. 370 882; 157 2d Allentown School Pa. 271, District, Pa; 480; A. 2d Evans v. West Norriton 87 Town 161, ship, 87 A. 2d 474. 370 Pa. 150, objectives

Although poorly Act is drawn, “selling purposes of this Act, viz., or otherwise and produce dealing gro fresh retail meats, at and prior Sunday,” under were, decisions of ceries Supreme prior decisions and Court of Court “clearly, * palpably expressed Frequently plainly.' and

53 (which compelled follow), the United I am States (1) (2) secular* in nature and such classification justifies reasonable. That and Court its conclusions ground purpose decisions on the and that the reason, objective virtually every Sunday Closing Law** is provide peace a uniform rest, recreation, repose permissible for all with certain or nec citizens, essary exceptions. Maryland, McGowan v. 366 U.S. Guys McGinley, 420; Two v. 366 U.S. 582; Braunfeld v. Bargain City Brown, U.S. 599; Inc. v. U.S.A., Bailey, 407 Pa. Dilworth, 179 A. 2d Rubin v. 439; supra. 398 Pa., principle

We start with the well settled Legislature may validly Constitutionally enact a prohibit worldly law to Sunday, all business exception charity. of necessities or acts Two Guys McGinley, supra v. (pages 366 U.S. 582, 590 et seq.) ; Commonwealth ex rel. v. American Baseball Club Phila., Pa. 138 A. cases cited therein; Commonwealth v. Nesbit, Pa. 398; Johns ton v. Specht Commonwealth, Pa. 102; v. Common 8 wealth, Pa. 312; Commonwealth v. Bauder, 188 Pa.

Superior Ct. affirming 145 A. 2d 424, 915, 14 Pa. &D. C. 2d Superior 571; Commonwealth v. 188 Taber, Pa. Ct. affirming 145 A. 2d 415, 908, 14 Pa. D. & C. 2d 591. penalties because the

Moreover, for violations are repetitive so severe and plaintiff and would cause ir- * origin These decisions admit of the Act was un- doubtedly religious personally and I principal pur- believe that its objective pose primarily principally and is still religious. and This crystal original §699.4 clear from the is of The Penal Code provides (P. 952) “Worldly Employment L. : or Business on Sunday. performs any worldly employment does or —Whoever or day, commonly on the Lord’s whatsoever business called charity only necessity excepted) (works of . . .”. ** “Sunday Blue called Laws”. Sometimes

54 no is adequate and there loss Ms business reparable viola for a of or arrested remedy person accused jurisdic has tion of Act except Equity, Equity Blanc, v. Corp. International tion. Pictures Kingsley Kens v. Adams New 243; 396 Pa. 153 A. 2d 448, 456, 392; Duquesne Pa. A. 2d ington, 357 55 557, 560-561, v. Clair 377 Pa. Light Township, Co. St. Upper City 2d v. Dickson 105 A. Inc. 287; Harris-Walsh, 216 Rubin 420 Pa. A. 2d 329. Boro., See, also, 259, 264, supra; U.S.A., v. Bargain City Bailey, Pa., v. Inc. Dilworth, Pa., supra. Blanc., International Pictures v. Corp. Kingsley Adams v. New from quoting supra, Court, Pa., “ ‘But said 456):

Kensington, Pa., supra, (p. enjoin have such equity jurisdiction does [crimi- it prosecution alleged where not is nal] but and void statute or ordinance is unconstitutional irrepara- the plaintiff enforcement would cause its if ble loss to his either property, by effecting, in- at a grave total of his least suppression business, im- him to the or subjecting terference therewith, pen- oppressive exorbitant and position cumulative, determination of the judicial validity alties pending ground equitable In such legislation. cases, protection property rights, is the jurisdiction mere- proceeding that a criminal is involved is the fact [citing incidental ly cases].’” that a legislature power It hornbook law has the is provided they to establish reasonable classifications, basis and are not reasonable dis unjustly have a The test to whether an Act uncon criminatory. is unjustly because or stitutional discriminatory, class legislation, unconstitutional constitutes is whether classification is reason classification, a real or upon founded genuine and is аnd not able arbitrary or distinction. artificial Chartiers v. Al an 418 Pa. Board, County 520, 211 A. 2d 539-540, legheny Pittsburgh, 257, A. 2d Kurtz v. 346 Pa. 487; 362, and cases cited therein. Opinion Majority

Although not mentioned Dissenting Opinions, Clos or in this ing must be therefore Act is a criminal statute and strictly against Stat construed the Commonwealth. utory May Construction P. L. Act, 28, 1937, §58(1) 418 Pa. ; Commonwealth v. Derstine, A. 2d v. 397 Pa. 266; Glover, Commonwealth language A. I 2d 114. So would limit construed, exemptions (1) interpretation of the Act and the of its throughout to retail the week, establishments which employ persons, Sunday, ten as well as on less than (2) operated family I and small retail and stores, family” would include in the “immediate husband, grandparents, un brothers and wife, children, sisters, nephews (3) and and to retail es cles, aunts, nieces, produce consisting of tablishments where food meats, groceries prepared premises and are human consumption.

I believe the words “retail establishments” exemption exempt third intended to were small stores produce groceries, at which sell retail fresh meats, grocery such as delicatessen and but were not stores, exempt par- intended to restaurants. However, this exemption vague clause ticular is so and indefinite exemption uncertain that this third cannot be Con- stitutionally exception, sustained. With I would Constitutionality Act. sustain Opinion Concurring Mr. Justice Roberts: opinion support Despite laced for family, love for the businessman, reverence small opinion announcing judgment Sabbath, for the totally fails to Court resolve, of this discuss, presented: even important issue most here Does isolate 56 employing permits grocery less stores statute which compels people open Sunday, but which

than ten grocery employing number more than other stores protection equal Con- the clause of violate the close, my opinion, ade- an stitution of the United States? requires magnitude quate question answer to a of this conсlusory line must more than the “a assertion study the cases drawn somewhere.” Furthermore, chal- area here this convinces me that the statute lenged constitutionally is infirm.

I the §1 of shall assume that the raison d’etre for September Act of §4699.15, P. L. 18 P.S. 27, 1961, by majority,1 as “traf stated the the is, eliminate congestion, general fic con unbearable and a noises, wholly purpose dition violative of the intent and Sunday Closing the I Laws.” am aware that also holding Guys Court should follow the v. McG Two inley, (1961), 81 Ct. in which U.S. S. Supreme Court of the United States sustained, protection against equal argument, Au our Act of gust §4699.10 P. L. 18 P.S. which 10, 1959, 660, §1, Sunday products interdicted the sale of certain regardless I size. believe Nevertheless, store, present distinguishable Guys from Two case, under that the statute here attack will not also accom purpose plish very majority advances as for its enactment. reason sole Admittedly, Guys involved in statute Two was carefully usually to include those drafted items sold department large stores whose discount business ac- disrupt peace indeed did tivities normally tranquility associated with our of rest. present Guy’s unlike the statute, the Two However, prohibition all aimed at stores which sold the list- convenience, purposes I shall hereafter For refer to Mr. opinion majority opinion although as it Justice Mttsmanno’s only one Justice. represents views just larger Why, ed items, establishments. might Legislature we did the an “over- ask, resort to per- kill” when it was concerned an evil statute, petrated only by big-volume operators? To theme Supreme thing say, answer clear. It is one Guys pow- say, Court Two did is “within the legislature er of the to have concluded that these busi- department particularly [discount nesses were stores] disrupting atmosphere day the intended because of the great of the volume of dan- motor traffic attracted, ger competitors opening Sunday of their on also large emрloyees.” their number of 81 366 U.S. at 591, quite thing S. Ct. at 1140. But it another use competitive give this rationale as a lever to boost a Legislature to smaller establishments. For the to de- supermarkets, cide that as well as discount dis- stores, rupt legislate atmosphere, the desired is to Guys. within the rationale Two when the stat- Yet, exempts prohibi- grocery ute the corner store from its inject we tion, the element of discrimination economic Sunday closing into our and thus law, create entire- ly Supreme different situation from that faced Guys. in Court Two

By great weight authority, appel other state upon pass late courts that been have called on Sun day closing distinguished laws which between estab products selling lishments the same have found such equal protection laws violative clause. For ex Wood, 177 ample, Terry Carpenter, in Inc. v. Neb. (1964), Supreme 129 N.W. 2d 475 the Nebraska Court unanimously Sunday closing invalidated a law that exempted employing people. stores more than two suggest did not leg court even that That the Nebraska any constitutionally have had pur islature could valid making pose economic in this A discrimination. stat exempting selected coastal in Jersey ute counties New Superior fate before a similar met with Court of Super. 523, v. that Sarner Union 55 N.J. Twp., state. A. 2d 208 (1959).2 protection argu The most voiced frequently equal discrimination has come ment based economic those result response closing exemptions laws whose Sun open certain of stores to permitting types neighboring and sell the same merchandise Although which are shut sell. cannot stores, down, major split there is a a clear authority area, vio of the respective states have held their ity statutes lative clause of Constitution equal protection United States. Two Illinois illustrate cases the test in that the closing gives state whether law a competitive to one аnother. advantage business over Mt. Vernon v. 369 Ill. N.E. City Julian, 2d uncon closing ordinance was declared (1938), appeared exemptions stitutional when it its per inter to remain mitted, grocery open store alia, sell while forcing tobacco close. tobacco, shop to Chevrolet v. Conversely, Evans Humphrey City of 7 Ill. 2d ton, 131 N.E. 2d 70 402, an ordinance (1955), 2 efficacy way holding of The has in no been undermined by Maryland, 420, (1961). v. 366 McGowan U.S. 81 Ct. S. 1101 The uphold Supreme Sunday closing in did Court McGowan law that by exempted recreational the sale certain items those merchants parks Maryland’s operated bathing or amusements in who beaches However, geographic county the Anne Arundel. distinc resort merchandise, all in did not extend to in that statute as made tions provisions clearly Moreover, Anne Arundel rele were Sarner. purpose keeping legislative bathing legitimate beaches vant to aspects Sunday. the recreational operative thus foster purpose legitimate carte Sarner, was obliterated such anything given permission to certain merchants to sell blanche discrimination between different senseless as as well County Jersey. Anne Arundel Whether in New counties resort county whether, fact, in it also Maryland was resort legislative discrimination, as were recipient favorable here, Jersey, need not concern us in exempt New counties ilcGowam,. in never faced hence argued, and never was

59 aimed at certain rather than the stores commodities, automobile dealer withstood attack an themselves, nobody when the court noted that could sell cars Sunday.3 economically

There is one area, however, where Signifi- discriminatory closing be sustained. law will cantly, in heretofore courts all the cases state cited, purpose legislative have noted that no valid could produced by found to sanctiоn the schism economic the statute. But where the facts are such necessary economic discrimination to effectuate itself legitimate lessening a state’s dual interest both Sun- day congestion increasing then the also recreation, may supports law stand. Such a factual framework holding Maryland, v. 366 McGowan U.S. 420, (1961). Maryland 81 S. Ct. 1101 foot- see statute, permitted operators supra, bathing note 2, parks beaches and amusement Coun- Anne Arundel ty operation to sell merchandise incidental to the those establishments.4 the defendant Thus, discount now employing not added after U.S. 2d lar to Giant court ment open inter Broadbent 158 not, that 1964) and that N.C. Me. S.W. 3 at contains The were See also Nation v. Giant stores) ; alia, (holding 450, (1949) 2d 471 drug gas opinion McGowan v. very 81 S. 186 Gibson, Drug, supra) ; 140 S.E. stations could sell City more stores could sell engaged grocery (semble). unconstitutional careful defendants A. 2d (1957). Ct. additional than one 105 at 1103. Hot 2d 352, stores Utah Springs 365-66 point Contra, were State exemption (1965) 53, However, same business person indicates could sell candy, Drug Co., indicted, tires, out (1962) (in 140 v. Karmil v. closing Charles Stores ; Gray, P. 2d Kirk v. other than but but since for Anne bread but bakeries could they candy law whose effect tire stores could 939 215 Ark. 396 P. 2d 431 upholding closing Merchandising Corp., that amendment was Olgiati, stores did (1943) (facts respondent-depart Maryland statute stores could Arundel not Co. v. permitted owner. argue 219 S.W. Tenn. Tucker, stores (Wyo. not) ; simi was, law, not, example, or rubber oil could not sell suntan

store, although Sunday, could items on these identical ducks bathing sustaining Mr. act, this be at beaches. sold again, it would Chief Justice Warren stated: “Here legislature reasonably find these seem that a ‍​‌‌​​​​​​​​​​​‌‌​​‌‌​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​‌​‌​​‌‌‌‍could necessary recreation for the health commodities, Sunday by only those be sold on of its should citizens, are at the locations where the commodities vendors put likely immediately 366 IJ.S. to be to use.” most at 81 S. Ct. at 1106. 427-28, necessity discrimina- minimal

The for this economic pow- plain. Legislature, of tion The has course, pass legislation encouraging of a state’s er the use Sunday. use these recreational facilities on But, public might not if could facilities diminished many purchase, spot, on the commodi- and varied restful. ties needed make the rest indeed minimal at increase traffic Furthermore, best opening sundry from beachfront would result hardly since even the laziest bathers would store, car to from beach blanket to counter. use his travel open if all stores remain On the other could hand, supplies Sunday, congestion the traffic sell these weekday given exceed could well even the the ad- flow, shoppers. of beach to the normal rush of dition traffic majority present case would have us be- economic that the discrimination our statute lieve necessary to decrease traffic is also at while, population. I our not feed fail time, same majority’s imagined concern over the to share citizenry grocery our if small stores starvation could open Sunday* I but not read furthermore, exemption employing present for stores less than ten might people, this statute even decrease traffic! Accordingly, pass unconstitutional. also tlie Court it was did not exemption. discuss, on, or even Although majority if an establishment that, the insists persons during employs the week more than ten open Sunday ten, than of less cannot on a staff At best, this result. the statute does not dictate equal- question. on It is therefore statute is silent (if ly the stat- reasonable not more since reasonable, any sales) Sunday against store that is ute directed per- may open employs Sunday ten on if it less than closing day. nothing I in this sons on that find Thus, opening prevent supermarket large on from law a manager only by Sunday, for that a staffed eight perhaps by man- a butcher, checkout or a cashiers, simply ager point this. and seven cashiers. The is during supermarket the case of a which does even not, employ not it is a traditional sales week, staff, employees whether the number of which determines people shop Sunday, the avail- but rather will there on ability I am controls. of the merchandise itself which necessarily suggesting supermarkets, for a that open certainty, Sunday I staffs. will on with skeletal point merely language re- out that McGowan quires very showing dis- that economic clearest legitimate state interest be- crimination will further may such fore or other countenance this, court, closing Absent such discrimination law. present indistinguishable showing, from case is legislation been struck all those which similar has down.

Ironically, majority if concerned about the is so Sunday, this flow would be best flow traffic exemptions §4699.- if the first two 18 P.S. decreased (I majority share the view were eliminated. that exemption properly limited to restaurants third suggest and thus do not out” that it stores, or “take unconstitutional.) posi- Contrary majority’s to the elimination of I am certain these ex- two tion, emptions not invalidate the entire would section with Sunday, supermarkets of all resulting opening' Act but would instead force them all to close. provides P. May 28, §555, L. 46 P.S. 1019, §55, the court statute be severable unless every shall finds have enacted would not Legislature law without without it. missing language, that, dangers the statute these incomplete. Neither of present are here. the statute without

Clearly complete would be exemptions. merely without the section fact, them, has produce gro- the effect of fresh adding meats, to for ceries the list of items prohibited completely Sunday sales in already set out 18 P.S. §4699.10 in upheld Two to that with- Guys. conclude Moreover, out the exemption stores, stores and family small the Legislature would not have enacted this section is to exalt questionable economic discrimination in present inter- this statute over the state legitimate in est I Sunday’s exaltation that would tranquility—an be to loathe ascribe either to our or my lawmakers brethren.

For all the I that foregoing reasons believe firmly exemptions first two vio- contained this section late the equal protection clause of Fourteenth Amendment to the Constitution of States; the United and without constitutional sanction exemptions these cannot possibly supported stand, the maxims merely by advanced majority. despite con- However, my clusion that two of exemptions are unconstitution- I concur al, majority’s5 result because in view my no establishment sell may groceries on Sunday. Thus, the court below denied properly relief appellant. to

Opinion Mr. Justice Cohen : The majority apparently sanctions the appellant’s to the resort courts to equity restrain a criminal 1, supra. footnote See diligent prosecution. Generally, have been courts our equity preventing the restraint the use of require prosecutions. that there criminal We question regarding the constitution- a substantial ality showing its en- that but also statute, property. damage irreparable forcement would cause present Applying Bertera situation, that rule to the complains though the Act June even Sep- Act of P. L. and the 18 P.S. §4699.4, §699.4, §4699.15make tember L. 18 P.S. P. 27, 1961, 1695, §1, Sunday, engage it a crime to in certain businesses large in his store investment he has a nevertheless, expectation being able to which was made in the operate alleges Sunday. He further store on permits retail establishments the Act of 1361 certain says, (not his) operate Sunday. he Hence, him.1 Act is unconstitutional as wholly If unconstitutional, Act of were subject prosecution under Bertera would then be If Act 1961 is the Act of P. L. 872. 1939, exemption totally is an but the unconstitutional, exemption, in ef- unconstitutional the Act would be allegation exemption, fect without and there is no exemption part Act Bertera’s that the without the pro- Consequently, is he would be unconstitutional. regardless engaging hibited from business exemption constitutionality in the 1961 Act; of the Sunday proposed Closing enforcement of the and the 1 Bargain City U.S.A., Dilworth, 129, Pa. Inc. v. 407 179 Bailey, 271, (1962), v. 398 Pa. A. 2d 882 Rubin 157 A. 2d 439 Sunday closing vio were not (1960), that laws held our Court two deci Commonwealth. These of the lative of the Constitution Guys, Supreme in Two Court decision States United sions Sunday validity of the constitutional infra, demonstrate complaint sufficiently impugned closing not been has laws equity restraint of the intrusion to warrant here filed prosecution. criminal be Laws cannot under circumstances considered any Thus, his business. unconstitutional interference with gen laws Sunday unsound. Our position Bertera’s attack. against have been constitutional erally upheld 1135, Two v. Ct. 366 U.S. S. Guys McGinley, 366 U.S. L. ed 2d v. Brown, 551 (1961), Braunfeld 2d Therefore, 81 Ct. 6 L. ed (1961). S. I maintain take it that Bertera cannot successfully one operate violating that he could without if the or more valid Even constitutionally statutes. exemption invalid, in the of 1961 were contained Act to leave result of it would striking down be prohibit the Act in effect without the exemption, thus no sub from I Bertera event. see ing opening jus stantial here which question constitutionality cir these tifies Under equity assuming jurisdiction. extent cumstances it is unnecessary even consider of harm to Bertera’s business.

I below and would vacate the decree of the court instruc- remand this to that court proceeding tions complaint jurisdiction. to dismiss the for want of

I aspect litiga- is another of this regret there tion which comment. our Court had requires While petition under for a writ consideration, case behalf; without prohibition was filed on Bertera’s notice to or answer to be re- parties sought order following entered: strained, presen- this 18th “Now, October, 1967, upon .. tation of the Petition Writ of Prohibi- foregoing ordered and directed such Writ is- tion, (a) Hughes sued and that: Justice Peace Otto from prohibited and on enjoined holding hearing filed with him by the informations Woodrow L. Clark Bertera with violating John charging 1961 Statute Blue Sunday Laws, Section 699.15 added Sep- . P. 1 L. 1695. Sec. 1961, (18 tember 27, P.S. Sec. 4699.- constitutionality while the said 15) statute.is under

65 case, and challenge pending County this Beaver Test Justice of other (b) the Peace Otto and all Hughes Justices in Beaver Committing Peace County, and Magistrates persons entitled to act in the capacity Committing Magistrates Beaver who be- County, ing similarly and constitute whose situated, class, numbers make impracticable to name enjoined are prohibited and from any information from taking persons whatsoever for alleged offenses under the Statute of the Blue Laws Section 699.15 added September P. L. 1695. 27, 1961, Sec. P.S. Sec. (18 4699.15) while the of said statute is constitutionality under challenge this Beaver pending County test case.

By the : Court

Musmanno Justice the Supreme Court Pennsylvania-” of this order entry was not the action of the of our Court majority but was the unilateral act of one member. No individual member our Court has power issue writ of just as no prohibition, individual member our Court power has the to quash grant a appeal, new affirm trial, or reverse a lower court’s judgment.

In Schlesinger Petition, Pa. 81 A. 476, 2d 316 Chief Justice (1951), reviewing proceed- Drew, when a ings petition followed prohibition writ of stated 479: “On filed, page May 29, 1951, petitioner filed this [Schlesinger] petition for a writ of on the same we, prohibition, day, granted a rule show Judge cause, returnable June Musmanno all stayed proceedings until 1951, further order Court.” of this Grand County Dauphin Jury Investigation Pro- 332 Pa. (Ho. 2), A.

ceedings 2d 802 (1938), pertaining to the issuance proceedings of a writ of prohibition as follows: “The chairman were described of the Committee then filed peti- House a Investigating tion in of Supreme prohibition. the Court for writ A rule Supreme to causе was granted by show the dis- Court, proceedings stayed pending were position A of the to the filed ease. return rule was .” by presiding . . judge. both cited published cases and every case

our pro- the courts have followed the correct Reports, upon petition that of a for writ cedure; is, filing of the court on the prohibition, grants a rule party sought to be thus restrained, giving party op- to portunity answer. The Court may may not stay disposition or proceedings pending further order. Af- ter the prohibited files his party sought return to the rule, Court, member single thereof, either without or after oral argument determines whether the writ should issue. This is the only proper procedure constitutional upon application for a writ prohibition.2 procedure 309, Wilbar, in tlie The case Berkowitz v. 410 Pa. (1965), may 206 A. 2d 280 be summarized as follows: January 1958, position Henry 9, On Berkowitz’s at R. Hospital Landis as one the ‘(cid:127)classi- State was established within 1963, category. 1, On November Berkowitz received fied service” Department Health, Director of Personnel notice from the Commonwealth, that his at of the Governor the instance place category changed “un- him in the been status had 24, 1964, April Berkowitz was noti- On civil service.” classified hospital employment termi- was to his that fied letter May 12, 1964. nate appealed Commission con- May 1, to the Berkowitz On illegal. change service” was “unclassified civil tending his he “unclassified since determined

The Commission hearing. right filed a Berkowitz then to a no had he service” May 12, 1964, Court equity Commonwealth in the complaint in Penn- Secretary the Commonwealth of Health of against Secretary injunction preliminary to restrain the seeking a sylvania hospital. position with the his dismissing from him from Dissenting Opinion by Mr. Justice O’Brien: I cannot- subscribe to the conclusion reached majority this court the amendment Act June P. L. 872 18 P.S. §699.4, §4699.4, enacted the by General as the Act of Assembly 1961, September P. L. 27, 1695 18'P.S. is §1, con- §4699.15, stitutional. In reaching my I need conclusion, heed the admonition of the majority and “com- apply mon sense the of construing words to rules according of grammar and according to tlieir common and ap- proved usage”. the

Clearly, mere fact that all of judges the the highest appellate court of the Commonwealth are un- able to on agree the meaning the legislative enact- even ment, with the aid of the Statutory Construction Act and all experience their in the interpretation statutes, does not indicate that the statute is uncon- stitutional for vagueness. The fact of this disagree- injunction Court denied the appeal and Berkowitz took an to our Court, May 18, 1964, restraining Secretary On X an issued order the dismissing position Health from Berkowitz from his and from interfering denying any rights guaranteed with or him him under the Civil Service Act and that such order continue until should May argument 26, Every on the on restraint 1964. member of our by May was letter Court notified on action 18th as to the taken staying in this matter. The I order issued dismissal Berkowitz’s was dissolved. remedy by appeal Court held that Berkowitz’s our On seeking way an action of mandamus not an action injunction. preliminary Berkowitz instituted an action man grant compel him to the Civil Service Commission to damus directing an hearing. issued order Court Commonwealth The complied hearing. grant The Commission to Commission improper be and ordered Berkowitz re-elassification found appeal Court, .January pay. to our After back reinstated opinion affirming the Commis down hnnded our Court Berkowitz, 424 Pa. A. 2d 538 v. Wilbar order. sion’s (1967). the intendment that indicate

ment does, however, majority crystal-clear would as so statute assuming, Even however, believe. have one interpretation language no of the admits of statute majority I con- has reached, other that which than upon not based it is since void, clude that the statute any or rational classification. rеasonable nothing attempts other

The do statute involves gro- produce prohibit of fresh meats, than sale nothing Sunday. point, there is At ceries right any gained from further discussion legislate fashion. in such Commonwealth pointed Supreme properly out United States Court, McGinley, majority, Guys U.S. v. in Two speculations. (1961), such has foreclosed Supreme the United States Court of case, power clearly of the state held it is within par- items were to that of certain conclude retailers ticularly disrupting atmosphere the the intended op- in their disturbances because of the inherent pass- I if I not note be did erations. would remiss upon any religious ing that this decision was based not right upon wholly solely grounds, State’s but and the citizenry. well-being legislate for to the economic of its any unnecessary it to comments I find make therefore opinion’s preoccupation majority to relative the religious history Commonwealth and Nation. the the my the to are, Such discussions irrelevant view, of the issues at hand. determination says under attack en- The Act that: “Whoever selling dealing gages in the business or otherwise produce groceries in fresh meats, at retail and on guilty punished of a violation [be shall and according Statute]. to the This section shall not than, any employing apply retail establishment less any persons or to establishment retail where fresh ten groceries produce and are offered or sold the meats, family proprietor em- or or members his immediate apply persons ploying shall it less than nor ten prepared any on is retail establishment where food readily premises consumption.” I can the for human accept majority that a reasonable conclusion of the em- establishments distinction can be made between people employing ploying more. or nine ten those aptly majority, As stated must be line requires stretching of the it drawn no somewhere, Guys rationale of Two the conclusion reach type justifies sought to be disturbances avoided arguable classification. It is even where proprietor family or a is member of his immediate engaged operation, exception may made. be protection of

This would sole basis family enterprises against competition of small, huge, competing enterprises. no There is, however, justification excepting reasonable for a retail estab- prepared premises lishment food for where is on the justification consumption, human nor is there valid permitting operate an establishment with an employees only proprietor unlimited number of if or family engaged a member of his immediate produce groceries. sale of fresh meat, just apparent From Iwhat have said, I agree majority do not with what the has held the stat- example, although ute to For mean. the statute is ambiguous totally as to whether the “less than ten” exception employees means than any day less ten Sunday, majority week is certain interpretation that it means the former. If one had I to be would chosen, think logi- the latter to be more specifically cal. the Act Since is Sunday, directed to persons employed any the number at retail store any day of the week other Sunday than would seem interpretation to an irrelevant of the statute. The closing always laws have tried to secure a If recreation. respite and of rest from work, employs during employees week a store with 1,000 major purpose law Sunday, then a nine on respite securing from work that fulfilled has been interpretation Regardless employees. of which for 991 point maintainable. logical, that either is is is more interpreted; being which is criminal statute This is a guess its require potentially at affected those process. meaning due fundamental notions violates interpretation majority’s agree I Nor can namely, exception “This of the second of the Act, apply any . . . not retail establishment section shall produce groceries offered are and fresh meats, where proprietor by immediate of his or members or sold persons. employing family The . . or than ten less amazing majority conclusion that such has come to the any employ enterprise may than more event, not, impossible persons. to reach this for me It nine completely except ignoring by the rules conclusion approved usage grammar of the the common and apply says language. English it not The Act shall are the items covered where to a retail establishment people establishments or certain or to offered sold persons. language employing than ten less length be seen out at can above, is set Statute Assembly simple the General examination provisions except from the the Act two fit to saw separate opera- types grocery and distinct retail employ persons fewer than ten tions: those which proprietor and those where members of his family engaged selling. are The Act immediate does exception say for that an is made an establishment proprietor family or a member of his en- where selling gages and fewer than ten members are em- says ployed by Act establishment; that an ex- ception retail made establishment which people, separate employs wholly ten fewer than exception where for retail establishment is made family proprietor is the or a of his immediate member separate engaged selling. If not are two these exceptions, no need there distinct classes was disjunctive Legislature not once, “or” the to use the employing but off to set those estаblishments twice, people. fewer than ten majority says “or”

The is used that the fact that employing fewer than twice set off establishments people blatantly “or ten malíes the second . . .” re- perform judicial alchemy dundant to trans- unless we redundancy “or” undeniable; form into “and”. The merely emphasizes draftsmanship in the defects Certainly majority’s reading this “or” statute. redundancy. “and” as not does remove as the If, majority operated family groceries concludes, retail employees, are restricted to nine then there is no need exception for the second The statute. first ex- ception allowing operation of establishments em- ploying people fewer than ten would cover field, subsequent language and all of the of the statute is surplusage. family employ mere run The could store help, persons long working, so as fewer than ten were exception. reading under the first Thus, “or” as “and” perversion English not language, is a of but Assembly one which ascribes to the General inclusion language completely in a statute of which is unneces- sary.1 very excep-

The best can be said for the second ambiguous. majority tion is that it is states, alchemy the tortuous we have referred to above, that exception employment forbids of more than majority cited the cases “or” where was read “and”, legislative intent clear. was The transformations did just remaining result statutes as confused as before the they scope change Nor did made. broaden of a criminal statute. to conclude reasonable just It persons.

nine em- could an establishment wording, that under pro- provided number of employees, ploy any engaged are family immediate or members his prietor this where that even in it is to conclude as selling, It is to nine. are limited employees condition exists, word- under this to conclude as reasonablе just number employ any could an establishment ing, proprietor the were they so as only long but persons, not at all It family. or of his immediate members many of the Act of the which from the language clear intended. or advanced advanceable interpretations adopt fit to seen the has majority What is clear is that interpretations possible most restrictive of all the the permits. Act one the language as the only view as takes a restrictive majority Similarly, asserting “immediate family”, constitutes what parents, and children. Should husband, wife, it to be liv nephews or perhaps or nieces grandchildren, No be included? proprietor in household of ing but “immediate family”, case has defined Pennsylvania indicate that it has a broader from other states those it One that ascribed to by majority. than meaning includes a has held that mother-in-law ease Corp. v. father-in-law, Management Grant-Morris 2d 2d 7 Misc. N.Y.S. while an Weaver, indicated that other has even daughter-in-law, husband’s may with her well be in living parents, the term. N. & Cincinnatti, C. Ry. cluded within Co. 2d 556. That case 293 S.W. cited Ballen v. Peluso, defining Dictionary, immediate family tine’s Law household of the same who are members bound “those relationship”. The questions ‍​‌‌​​​​​​​​​​​‌‌​​‌‌​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​‌​‌​​‌‌‌‍ties by raised together only can answered term by the vague legis should be fatal ambiguity The a criminal lature. statute. exception, interpretation “where the third its consump- prepared premises for human

food is on the assuming repeats majority its error tion”, plausible interpretation one. Such its is the says consumption”, surely not the case. “For human majority, clearly immediate or less, means “more ambiguity consumption”. Disregarding human majority’s I what ask own use “more or less”, possible judicial supply “im- the word omniscience can legislature mediate”? use that word knew how to they referring they when wanted; did so fact, exception. Although family” “immediate in the second appellant prеmises” question “on raises whether “prepared” “consumption”, modifies I am inclined agree majority placement that the modifier indicates no means the former. But I can accept majority’s “slicing, cutting, assertion that dressing, trimming, cleaning, packaging not ... is preparation in the sense the statute.” accept interpreta- majority’s I cannot

Moreover, prepared tion that the food for sale must be on the premises. says The statute that the section shall not apply pre- “to retail establishment where food is pared premises consumption” (Em- on the for human phasis added). ap- Inasmuch as the statute its title plies grocery-type establishments—“Selling or other- dealing produce groceries wise fresh meats, Sunday.” supermarket it would seem that a which bar- operated becued chickens a delicatessen counter employ persons could an unlimited number of while its counterpart without the added feature would be limited supportable to nine. This a classification which is grounds I on no can conceive. hardly Yet it is a proper to avoid answer the irrational classification interpretation giving the statute its words will not yield. I

I conclude that the Act is void for vagueness below. would therefore reverse the decree of the court other view of the taken some approach that would opinions indicating ease result if exceptions, vague- obtain were held be void I I agree would like to matter. ness, comment exceptions with the that the elimination of the majority would inex- invalidate the entire section. are so They tied to tricably the remainder of the statute statute incomplete without them. this does However, re- mean that all necessarily supermarkets could main open on It Sunday. means that validity their opening provisions must be tested under the general Sunday P. L. closing law June 24, 1939, 18 P.S. §699.4, §4699.4.

I dissent.

Pennsylvania Company, Gas and Water

Appellant, Pennsylvania Turnpike v.

Commission.

Case Details

Case Name: Bertera's Hopewell Foodland, Inc. v. Masters

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 28, 1967

Citation: 236 A.2d 197

Docket Number: Appeal, 258

Court Abbreviation: Pa.