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decided: January 8, 1987.


Appeal from the Order of the Court of Common Pleas of Erie County, in case of Erie County, Erie County Department of Health v. Tid Bit Alley, Inc., No. 80-1985.


John W. Beatty, Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for appellant.

Patricia A. Whitmire, for appellee.

Judges Craig and Barry (p), and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 103 Pa. Commw. Page 47]

Tid Bit Alley, Inc. here appeals an order of the Court of Common Pleas of Erie County which (1) upheld

[ 103 Pa. Commw. Page 48]

    the validity of the procedure by which the Erie County Department of Health (ECDH) had allegedly adopted a state regulation of the Pennsylvania Department of Environmental Resources (DER), controlling the retail sale of bulk food, as its own local regulation, and (2) alternatively upheld ECDH's power to enforce the state regulation as such, in accordance with its literal terms.*fn1 The appeal also involves the trial court's categorization of Tid Bit Alley's bulk food sale process as constituting a nuisance.

[ 103 Pa. Commw. Page 49]

Trial Judge Levin found that Tid Bit Alley is a New Jersey corporation which operates a retail food establishment in the Millcreek Mall, Millcreek Township, Erie County.*fn2 On November 1, 1985, Tid Bit Alley opened its establishment for business without any plan review or license from the ECDH, although, in earlier communications, officials of the ECDH had informed Tid Bit Alley that a plan review was the initial stage of ECDH's mandatory licensing procedure, and had further stated that dispensing containers, which the store planned to use in the sale of bulk food, did not meet ECDH's standards because they permitted customer contact with food being offered for sale.

According to record testimony, in its Erie store, as in its other stores around the Commonwealth, Tid Bit Alley offers bulk food for sale in barrel-like containers, each covered by a hinged lid. Customers may take the desired quantity by using a scoop or tongs which are attached to the container. The trial court found that the store premises contained several hundred food dispensers with loose-fitting lids, which permit customer contact with food offered for sale to the public.

Erie County and ECDH initiated this equity action in the Court of Common Pleas of Erie County. After a non-jury trial, the court ordered that the store cease and desist from its current bulk food sale operations until it secures a license from ECDH.

[ 103 Pa. Commw. Page 50]

In 1971, the Department of Environmental Resources promulgated 25 Pa. Code § 151.171 to regulate retail food establishments. Subsection (c) of that regulation provides:

Only persons directly employed in the retail food establishment shall be permitted to handle unpackaged food intended for sale to the public. Display cases shall be so designed and arranged to prevent handling of such food by the public. The provisions of this subsection shall not apply to produce or any other product which is adequately packaged, wrapped or protected for display and self-service by the customer.

In the present case, ECDH claims that it (1) has adopted that regulation as its own regulation, which it may apply according to ECDH's own interpretation, or (2) that the laws and state regulations empower ECDH to enforce 25 Pa. Code § 151.171 directly according to its literal terms. Hence, ECDH objects to the containers used by Tid Bit Alley because they permit customer contact with the food. ECDH suggests that, in the alternative, Tid Bit Alley could obtain a license by replacing the barrels with vertical chute dispensers, by offering prepackaged bulk foods to customers, or by dispensing bulk foods through an employee of the store who would scoop and package the amount of food desired by the customer, to avoid customer contact with unpackaged food.

In-Futuro Adoption of Regulations

The trial judge concluded that:

3. The ECDH has rules and regulations which were properly promulgated and adopted pursuant to 16 P.S. § 12011(c).

[ 103 Pa. Commw. Page 537]

. Adoption of the regulations at issue conformed to the requirement of due process and the requirements were not so vague as to be unconstitutional.

ECDH argues that it properly promulgated 25 Pa. Code § 151.171 as its own regulation, through in-futuro adoption by a March 12, 1957 resolution of the Erie County Commissioners, authorizing the Director of ECDH and his agents to enforce, within the jurisdiction of ECDH

     the following rules and regulations of the Department of Health, Commonwealth of Pennsylvania, as long as these regulations are in effect, and likewise any rules and regulations which may subsequently be enacted to replace said rules and regulations or any amendments thereto.

(5) Rules and regulations of the Department of Health of the Commonwealth of Pennsylvania . . . for the protection of the Public health by regulating the conduct and operation of Public eating and drinking places. . . .

On March 20, 1957, the commissioners published notice of that action.

ECDH argues that the 1957 action and publication put the citizens of Erie County on notice that current and future state regulations would be in effect as local regulations. ECDH also contends that the Erie County Board of Health need not follow the letter of section 11 of the Local Health Administration Law, 16 P.S. § 12011, each time the state changes its health regulations, because the state employs procedural safeguards when promulgating its own regulations.

We cannot agree. The Local Health Administration Law grants the power to formulate health rules and

[ 103 Pa. Commw. Page 54]

    regulations only to the County Board of Health. Section 11 directs that rules and regulations formulated by the Board of Health:

(1) Shall be submitted to the county commissioners for approval or rejection

(2) The county commissioners shall give written notice to the board secretary of their approval or rejection within thirty days after receipt

(3) The board secretary shall certify approved rules and regulations and record them in a book which shall be open at all reasonable times to public inspection

(5) The rule or regulation shall be published within ten days of its publication either in full or so as to indicate its place of record.

ECDH concedes that, when DER promulgated 25 Pa. Code § 151.171 in 1971, ECDH followed none of these steps. We are aware of no authority which permits the circumvention of the express requirements of 16 P.S. § 12011.

ECDH cites, as authority for the propriety of in-futuro adoption, Mermin, "Co-Operative Federalism" Again: State and Municipal Legislation Penalizing Violation of Existing and Future Requirements: I, 57 Yale L.J. 1 (1947). However, that article suggests only that the adoption of an existing regulation, not the in-futuro adoption of a regulation, does not involve a delegation of legislative authority. See H.A. Steen Industries, Inc. v. Cavanaugh, 430 Pa. 10, 19, 241 A.2d 771, 776 (1968).

Citing Steen, ECDH also argues that Tid Bit Alley has no standing to attack the constitutionality of an in-futuro adoption of a regulation. In Steen, the Supreme Court, citing Commonwealth v. Alderman, 275 Pa. 483, 487, 119 A. 551, 553 (1923), stated that a party has no

[ 103 Pa. Commw. Page 55]

    standing to attack the constitutionality of an in-futuro adoption if there has been no change in the adopted requirements between the time of adoption and the time of application to him. ECDH adopted the state health regulations in 1957 and purported to adopt 25 Pa. Code § 151.171 in 1971; a change has occurred between the time of initial adoption and the current application. Accordingly, under Alderman, Tid Bit Alley does have standing to attack the constitutionality of the present in-futuro adoption.

In Pennsylvania State Board of Pharmacy v. Cohen, 448 Pa. 189, 200, 292 A.2d 277, 282 (1972), the Supreme Court stated, "[n]either the legislatively chosen agency . . ., nor the courts may imagine rules or standards for conduct not properly adopted and announced in advance."*fn6 See also Marion v. Green, 95 Pa. Commonwealth Ct. 210, 505 A.2d 360 (1986).

Accordingly, we conclude that ECDH did not promulgate a county counterpart of 25 Pa. Code § 151.171 with legal effect and accordingly may not enforce it as its own regulation.

Enforcement of State Regulations.

ECDH nevertheless argues that it may enforce 25 Pa. Code § 151.171 as a regulation of the Commonwealth

[ 103 Pa. Commw. Page 56]

    in accordance with section 10(a) of the Local Health Administration Law, noted above, and also under section 12(c) of the same Law, which provides:

The health director and his authorized subordinates may enter and inspect at reasonable times and in a reasonable manner any places or conditions whatsoever within the jurisdiction of the county department of health for the purpose of enforcing the health laws, rules and regulations of the Commonwealth and the county department of health, and for the purpose of examining for, and abating nuisances detrimental to the public health.

16 P.S. § 12012(c) (emphasis added).

Although ECDH has promulgated no written regulation of its own mandating the use of vertical chutes in the dispensing of bulk foods,*fn7 we note that 25 Pa. Code § 151.171(c) does expressly state that "Only persons directly employed in the retail food establishment shall be permitted to handle unpackaged food intended for sale to the public." Clearly, to require vertical chute dispensers, or some other method of eliminating direct customer contact with food, is not inconsistent with the regulation's express aim -- "to prevent handling of . . . food by the public."

[ 103 Pa. Commw. Page 57]

Tid Bit Alley argues that ECDH may not enforce a DER regulation and, in fact, a letter from a Department of Agriculture official to Tid Bit Alley reflects that department's apparent belief that it, and not DER, has jurisdiction over Tid Bit Alley where no local health department exists.*fn8 However, the Memorandum of Understanding between DER and the Department of Agriculture does in fact appear to give effect to DER's regulations over places like Tid Bit Alley, by providing "[i]n general, places where food is . . . sold for off-premise consumption, are the responsibility of DER."

However, repeatedly throughout 25 Pa. Code § 151, the regulations direct that enforcement responsibilities shall be carried out by the "licensor." In 25 Pa. Code § 151.1, "licensor" is defined as "[a]ny health agency approved by the Department to grant licenses to places serving food or drink." As such a licensor, ECDH is accordingly authorized to enforce 25 Pa. Code § 151.171(c).

Thus, because ECDH's application of 25 Pa. Code § 151.171(c) follows the plain meaning of that DER regulation, ECDH may prohibit Tid Bit Alley from dispensing bulk foods through its present means, and may withhold a license until Tid Bit Alley employs means of dispensing which avoid customer contact with the food offered for sale.

Statutory Nuisance

The trial court also concluded that Tid Bit Alley's method of merchandising is a nuisance by statutory definition. We cannot agree.

[ 103 Pa. Commw. Page 58]

In Talley v. Borough of Trainer, 38 Pa. Commonwealth Ct. 441, 394 A.2d 645 (1978), this court concluded that a municipality may not merely label a specific use as a nuisance per se, but rather must phrase its ordinance in such a way as to require the municipality to establish affirmatively that a nuisance in fact existed. In that case, we upheld the trial court's conclusion that the municipality had sustained its burden of proving that the petitioner had violated that section of the municipal ordinance which prohibited the placement of a wrecked, junked, stripped or abandoned vehicle in a place where its presence constitutes a hazard on private property.

In the present case, the state regulations, 25 Pa. Code § 151.171(c), set forth only affirmative requirements imposed upon retail food establishments, not prohibitions.

In Schubach v. Silver, 9 Pa. Commonwealth Ct. 152, 305 A.2d 896 (1973), rev'd on other grounds, 461 Pa. 366, 336 A.2d 328 (1975), this court stated that a simple violation of a zoning ordinance does not constitute a nuisance per se. We adopt that principle here, concluding that, even if Tid Bit Alley violated 25 Pa. Code § 151.171(c), that violation does not constitute a nuisance per se.

Common Law Nuisance

Finally, the trial court also decided that Tid Bit Alley's bulk food sale constituted a common law nuisance. The trial court made two express findings regarding Tid Bit Alley's method of dispensing:

10. The premises contained several hundred of the food dispensers which permit customer contact with food offered for sale to the public.

[ 103 Pa. Commw. Page 5911]

. The premises contained several hundred food dispensers with loose-fitting lids.

However, in the discussion section of the opinion, the trial court commented upon the use of the containers based upon the court's personal viewing of the site. The court noted that, although posted signs required the use of gloves when handling the product, the gloves and dispensing bags appeared to be beyond the reach of children. The court also noted that some lids were not tightly closed while others were falling off the containers.*fn9

In Zimmerman v. Philjon, Inc., 470 Pa. 409, 414, 368 A.2d 694, 696 (1977), the Supreme Court reaffirmed that, "where there is no nuisance per se, an injunction will not be granted to restrain a nuisance that is merely anticipated or threatened." (Citation omitted.)

In view of the absence of evidence tending to prove that the conditions surrounding Tid Bit Alley's current method of merchandising constitute a nuisance in fact, facts found by the trial court based upon its viewing of the site do not constitute competent evidence to support the trial court's conclusion that a common law nuisance presently exists.

In Cowan v. Bunting Glider Co., 159 Pa. Superior Ct. 573, 575-76, 49 A.2d 270, 271 (1946), the Superior Court stated:

Triers of fact, be they judges, jurors, viewers, board or commissions, may always visit and inspect the locus in quo to secure a better understanding

[ 103 Pa. Commw. Page 60]

    of the evidence and to enable them to determine the relative weight of conflicting testimony. But a view cannot replace testimony; the visual observations of the trier cannot be substituted for testimony; and the only legitimate purpose of an inspection is to illustrate the evidence and provide a base for understanding and comprehending testimony upon the record. . . . (Citations omitted.)

The rationale, according to Cowan, is that the trier of fact, by relying upon the view as an independent source,*fn10 could thereby become a witness without taking the witness stand.


Because this court concludes that a nuisance determination is not supportable and that ECDH did not adopt a governing regulation of its own, but that ECDH is empowered to withhold a license on the basis of the plain terms of the state regulation, the decree will be modified accordingly, and, as modified, will be affirmed.


Now, January 8, 1987, the adjudication and order of the Court of Common Pleas of Erie County at No. 80-Equity-1985, dated April 14, 1986, is modified to consist

[ 103 Pa. Commw. Page 61]

    of the first three lines of paragraph 2 of that order, as follows:

Defendant shall cease and desist its current manner of operation until a license and/or permission for continuation of business is obtained from the Erie County Department of Health.

As thus modified, the order is affirmed.


Order modified and affirmed.

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