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OPEN PANTRY FOOD MARTS v. COMMONWEALTH PENNSYLVANIA EX REL. TOWNSHIP HEMPFIELD (09/05/78)

decided: September 5, 1978.

OPEN PANTRY FOOD MARTS, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA EX REL. TOWNSHIP OF HEMPFIELD, APPELLEE. MARTIN OIL SERVICE, INC., APPELLANT V. COMMONWEALTH OF PENNSYLVANIA EX REL. TOWNSHIP OF HEMPFIELD, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Westmoreland County in cases of Commonwealth of Pennsylvania ex rel. Township of Hempfield v. Open Pantry Food Marts, No. 807 July Term, 1977, and Commonwealth of Pennsylvania ex rel. Township of Hempfield v. Martin Oil Service, Inc., No. 870 July Term, 1977.

COUNSEL

Mark K. McNally, with him Brandt, Milnes, Rea and Malone, for appellants.

Thomas J. Godlewski, for appellee.

Judges Mencer, Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 37 Pa. Commw. Page 424]

Defendants Open Pantry Food Marts and Martin Oil Service, Inc., were summarily convicted of violating Township of Hempfield Ordinance 77-1, which regulates the dispensing of gasoline at service stations. The defendants appealed to the Court of Common Pleas of Westmoreland County, contending that Ordinance 77-1 was an improper exercise of the police power and in conflict with regulations adopted by the Pennsylvania State Police. When the Court of Common Pleas affirmed the convictions, the defendants appealed to this Court. We affirm.

[ 37 Pa. Commw. Page 425]

The ordinance in question, which by its terms applies to all retail gasoline service stations in the Township of Hempfield, requires that the dispensing of gasoline into vehicles be supervised by a trained attendant located within "fifteen (15) feet of the point of dispensing . . . at all times during the dispensing." An exception to this rule is granted where the attendant is located in a booth on a "pump island," which booth must contain a "control panel" controlling all of the pumps at the station.

The defendants each operate a self-service type gasoline station in the Township. It was stipulated before the lower court that the defendants did permit customers to dispense gasoline while no trained attendant was within 15 feet or in an appropriate "island booth."

The defendants first contend that Ordinance 77-1 is void as being in conflict with regulations adopted by the Pennsylvania State Police pursuant to Section 1 of the Act of April 27, 1927, P.L. 450, as amended, 35 P.S. § 1181 (granting authority to State Police to adopt regulations governing, inter alia, the use, storage, and sale of gasoline). The regulations relied upon by the defendants are located at 37 Pa. Code § 13.115 and provide, inter alia, as follows:

§ 13.115. Special and automatic dispensers.

(a) Approved special dispensing devices [such as customer-operated pumps] are permitted at service stations, if there is at least one qualified attendant on duty while the station is open to the public. The primary function of the attendant shall be to supervise, observe and control the dispensing of flammable or combustible liquids while such liquids are being dispensed. ...


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