Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Richard S. Sterlace, No. SA 6 of 1975.
Eugene F. Scanlon, Jr., with him Dickie, McCamey & Chilcote, for appellant.
James W. Dunn, Jr., for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
On January 2, 1975, a district magistrate found Richard S. Sterlace guilty of violating Ordinance No. 662 which restricts the manner of distributing advertising material to residents of McCandless Township (Township) in Allegheny County. On appeal and after a hearing de novo before the Court of Common Pleas of Allegheny County, Sterlace was again found guilty and was fined thirty dollars ($30.00) in accordance with the penalty provisions of the said ordinance. This appeal followed.
Ordinance No. 662 was enacted by the Township on October 8, 1974, as an apparent attempt to curtail the regular distribution within the Township of commercial advertising material which various retail merchants of Allegheny County contracted with Sterlace to deliver to County residents. These distributions consisted of sample products, coupons, and other advertising materials, all contained in six by twelve-inch plastic bags which could be looped onto doorknobs or fastened to hooks attached to mail box posts. When Sterlace made his first distribution to each resident, he included a letter in the package, which explained the distribution service and advised that a resident who did not desire the service or who wished to have it discontinued for a limited period could so inform Sterlace by mail or phone at an address and telephone number listed on the letter.*fn1 The Township Commissioners, believing that this matter of distribution was unsightly, constituted an invasion of privacy, and increased the possibility of vandalism or burglary, then enacted Ordinance No. 662 which, in its pertinent parts provides as follows:
"Section 1. It shall be unlawful for any person, firm or corporation to distribute advertising material at a residence within the Township (other than at
the home of the person, firm or corporation distributing the same) by placing such material at the residence, on the property or on the residential mail box of the person owning or occupying the residence, unless the person, firm or corporation distributing such advertising material does so based upon the affirmative request or consent of the person occupying the residence. The foregoing provision shall not apply to the distribution of advertising material through the United States mail service.
"Section 2. Any violation of this Ordinance shall be considered a summary offense and upon conviction before a district Magistrate the violater shall be subject to a fine not exceeding $300.00. Each unlawful distribution to a residence shall be considered as a separate offense." (Emphasis added.)
The ordinance clearly requires the "affirmative" consent of an occupant prior to the distribution of materials, and Sterlace argues that such consent is implied by the occupant's accepting the materials after the notice herein given. The meaning of the term "affirmative," however, appears obvious to us and we believe that the ordinance was violated when Sterlace failed to obtain the express consent of any occupant prior to making a distribution to that occupant's residence.
Sterlace also argues, however, that the ordinance violates fundamental constitutional principles, and this challenge, of ...