summary judgment under Rule 56, Defendant through a motion for judgment on the pleadings under Rule 12(c). Because Defendant has responded to Plaintiffs' motion for summary judgment, and therefore has had an opportunity to submit any pertinent material as required under Rule 12(c), and because the material facts do not appear to be in dispute, we will treat the motions as cross motions for summary judgment.
II. Standard of Review
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In reviewing the evidence, facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986). Summary judgment must be entered in favor of the moving party "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. . . ." Id., 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).
Plaintiffs assert that Pennsylvania's Commitment Requirement is unconstitutional on two grounds: first, that it constitutes an impermissible delegation of legislative authority to cigarette manufacturers, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and in violation of Article II, § 1 of the Pennsylvania Constitution; and second, that it creates a classification between similarly situated entities without any rational basis, and thus violates the Equal Protection Clause of the Fourteenth Amendment.
A. Delegation of Legislative Authority
A delegation of legislative authority to private parties violates the Due Process Clause of the Fourteenth Amendment. Washington ex. rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct. 50, 73 L. Ed. 210 (1928); Carter v. Carter Coal Co., 298 U.S. 238, 56 S. Ct. 855, 80 L. Ed. 1160 (1936); General Elec. Co. v. New York State Dep't of Labor, 936 F.2d 1448, 1455 (2d Cir. 1991). Similarly, a delegation of legislative power violates the Pennsylvania Constitution's requirement that "the Legislative power of this Commonwealth shall be vested in a General Assembly," Pa. Const. Art. II § 1. State Bd. of Chiropractic Examiners v. Life Fellowship of Pa., 272 A.2d 478, 441 Pa. 293 (1971).
In Roberge, the Supreme Court struck down a Seattle zoning ordinance which permitted the construction of a philanthropic home for the elderly in a residential district only "when the written consent shall have been obtained of the owners of two thirds of the property within four hundred feet of the proposed building." 278 U.S. at 118, 49 S. Ct. at 50-51, 73 L. Ed. at 212. The Court held that the delegation of such power to neighboring landowners, unfettered by any standards and without provision for review, "is repugnant to the due process clause of the Fourteenth Amendment." Id. at 121-22, 49 S. Ct. at 52, 73 L. Ed. at 213-14.
Article II, § 1 of the Pennsylvania Constitution imposes similar restrictions. In Life Fellowship, the Pennsylvania Supreme Court struck down a provision of the Chiropractic Registration Act, requiring chiropractors to attend a two-day conference held by the Pennsylvania Chiropractic Society, or an equivalent educational conference, as a prerequisite to renewal of their licenses. 272 A.2d 478, 441 Pa. 293. The court found that the statute's grant of power to the Chiropractic Society to establish whatever standards it pleased for the education necessary for the maintenance of chiropractic licenses was "an abrogation by the General Assembly of its constitutional legislative duties." Id. at 481, 441 Pa. at 298.
The Commitment Requirement suffers from the same infirmities as the statutes struck down in Roberge and Life Fellowship. The statute in question here establishes a system in which private approval is a prerequisite for public action. By requiring that an applicant for a stamping agent's license obtain commitments from two cigarette manufacturers, who must between them represent at least 40% of the market, the Commitment Requirement gives the major cigarette manufacturers (particularly Philip Morris, which itself accounts for some 44% of the market) power to control who may or may not become a stamping agent.
The Commonwealth most certainly may exercise control over the distribution and sale of cigarettes. In doing so, however, the legislature may not hand de facto control over the process to private parties, "uncontrolled by any standard or rule . . . not bound by any official duty, [and] free to withhold consent for selfish reasons or arbitrarily." Roberge, 278 at 122, 49 S. Ct. at 52, 73 L. Ed. at 214; Life Fellowship, 272 A.2d at 481, 441 Pa. at 298; see also Schulz v. Milne, 849 F. Supp. 708, 712 (N.D. Cal. 1994) (city's deference to support or opposition of private neighborhood review board; "the state may not constitutionally abdicate or surrender its power to regulate land-use to private individuals without supplying standards to govern the use of private discretion"). 72 Pa. Stat. § 204-A(a)(2)'s requirement that an applicant for a stamping agent's license have commitments from "at least two cigarette manufacturers whose aggregate share is at least forty per centum of the Commonwealth's cigarette market" violates both the United States and the Pennsylvania Constitutions.
B. Equal Protection
Under the Fourteenth Amendment, a state may not "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Where a state law creates non-suspect classifications, and treats those classes differently, the law will be found to violate Equal Protection only if it is not "rationally related to legitimate governmental objectives." Schweiker v. Wilson, 450 U.S. 221, 230, 101 S. Ct. 1074, 1080-81, 67 L. Ed. 2d 186, 195 (1981). A statute will pass the rational basis test so long as "any state of facts reasonably may be conceived to justify it." Bowen v. Gilliard, 483 U.S. 587, 601, 107 S. Ct. 3008, 3017, 97 L. Ed. 2d 485, 501 (1987).
The purposes of the Cigarette Sales and Licensing Law are formally expressed by the Legislature in the law's statement of legislative intent:
It is hereby declared to be in the public interest of this Commonwealth:
(1) To prohibit advertising or offering cigarettes for sale below cost if the intent thereof is to increase the incidence of cigarette usage or to injure, destroy or substantially lessen competition.