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CITY ERIE v. NORTHWESTERN PENNSYLVANIA FOOD COUNCIL (07/22/74)

decided: July 22, 1974.

CITY OF ERIE, APPELLANT,
v.
NORTHWESTERN PENNSYLVANIA FOOD COUNCIL, APPELLEE



Appeal from the Order of the Court of Common Pleas of Erie County in case of Northwestern Pennsylvania Food Council v. The City of Erie, No. 36 A 1972.

COUNSEL

Angelo P. Arduini, Assistant City Solicitor, for appellant.

William C. Sennett, with him Paul F. Curry, and Knox, Graham, Pearson, McLaughlin & Sennett, Inc., for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 14 Pa. Commw. Page 357]

The City of Erie enacted Ordinance No. 22-1972 which attempts to regulate the packaging and labeling of meats offered for sale at retail within the City of Erie. The provisions of Section 2 of this ordinance makes it unlawful to sell or offer for sale at retail any sealed, prepackaged, unprocessed or untreated freshcut meat or frozen meat, unless the packaging thereof is colorless and transparent on all sides, or unless at least 70% of the packaging is transparent to expose the bottom of the meat while the top is completely visible exclusive of labeling, which shall not occupy more than 10% of one side of the package. "Chopped meat" and "ground meat" are specifically excluded by the provisions of the ordinance.

The Northwestern Pennsylvania Food Council, having as members locally owned food markets and four major food chain stores operating in the City of Erie, commenced an action in equity seeking an injunction against the City of Erie to prevent it from enforcing the ordinance here in question and to have the ordinance declared unlawful. After a hearing, the Court of Common Pleas of Erie County, by order of December 6, 1972, granted to the plaintiff the relief it sought. This appeal followed the entry of that order, and we affirm.

We are confronted with the question of whether the City of Erie's Ordinance No. 22-1972 is in such conflict with the laws of the Commonwealth of Pennsylvania as to be invalid.

[ 14 Pa. Commw. Page 358]

The basic statement of Pennsylvania preemption law is found in Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616 (1951). This case enunciated the appropriate criteria for determining whether the Commonwealth, to the exclusion of its political subdivisions, has preempted by legislation the regulation of certain activities: "There are statutes which expressly provide that nothing contained therein should be construed as prohibiting municipalities from adopting appropriate ordinances, not inconsistent with the provisions of the act or the rules and regulations adopted thereunder, as might be deemed necessary to promote the purpose of the legislation. On the other hand there are statutes which expressly provide that municipal legislation in regard to the subject covered by the State act is forbidden. Then there is a third class of statutes which, regulating some industry or occupation, are silent as to whether municipalities are or are not permitted to enact supplementary legislation or to impinge in any manner upon the field entered upon by the State; in such cases the question whether municipal action is permissible must be determined by an analysis of the provisions of the act itself in order to ascertain the probable intention of the legislature in that regard. It is of course self-evident that a municipal ordinance cannot be sustained to the extent that it is contradictory to, or inconsistent with, a state statute: Bussone v. Blachford, 164 Pa. Superior Ct. 545, 67 A.2d 587. But, generally speaking, 'it has long been the established general rule, in determining whether a conflict exists between a general and local law, that where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate

[ 14 Pa. Commw. Page 359]

    to the necessities of the particular locality and which are not in themselves unreasonable.' Natural Milk Producers Association v. City and County of San Francisco, 20 Cal. 2d 101, 109, 124 P. 2d 25, 29. Thus it has been held in our own Commonwealth that municipalities in the exercise of the police power may regulate certain occupations by imposing restrictions which are in addition to, and not in conflict with, statutory regulations [citing authorities]. But if the general tenor of the statute indicates an intention on the part of the legislature that it should not be supplemented by municipal bodies, that intention must be given effect and the attempted local legislation held invalid [citing authorities]." 366 Pa. at 380-81, 77 A.2d at 619-20 (footnotes omitted).

Another expression of these principles is that of Justice Musmanno in the vivid, stylistic language of Department of Licenses and Inspections v. Weber, 394 Pa. 466, 468-69, 147 A.2d 326, 327 (1959):*fn1 "Of course, it is obvious that where a statute specifically declares it has planted the flag of preemption in a field, all ordinances on the subject die away as if they did not exist. It is also apparent that, even if the statute is silent on supersession, but proclaims a course of regulation and control which brooks no municipal intervention, all ordinances touching the topic of exclusive control fade away into the limbo of "innocuous ...


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