Appeal from order of Court of Common Pleas of Clearfield County, Sept. T., 1969, No. 142, in case of Commonwealth v. Joseph Patrick Leyo.
David L. Baird, with him Baird, McCamley & Miller, for appellant.
John K. Reilly, Jr., District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
[ 217 Pa. Super. Page 153]
Dissenting Opinion by Hoffman, J.:
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 bakes 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
[ 217 Pa. Super. Page 154]
or members of his immediate family or employing less than ten persons nor shall it apply to any retail establishment where food is prepared on the premises for human consumption. Act of June 24, 1939, P.L. 872, § 699.15, added September 27, 1961, P.L. 1965, § 1, 18 P.S. 4699-15 [Emphasis added.] Appellant contended below that since food is prepared on the premises for sale through the delicatessen and bakery departments, his supermarket is exempt as a "retail establishment where food is ...