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KROGER CO. v. O'HARA TOWNSHIP ET AL. (11/16/76)

decided: November 16, 1976.

THE KROGER CO., A CORPORATION, AND THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., A CORPORATION, APPELLANTS,
v.
O'HARA TOWNSHIP ET AL., POLITICAL SUBDIVISIONS, APPELLEES



COUNSEL

Paul A. Manion, Gerald C. Paris, Reed, Smith, Shaw & McClay, Pittsburgh, for appellants.

William W. Milnes, Brandt, McManus, Brandt & Malone, Philip Huss, Jr., James W. Dunn, Jr., Pittsburgh, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and dissenting opinion in which Hoffman and Cercone, JJ., join.

Author: Watkins

[ 243 Pa. Super. Page 481]

This is an appeal from a final decree in equity by the Court of Common Pleas of Allegheny County dismissing the plaintiffs-appellants' complaint seeking an injunction to prohibit the appellee townships from enforcing the Act of December 6, 1972, P.L. 1482, No. 334, effective June 6, 1973, 18 Pa.C.S.A. § 7364, hereinafter referred to as "Sunday Trading Laws".

18 Pa.C.S.A. § 7364 provides that a person who engages in the business of selling or dealing in retail in fresh meats, produce and groceries on a Sunday is guilty of a summary offense. The appellant stores claim that the act is being enforced against them in an unconstitutionally discriminatory manner. The appellants are corporations which operate supermarkets in the townships in question. The appellants were prosecuted in McCandless Township for being open for business on Sundays in September of 1974. They were also prosecuted under the same act in O'Hara Township and although not prosecuted in Ross Township, the appellants were warned of the intent of the Township to enforce the act and because of the warning have not opened since that time.

Appellants argue that in all three townships the act has been enforced against them in a discriminatory manner because other retail stores have remained open on Sundays and have not been prosecuted. Appellants also ask this court to declare the Sunday Trading Laws unconstitutional as a violation of the equal protection and

[ 243 Pa. Super. Page 482]

    due process clauses of the Fourteenth Amendment to the Constitution of the United States.

In Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961), the United States Supreme Court upheld this state's right to pass and enforce so-called "Sunday Trading Laws". Therefore, it is well established that such laws are constitutional. See 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, 20 L.Ed.2d 158, where a full discussion of the constitutionality of the Sunday Trading Laws is set forth in the majority opinion by the late Mr. Justice Musmanno. We cannot accept the contention that the act violates constitutional safeguards.

Appellants' second contention to the effect that the act has been enforced against the appellants in an impermissible discriminatory manner is also without merit.

In order to establish an allegation of discriminatory enforcement it is necessary to prove that such enforcement contains an element of intentional or purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943). Proof of mere laxity of enforcement by the authorities is not sufficient to establish an impermissible exercise of discrimination in the enforcement of the law. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

Common sense dictates that if proof of non-enforcement against others was a valid defense for the violation of criminal statutes then each and every criminal proceeding would be bogged down in a plethora of defense evidence citing others who escaped prosecution under a particular criminal statute. Therefore, in order to establish their claim, the appellants are required to prove

[ 243 Pa. Super. Page 483]

    an intentional exercise of discrimination in enforcement by the township authorities and not merely that they were prosecuted while others escaped the wrath of the law.

As the concurring and dissenting opinion of Judge Spaeth points out, in the case of O'Hara Township, prosecutions were brought against both supermarkets for Sunday Trading Law violations. However, one prosecution was brought against one of the other two retail establishments operating on Sunday and the other was threatened with prosecution. It is obvious from these facts that no pattern of discriminatory enforcement was established in the case of O'Hara Township.

In the case of McCandless Township the appellant and other supermarkets were prosecuted. However, the township police and the township solicitor threatened eleven other retail stores with prosecution. Thus the appellants again failed to establish any pattern of discriminatory enforcement.

In the case of Ross Township the record shows that no one was prosecuted under the Sunday Trading Act. However, all eight of the supermarkets doing business on Sundays were threatened with prosecution while approximately thirty-five other retail businesses operating on various Sundays were not so threatened. From these facts alone the appellants contend that Ross Township is guilty of discriminatory enforcement of the act. Such a conclusion would be premature indeed as the prosecutions may never take place and there is no proof that the retail stores may not be warned and prosecuted. Also, it was not established how many, if any, of the other retail businesses might be excluded from the Sunday Trading Laws by the various exemptions contained in the act nor whether any selectivity in enforcement was unjustified.

[ 243 Pa. Super. Page 48418]

Pa.C.S.A. § 7364(c) provides for exemptions for retail establishments:

(1) [that] employing less than ten persons;

(2) where fresh meat, produce and groceries are sold by the proprietor or members of his immediate family; or

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

These exceptions have withstood attacks as to their constitutionality. Bertera's Hopewell Foodland, Inc. v. Masters, supra. Thus in order to establish their case appellants would have to prove that the other retail stores did not fall into any of the classes of exceptions. The appellants also failed to prove that a conscious policy of enforcement was not justified in this case since such a policy does not violate constitutional standards unless it is based on an arbitrary and unlawful standard. See Oyler v. Boles, supra.

The concurring and dissenting opinion in this case recognizes this problem but in effect shifts the burden of justifying such a policy to the appellees. This we feel is incorrect because it is the appellants who brought this action and the burden of proving unjustifiable enforcement should remain with the ones who alleged it. Given the wide latitude traditionally given to prosecutors, 12 P.L.E. 198, we are loath to enjoin the enforcement of a criminal statute upon the mere showing that certain businesses have been threatened with prosecution while others were not. It remains the appellants' burden to demonstrate that their businesses are no more disruptive of the legislative policy behind the Sunday Trading Laws, i. e., providing one day of peace and tranquility a week, than are the ones that were not threatened by prosecution. Therefore the question of whether the act was enforced in an impermissible manner in Ross Township cannot be answered in the absence of proof that any

[ 243 Pa. Super. Page 485]

    selectivity in enforcement was not justified. To hold otherwise would be to engage in mere speculation as to the justifiability of the actions of the authorities in this case based only on numbers and this we refuse to do.

Decree affirmed.

SPAETH, Judge (concurring and dissenting).

I join in the court's affirmance of the lower court's order dismissing the complaint against appellees McCandless and O'Hara Townships, because as to those townships appellants did not meet the burden of proof imposed on one who alleges discriminatory enforcement of the Sunday Trading Laws (popularly known as the "Blue Laws"). I would, however, reverse the order dismissing the complaint against appellee Ross Township, because I believe that as to that township appellants did meet this burden of proof.

Appellants operate supermarkets in the three appellee townships. During September, 1974, appellant Kroger's supermarket and other supermarkets were open for business in McCandless Township on Sunday. They were cited and each fined $100 for violation of the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, eff. June 6, 1973, 18 Pa.C.S. § 7364, which provides:

(a) Offense defined. -- A person is guilty of a summary offense if he engages in the business of selling or otherwise dealing at retail in fresh meats, produce and groceries on Sunday.

In O'Hara Township, appellant Kroger and the owner of another supermarket were similarly prosecuted under section 7364 and also under section 7363, which proscribes sales on Sunday of an enumerated list of "certain ...


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