217 Pa. Super. 152 | Pa. Super. Ct. | 1970
Dissenting Opinion
Dissenting Opinion by
Appellant operates a small supermarket employing approximately nineteen employees. In addition to selling fresh meats, produce and groceries, appellant also operates a bake shop on the premises and balees bread, rolls, cakes and pastries. There is also a delicatessen department selling food which is cooked and prepared on the premises and is ready for immediate consumption. No portion of the premises is used as a restaurant or food counter, and no provision is made for consuming food on the premises.
An information was filed against appellant charging him with violation of The Penal Code because he sold fresh meats, produce and groceries on Sunday. The statute he was charged with violating provides, in pertinent part: “Whoever engages in the business of selling or otherwise dealing at retail in fresh meats, produce and groceries on Sunday [is guilty of a summary offense]. This section shall not apply to any retail establishment employing less than ten persons or to any retail establishment where fresh meats, produce and groceries are offered or sold by the proprietor
The Commonwealth concedes that had appellant merely operated his bakery and delicatessen departments on Sunday, he would not have been guilty of the offense. However, it argues that when in addition to those two departments, appellant opened his entire establishment to the public for retail sales on Sunday, he violated the Act. Otherwise stated, the Commonwealth argues that the operation of the bakery and delicatessen departments did not exempt the entire establishment under the exemption noted above.
This statute, being penal in nature, must, of course, be strictly construed. Statutory Construction Act, Art. IY, §50, Act of May 28, 1937, P.L. 1019, 46 P.S. §557; The Penal Code, §1104, Act of June 24, 1939, P.L. 872, 18 P.S. §5104. In my opinion, a plain reading of the words of the statute, even without a strict construction of the statute, supports the reading urged upon us by appellant.
It should be noted that the Act is directed against the selling of fresh meats, produce and groceries on Sunday. The applicable exemption in this case does not merely permit persons to sell food which is prepared on the premises for human consumption. Rather it exempts from prosecution any establishment where food is prepared on the premises, Moreover, the Act does
This was the conclusion reached by President Judge Satterthwaite of Bucks County in Commonwealth v. McChesney, 41 Pa. D. & C. 2d 378, 384-385 (1966), where he stated: “[I]t should be . . . noted that the statutory exception relates to the ‘retail establishment’ wherein food is prepared, without limit or qualification (in this case, therefore, it would embrace the Shop-Bite Market as a whole), so that if the ‘establishment’ qualifies for exclusion, the prohibition of this statute . . . has no application whatsoever. Accordingly, because of the manner in which the legislature has chosen to phrase this type of Sunday sales restriction or regulation, a qualifying establishment may, nevertheless, sell fresh meat, produce and groceries on that day; generally, it is not confined merely to those items of food prepared on the premises for human consumption.” [Original emphasis.]
The Commonwealth relies most heavily on the opinion of the Supreme Court of Pennsylvania in Bertera’s Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 236 A. 2d 197 (1967), appeal dismissed, 390 U.S. 597, 88 S. Ct. 1261 (1968). Bertera, however, dealt only with the constitutionality of the statute. While there are dieta in various of the opinions indicating the interpre
Lead Opinion
Opinion
Order affirmed.