Appeal from Common Pleas Court, Fayette County; Honorable Richard D. Cicchetti, Presiding Judge.
Mark S. Galper, Shire & Bergstein, American Civil Liberties Union, Greater Pittsburgh Chapter, Monessen, for appellant.
Jack R. Heneks, Jr., First Administrative Asst. Dist. Atty., Fayette County Dist. Attys. Office, Uniontown, for appellee.
Colins and McGinley, JJ., and Barbieri, Senior Judge.
[ 128 Pa. Commw. Page 95]
This is an appeal by Mark Henry Satinoff (Appellant) from the order of the Court of Common Pleas of Fayette County (trial court) sentencing the Appellant to pay certain fines and court costs for violation of the Borough of Masontown's (Borough) Peddling and Soliciting Ordinance (Ordinance).
On May 2, 1987, Appellant was arrested by Lt. Robert L. Kelly of the Masontown Police Department for violation of the Borough's Ordinance. The Ordinance requires that any
[ 128 Pa. Commw. Page 96]
person engaged in peddling, as defined in the Ordinance,*fn1 apply for a license, the fee for which is $20 per day, for the privilege of peddling between the hours of 9:00 a.m. and 5:00 p.m., Monday through Saturday. On the date of the arrest, Appellant was distributing the Social Workers Party's newspaper, "The Militant," "for a donation of $.75 or whatever pocket change they had" without a license. (Notes of Testimony, March 3, 1988, (N.T.) at 15.)
The district justice found Appellant guilty of violating the Ordinance and Appellant appealed. The trial court conducted a de novo hearing and found that Appellant's activity in the Borough on the date of arrest was not for the sole purpose of disseminating literature on the political ideas of the Socialist Party. The trial court found that Appellant sought to sell subscriptions to The Militant and was successful. The trial court determined that Appellant's conduct was one of a commercial nature beyond the protection of first amendment political speech. The trial court dismissed Appellant's appeal and reinstated the fine and costs imposed by the district justice.
[ 128 Pa. Commw. Page 97]
Initially, we note that the burden of proving that a statute is unconstitutional is on the challenger. Morris v. Public School Employes' Retirement System, 114 Pa. Commonwealth Ct. 369, 538 A.2d 1385 (1988). A statute is presumed to be constitutional, and the burden of proving otherwise is heavy. Morris. Furthermore, any doubts as to a statute's constitutionality are to be resolved in favor of sustaining the statute. Parker v. Department of Labor Page 97} and Industry, 115 Pa. Commonwealth Ct. 93, 540 A.2d 313 (1988).
On appeal Appellant argues that: 1) he was engaged in political activity and not in commercial activity; 2) the imposition of the $20 licensing fee to his political activity renders the Borough's Ordinance unconstitutional; and 3) the trial court erred in refusing to permit the Appellant to ...