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KROGER CO. v. O'HARA TOWNSHIP (10/05/78)

decided: October 5, 1978.

THE KROGER CO., A CORPORATION AND THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., A CORPORATION, APPELLANTS,
v.
O'HARA TOWNSHIP, MCCANDLESS TOWNSHIP AND ROSS TOWNSHIP, POLITICAL SUBDIVISIONS, APPELLEES. THE JAMESWAY CORPORATION, APPELLANT, V. CONEWANGO TOWNSHIP, APPELLEE. FISHERS BIG WHEEL, INC., A CORPORATION, AND TREASURE ISLAND DEPARTMENT STORES, INC., A CORPORATION, APPELLANTS, V. DONALD WILLIAMS, DISTRICT ATTORNEY OF LAWRENCE COUNTY, PENNSYLVANIA, LIEUTENANT ARNOLD FONSECA, COMMANDER, PENNSYLVANIA STATE POLICE, NEW CASTLE STATION, TOWNSHIP OF NESHANNOCK, A MUNICIPAL CORPORATION, TOWNSHIP OF UNION, A MUNICIPAL CORPORATION, AND JUSTICE OF THE PEACE, BETTY LOU KRADEL. COMMONWEALTH OF PENNSYLVANIA V. JAMES THOMAS GALLO, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. GARY JOSEPH DEMARCHIS, APPELLANT



No. 134 March Term, 1977, Appeal from the Order of the Superior Court of Pennsylvania at No. 827 April Term, 1975 which affirmed an Order of the Court of Common Pleas of Allegheny County, at No. 1402 January Term, 1975. No. 159 March Term, 1977, Appeal from the Final Order dated December 11, 1977 of the Court of Common Pleas of the 37th Judicial District of Pennsylvania, Warren County Branch, at Civil Division No. 497 of 1976, in Equity. No. 160 March Term, 1977. No. 161 March Term, 1977. No. 162 March Term, 1977, Appeals from the Orders dated December 9, 1976 of the Superior Court of Pennsylvania at Nos. 318, 319 and 320 April Term, 1977, Affirming the Orders of the Court of Common Pleas of Lawrence County, dated December 7, 1976 at Civil Division No. 48 of 1976 and Criminal Division at Nos. 96-965 of 1976 and Nos. 966-972 of 1976.

COUNSEL

Paul A. Manion, Gerald C. Paris, Joseph F. McDonough, Reed, Smith, Shaw & McClay, Pittsburgh, for appellant in No. 134.

Lisle A. Zehner, Zehner, Colville & Zehner, William M. Wycoff, Thorp, Reed & Armstrong, James W. Dunn, Jr., Pittsburgh, for appellees in No. 134.

Albert J. Zangrilli, Jr., Berkman, Ruslander, Pohl, Lieber & Engel, Pittsburgh, for appellant in Nos. 159 & 160.

No appearance for appellee in No. 159.

Robert Engel, Pittsburgh, for appellant in Nos. 160, 161 & 162.

Donald E. Williams, Dist. Atty., New Castle, for appellees in Nos. 160, 161 & 162.

William B. Ball, Harrisburg, amicus curiae, for Pa. Conference on Interchurch Cooperation.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix and Larsen, JJ., filed concurring opinions. Eagen, C. J., filed a dissenting opinion in which Pomeroy, J., joined.

Author: Manderino

[ 481 Pa. Page 104]

OPINION

We are asked in five companion cases to decide the constitutionality of Pennsylvania's Sunday Trading Laws, popularly referred to as the "Blue Laws", which prescribe criminal sanctions for all labor, business, and commercial activities on Sunday, with noted exceptions. The Superior Court held that appellants' constitutional claims were foreclosed by earlier decisions of this Court and of the United States Supreme Court, 243 Pa. Super. 479, 366 A.2d 254 (1976). However, the court was divided on the question of whether appellees, certain municipalities in Allegheny County, discriminated in the enforcement of the laws in violation of the principle outlined by the United States Supreme Court in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). We granted appellants' petitions for allowance of appeal, and, on November 20, 1976, continued the Superior Court's earlier order staying prosecutions under the Sunday Trading Laws until further order of this Court. We now reverse for the reasons contained herein.

In 1974, appellants, Kroger Company and Great Atlantic and Pacific Tea Company were cited by appellees for violations of the Sunday Trading Laws. Both McCandless and O'Hara Townships initiated formal prosecutions, but Ross Township warned of the possibility for prosecution should appellants remain open on Sunday.

Kroger Company and Great Atlantic & Pacific Tea Company then filed a petition in the Court of Common Pleas of Allegheny County to enjoin appellees from prosecuting under

[ 481 Pa. Page 105]

    the Sunday Trading Laws. Appellants also sought a stay of any further prosecutions pending adjudication of this case. After a review of the depositions, stipulations, and sundry evidentiary materials, the Court of Common Pleas granted appellants' stay but denied appellants' relief on the merits. The Kroger Co. v. O'Hara Township, 123 P.L.J. 275 (C.P.Allegh.Co.1975). Appellant, Jamesway Corporation, based on the belief that our stay order entered in the Kroger Company case was of statewide application, opened its store in Conewango Township, Warren County, on Sunday, November 26, 1976. That same day, Jamesway's store manager was charged with ten separate violations of one section of the Sunday Trading Laws. Jamesway filed a complaint in equity in the Court of Common Pleas of Warren County, seeking to enjoin the defendant township from enforcing the Sunday Trading Laws. Appellant, Jamesway, like appellants Kroger and Great Atlantic and Pacific Tea, challenged the constitutionality of the Sunday Trading Laws and also contended that (1) the court order of November 20th was of statewide application, and (2) if not, it was unjust for Jamesway to be prosecuted for violations of the Sunday Trading Laws in one county when this Court stayed similar prosecutions in another county.

The Court of Common Pleas of Warren County denied the injunctive relief and also denied Jamesway's request to stay prosecutions pending appeal. The Superior Court denied similar requests. Jamesway then applied to this Court for similar relief, and on December 17, 1976, this Court granted the relief sought, enjoining the further proceedings and staying those already commenced against appellant's store manager. Appellant's petition for allowance of appeal was subsequently granted.

Appellants, Fishers Big Wheel, Inc. and Treasure Island Department Stores, Inc., like appellant Jamesway opened for Sunday business after this Court's order of November 20, 1976 which stayed prosecutions in the Kroger Co., case. After being cited for sales of merchandise in violation of the Sunday Trading Laws, injunctive and interim relief was

[ 481 Pa. Page 106]

    requested but denied by the Court of Common Pleas of Lawrence County and later denied by the Superior Court. On December 11, 1976, we granted the relief sought by Fishers and Treasure Island, and later granted their petition for allowance of appeal.

Appellants, Fishers and Treasure Island, do not raise any issues other than those raised by appellants Kroger Co., Great Atlantic & Pacific Tea Co., and Jamesway Corporation.

The four sections of the Sunday Trading Laws, 18 Pa.C.S.A. §§ 7361-7364 (1973) herein challenged provide as follows:

"§ 7361. Worldly employment or business

"(a) Offense defined. -- A person is guilty of a summary offense if he does or performs any worldly employment or business whatsoever on Sunday (works of necessity, charity and wholesome recreation excepted). Fines collected for violations of this section shall be for the use of the Commonwealth.

(b) Exception. -- Subsection (a) of this section shall not prohibit:

(1) The dressing of victuals in private families, bakehouses, lodginghouses, inns and other houses of entertainment for the use of sojourners, travellers or strangers.

(2) The sale of newspapers.

(3) Watermen from landing their passengers, or ferrymen from carrying over the water travellers.

(4) Work in connection with the rendering of service by a public utility as defined in the Public Utility Law.

(5) Persons removing with their families.

(6) The delivery of milk or the necessaries of life, before nine o'clock antemeridian, nor after five o'clock postmeridian.

(7) The production and performance of drama and civic light opera for an admission charge by nonprofit corporations in cities of the second class, between the

[ 481 Pa. Page 107]

    hours of two o'clock postmeridian and 12 o'clock midnight.

(8) The conducting, staging, managing, operating, performing or engaging in basketball, ice shows and ice hockey for an admission charge in cities of the first and second class, between the hours of two o'clock postmeridian and 12 o'clock midnight.

(c) Definition. -- As used in this section 'wholesome recreation' means golf, tennis, boating, swimming, bowling, basketball, picnicking, shooting at inanimate targets and similar healthful or recreational exercises and activities.

"§ 7362. Trading in motor vehicles and trailers

(a) Offenses defined. -- A person is guilty of a summary offense if he engages in the business of buying, selling, exchanging, trading, or otherwise dealing in new or used motor vehicles or trailers, on Sunday.

(b) Limitation of action. -- Information charging violations of this section may be brought within 72 hours after the commission of the alleged offense and not thereafter.

(c) Repeated offense penalty. -- A person who commits a second or any subsequent offense within one year after conviction for the first offense, shall be sentenced to pay a fine not exceeding $200.

(d) Definitions. -- As used in this section the following words and phrases shall have the meanings given to them in this subsection:

'Motor vehicle.' Every self-propelled device in, upon or by which any person or property is or may be transported or drawn on a public highway.

'Trailer.' Every vehicle, without motor power, designed to carry property or passengers or designed and used exclusively for living quarters wholly on its own structure, and to be drawn by a motor vehicle.

"§ 7363. Selling certain personal property

(a) Offense defined. -- A person is guilty of a summary offense if he engages on Sunday in the business of selling, or sells or offers for sale, on such day, at retail, clothing and wearing apparel, clothing accessories, furniture,

[ 481 Pa. Page 108]

    housewares, home, business or office furnishings, household, business or office appliances, hardware, tools, paints, building and lumber supply materials, jewelry, silverware, watches, clocks, luggage, musical instruments and recordings, or toys.

(b) Separate offenses. -- Each separate sale or offer to sell shall constitute a separate offense.

(c) Exceptions. --

(1) Subsection (a) of this section shall not apply to novelties, souvenirs and antiques.

(2) No individual who by reason of his religious conviction observes a day other than Sunday as his day of rest and actually refrains from labor or secular business on that day shall be prohibited from selling on Sunday in a business establishment which is closed on such other day the articles specified in subsection (a) of this section.

(d) Limitation of action. -- Information charging violations of this section shall be brought within 72 hours after the commission of the alleged offense and not thereafter.

(e) Repeated offense penalty. -- A person who commits a second or any subsequent offense within one year after conviction for the first offense shall be sentenced to pay a fine of not exceeding $200.

(f) Definitions. -- As used in this section the following words and phrases shall have the meanings given to them in this subsection:

'A day other than Sunday.' Any consecutive 24 hour period.

'Antique.' An item over 100 years old, or ethnographic objects made in traditional aboriginal styles and made at ...


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