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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 ...

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