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decided: February 14, 1979.


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of East Suburban Press, Inc., a corporation v. Township of Penn Hills, No. 2088 January Term, 1975.


Henry G. Beamer, with him Metz, Cook, Hanna & Kelly, for appellant.

August C. Damian, with him Stanley M. Stein, and Feldstein, Grinberg, Stein & McKee, for appellee.

Edmund S. Ruffin, III, C. James Zeszutek, and Thorp, Reed & Armstrong, for amicus curiae, Pittsburgh Press Company.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 40 Pa. Commw. Page 440]

This declaratory judgment proceeding involves specifications of the Newspaper Advertising Act*fn1 (Act) which a newspaper must meet in order to carry legal advertising. In addition to a question of interpretation, we also have a question of whether or not an unconstitutional delegation of legislative power is involved in the requirement that a newspaper, to qualify, must be eligible for the second class mailing privileges of the United States Postal Service.

East Suburban Press, Inc. (East Suburban), publisher of a paper called The Green Tab, which is primarily distributed free of charge and lacks second class mailing privileges, brought the proceeding when the Township of Penn Hills, a first class township in Allegheny County, following an opinion of its solicitor, refused to permit East Suburban to bid for the township's legal advertising.

The Court of Common Pleas of Allegheny County, correctly determining that an actual controversy existed, permitted Dardanelle Publications, Inc., a local bidder for legal advertising, to intervene as an interested party defendant. The Pittsburgh Press Company, a newspaper publisher, as amicus curiae, and the Pennsylvania Attorney General have filed briefs on the constitutional question.

The Act, in setting forth the qualifications for acceptance of legal advertising,*fn2 requires that a publication

[ 40 Pa. Commw. Page 441]

    contain news, editorial comment and advertising on four or more pages per issue, be issued at short intervals and have a history of at least six months of publication from an established place of business.

In addition, the section requires that a qualified publication must be (1) distributed for a "definite

[ 40 Pa. Commw. Page 442]

    price or consideration" and subscribed for "at a fixed price for each copy" or per annum, not distributed gratuitously, and be (2) 'either entered or entitled to be entered under the Postal Rules and Regulations as second class matter in the United States mails. . . ."

Although East Suburban's petition claimed compliance with the price requirement, it also presented the court below with an alternative claim that the price requirement violates equal protection and due process, as well as raising the validity of the second class mail requirement. The court below, with findings indicating that East Suburban does not comply with either the price or mailing privilege requirements, considered the constitutionality of both those requirements and, holding them to be valid, refused to grant relief.

On appeal to this Court, East Suburban, no longer attacking the validity of the price requirement, claims compliance with it and pursues a constitutional attack only upon the second class mail requirement, with which it admittedly does not comply.

On the first question, whether or not East Suburban's paper is distributed or circulated at a definite or fixed price, the careful findings of fact made by the court below are conclusive that it is, in the main, circulated gratuitously. Summarized, the pertinent findings on this point are:

East Suburban distributes between 46,000 and 52,000 copies of its weekly paper, The Green Tab, in the Penn Hills vicinity. (Finding No. 1)

The paper bears a price of ten cents per copy but all copies are distributed free of charge by carriers, and in bulk to commercial outlets, with the exception of 400 to 1,000 copies per week which are mailed to subscribers who pay $9.00 per year. (Findings Nos. 2, 5)

[ 40 Pa. Commw. Page 443]

Although the findings reveal The Green Tab to be a substantial publication, containing news as well as advertising, on approximately 44 pages per issue, produced by 13 full-time employees including newswriters, the facts are clear that it is overwhelmingly a gratuitously distributed publication. We cannot agree with East Suburban's contention that The Green Tab should be treated as a newspaper distributed at a fixed price simply because 2% of its circulation is mailed to paying subscribers.

A plain reading of the Act*fn3 makes clear that the phrase "without regard to number" refers to the number of subscribers or readers, not to the number of copies distributed for a definite price.

The distinction between publications distributed free of charge and those which are sold is a common and commonly understood one, even though, in the publishing world, a charge may be imposed for mailing copies of a publication normally handed out free or a few copies of a paid publication may be given away. East Suburban's paper falls into the class of free publications.

Moreover, even if we were to assume that East Suburban's paper fails of compliance only with respect to lack of second class mailing privileges, we conclude that no invalid delegation of legislative power is involved in that requirement, which therefore operates to disqualify The Green Tab for legal advertising.

A controlling dichotomy was expressed in Locke's Appeal, 72 Pa. 491 (1872), in the familiar statement:

The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of

[ 40 Pa. Commw. Page 444]

    things upon which the law makes, or intends to make, its own action depend. . . .

72 Pa. at 498.

Thus, when the legislature, facing the impossibility of stating all things definitively in advance, delegates the power to determine the existence or non-existence of a described fact or status, there is no unconstitutional abdication, as more recently exemplified by Commonwealth v. Tarabilda, 222 Pa. Superior Ct. 237, 294 A.2d 830 (1972), which defined narcotics as those drugs found by the United States Secretary of the Treasury to be addicting.

Tarabilda and particularly Locke's Appeal, supra, which involved a local option liquor law, both illustrate the type of legislation which involves status-finding, a statutory statement of policy by the legislature to become operative only upon the finding by an administrative agent that a described status exists. A status-finding statute does not involve a delegation of law-making, at least not in the sense of creating general rules governing the subject of the legislature's concern, and therefore the courts have not required detailed standards, but only a description of the status, such as the local vote on liquor option in Locke's Appeal.

A second type of statute is the rule-making type, where the legislature states a general policy but gives the administrative agent, within limits set by express standards, the power to fill in details of the policy with regulations. This type involves a delegation of rule-making in the sense of creating generalized rules of continuing application on the subject of the legislature's concern. Hence, judicial doctrine has required clear standards.*fn4

[ 40 Pa. Commw. Page 445]

A rule-making delegation was upheld in Fisher's Petition, 344 Pa. 96, 23 A.2d 878 (1942) in which a delegated power to promulgate minimum wage levels and regulations was circumscribed by explicit standards considered to be "ample" by the Supreme Court.

The result was different in Holgate Brothers Co. v. Bashore, 331 Pa. 255, 200 A. 672 (1938), involving a delegation of regulation-making without limiting standards.

Approaching the language of the Newspaper Advertising Act head-on, we must acknowledge fairly that the reference here, at first appearance, seems to leave the second class mail qualification to whatever rules and regulations the United States Postal Service might make from time to time, without any standard other than that supplied by reference to the second class mailing privilege itself. In other words, it seemingly has the structure of a rule-making statute, without a standard to control the rule-making.

However, the key point here is that the Pennsylvania General Assembly, in setting about to define publications eligible to carry legal advertising, did not delegate the formulation of rules on the subject of legal advertising to any external agency. The federal concern here is not with that subject at all but with the entirely different matter of postal operations, a subject which the United States Constitution reposes exclusively in the federal government and its creatures. United States Constitution, Art. I, ยง 8, cl. 7;

[ 40 Pa. Commw. Page 446]

    fear that it will usurp the state legislature's purposes with respect to legal advertising, particularly when, as Judge Finkelhor soundly pointed out below, a rational concern for legal advertising is that its circulation be facilitated by the independent action of the federal establishment.

Because the state legislature, for the dissemination of legal advertising, has an obviously legitimate concern about circulation through the mails, the exclusive jurisdiction of the federal agency over the post leaves no alternative but to defer to the way in which the postal system chooses to operate.*fn7 As in the Alderman case, supra, we simply have "acceptance by our legislature of the inevitable."

In summary, our precedents indicate that, even though a state statute making reference to a federal determination involves more than status-finding, it nevertheless is not a rule-making delegation requiring specific guiding standards when (1) the federal determination has a rational relationship to the state law's subject and purpose, and (2) the federal determination deals with a different subject and purpose specially or exclusively within the federal sphere.

Accordingly, we affirm the decision of the court below, holding that it is not an unconstitutional delegation of legislative power to require that newspapers

[ 40 Pa. Commw. Page 448]

    have second class mailing privileges in order to publish official legal advertising.


And Now, this 14th day of February, 1979, the order of the Court of Common Pleas of Allegheny County, dated July 20, 1977, is affirmed.



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