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NATE GOODMAN AND VOSS & GOODMAN v. R. GORDON KENNEDY (10/30/74)

decided: October 30, 1974.

NATE GOODMAN AND VOSS & GOODMAN, INC., DOING BUSINESS AS PAUL BUNYAN, APPELLANTS,
v.
R. GORDON KENNEDY, DISTRICT ATTORNEY OF THE COUNTY OF ERIE, PENNSYLVANIA, ET AL.



COUNSEL

John M. McLaughlin, Knox, Graham, Pearson, McLaughlin & Sennett, Inc., Erie, for appellants.

Daniel W. Cooper, Pittsburgh, Charles D. Agresti, Asst. Dist. Atty., Lawrence L. Kinter, Erie, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., files a concurring opinion in which Jones, C. J., joins. Nix, J., files a concurring and dissenting opinion in which Pomeroy, J., joins. O'Brien, J., files a dissenting opinion.

Author: Manderino

[ 459 Pa. Page 317]

OPINION

The appellants, Nate Goodman and Voss & Goodman, Inc., filed a complaint in equity seeking to enjoin the enforcement

[ 459 Pa. Page 318]

    of the criminal statute proscribing the Sunday sales of fresh meats, produce and groceries. Act of June 24, 1939, P.L. 872, § 699.15, as amended, 18 P.S. § 4699.15 (recodified as 18 Pa. S. § 7364). Following a hearing, relief was denied and this appeal followed.

The appellant, Nate Goodman, is the sole owner of all of the stock of the corporate appellant, Voss & Goodman, Inc., which operates a grocery store in Erie, Pennsylvania, under the name of Paul Bunyan. The Paul Bunyan store, which has always employed ten or more persons, carries a standard line of grocery store items. In addition, the store has a delicatessen department which sells prepared foods such as salads, sandwiches, baked beans, chicken and spareribs. In 1972, the Paul Bunyan store and twenty-eight other stores in Erie County were subjected to arrests for Sunday sales.

The present action was filed on December 6, 1972, in an attempt to gain relief from multiple arrests. Since the filing of the action, the Act challenged has been repealed and reenacted. 18 Pa. S. § 7364. The appellants' cause of action, however, is not rendered moot by the reenactment. Since the wording of the new act is identical to the old Act, with one change which we shall later discuss, the appellants' challenge is properly before us. The Statutory Construction Act of 1972, 1 Pa. S. § 1962, states "[w]henever a statute is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing statute, the earlier statute shall be construed as continued in active operation. All rights and liabilities incurred under such earlier statute are preserved and may be enforced."

The new grocery act, with certain exceptions, prohibits any person from engaging in the business of selling or otherwise dealing at retail in fresh meats, produce and groceries on Sunday. 18 Pa. S. § 7364. There are three

[ 459 Pa. Page 319]

    exceptions in the law. The law states that the prohibition does not apply to any retail establishment:

(1) employing less than ten persons;

(2) where fresh meats, produce and groceries are offered so [sic] sold by the proprietor or members of his immediate family; or

(3) where food is prepared on the premises for human consumption.

(The word or appeared between the word offered and the word sold in the repealed statute. The word so in the reenacted statute is an obvious misprint.)

In Bertera's Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 236 A.2d 197 (1967), this Court held that the grocery act and the exceptions to the act did not violate either the federal or the state constitutions. Appellants raise no issue concerning the constitutionality of the general prohibition in the act. The issues raised concern the exceptions and the alleged discriminatory enforcement of the act.

I.

The appellants urge that we consider our decision in Bertera that the first exception is constitutionally valid. They contend that that exception denies them the equal protection of the laws in violation of their Fourteenth Amendment rights, and constitutes a special law in violation of the Pennsylvania Constitution. See Pa. Const. art. 3, § 7, § 32(7), P.S. Both of these arguments were considered and rejected in Bertera. We must again reject these arguments.

Bertera held that the words "employing less than ten persons" did not mean "employing less than ten persons" on Sunday, but meant "employing less than ten persons" at any time. The Statutory Construction Act of 1972 gives us the following guide in Section 1922:

"In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions,

[ 459 Pa. Page 320]

    among others, may be used: . . . [t]hat when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed on such language."

1 Pa. S. § 1922.

Since the legislature, after the Bertera decision, reenacted the first exception using words identical to those in the act at the time of the Bertera decision, we should presume that the legislature intended the first exception to mean what we said it meant in Bertera.

The legislative decision to except retail establishments "employing less than ten persons" at any time was within the legislature's constitutional discretion. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) pointed out that enforcement considerations are relevant in determining the reasonableness of legislative classifications. The test chosen by the legislature avoids some problems of enforcement of a Sunday closing law. The test chosen would permit enforcement officers to periodically obtain information as to the number of employees employed by a given retail establishment, and to maintain a list of those establishments permitted to open under the exception. To determine if the statute was being obeyed, stores open on Sunday could simply be checked against this list. If all retail grocery establishments were permitted to remain open on Sunday so long as no more than nine employees were working on any given Sunday, no one could see an open store and know whether the law was being violated. Enforcing the statute would require a ...


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