77 A.2d 616 (Pa. 1951), Western Pennsylvania Restaurant Ass'n v. City of Pittsburgh

Citation:77 A.2d 616, 366 Pa. 374
Opinion Judge:HORACE STERN, Justice.
Party Name:WESTERN PENNSYLVANIA RESTAURANT ASS'N et al. v. CITY OF PITTSBURGH et al.
Attorney:Anne X. Alpern, City Solicitor, J. Frank McKenna, Jr., Asst. City Solicitor, Pittsburgh, for appellant. Charles Denby, Reed, Smith, Shaw & McClay, James Craighead Kuhn, Jr., and Wilner & Wilner, all of Pittsburgh, amici curiae. Leonard Boreman and Krause & Boreman, all of Pittsburgh, for appellees.
Judge Panel:Before DREW, C. J., and STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.
Case Date:January 02, 1951
Court:Supreme Court of Pennsylvania

Page 616

77 A.2d 616 (Pa. 1951)

366 Pa. 374

WESTERN PENNSYLVANIA RESTAURANT ASS'N et al.

v.

CITY OF PITTSBURGH et al.

Supreme Court of Pennsylvania.

January 2, 1951

Rehearing Denied Jan. 24, 1951.

Suit by Western Pennsylvania Restaurant Association, a corporation, and others, against the City of Pittsburgh, a municipal corporation, and others, for a decree declaring an ordinance providing for the licensing of public eating places void and enjoining officials from carrying out or enforcing its provisions. The Court of Common Pleas, Allegheny County, A. Marshall Thompson, J., at No. 1656 July Term 1949D, in equity, enjoined enforcement of the ordinance. The Court, en banc, entered a final decree to the same effect, and the defendants appealed. The Supreme Court, Stern, J., at No. 124 March Term, 1950, held that the ordinance was valid and not inconsistent with provisions of a state statute regulating the operation of public eating places.

Decree reversed, and bill dismissed.

Ordinance providing for licensing of public eating places, stating sanitary standards, and establishing grade A, B and C restaurants, and allowing licensing of grade B restaurants to give them a reasonable opportunity to bring operations up to grade A standards did not unconstitutionally discriminate since provisions applied equally to all engaged in the restaurant business.

Page 617

[366 Pa. 376] Anne X. Alpern, City Solicitor, J. Frank McKenna, Jr., Asst. City Solicitor, Pittsburgh, for appellant.

Page 618

Charles Denby, Reed, Smith, Shaw & McClay, James Craighead Kuhn, Jr., and Wilner & Wilner, all of Pittsburgh, amici curiae.

Leonard Boreman and Krause & Boreman, all of Pittsburgh, for appellees.

Before DREW, C. J., and STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.

HORACE STERN, Justice.

[366 Pa. 377] The question is whether the City of Pittsburgh may validly enact an ordinance to safeguard the public health by regulating the operation of restaurants within the city. Ordinarily the answer to such a question would clearly be in the affirmative because the city's Charter Act, Act of March 7, 1901, P.L. 20, Article XIX, section XXXIII, 53 P.S. § 9673, vests in it the power ‘ To make regulations to secure the general health of the inhabitants * * *’,-a power which, indeed, it would probably possess even in the absence of such a specific grant. Wartman v. City of Philadelphia, 33 Pa. 202, 209; Adams v. City of New Kensington, 357 Pa. 557, 563, 564, 55 A.2d 392, 395.1 In the present instance, however, further consideration of the problem is required because of the enactment by the legislature of the Act of May 23, 1945, P.L. 926, 35 P.S. § 655.1 et seq. entitled: ‘ For the protection of the public health by regulating the conduct and operation of public eating and drinking places within this Commonwealth; requiring their licensing; imposing certain duties on the Department of Health of this Commonwealth and on the local health authorities; and providing penalties.’ Generally speaking, the ordinance here in question, which was approved September 8, 1948, covers substantially the same ground and has the same objectives as the state statute.

The Act of 1945 provides that every proprietor of a public eating or drinking place must obtain a license from the health authorities of the city, borough, town, or first class township where such eating or drinking place is located, or from the State Department of Health where the location is in a township of the second class. A license may be issued only upon inspection [366 Pa. 378] of the premises, the facilities and the equipment by the licensor and upon their being found adequate to the protection of the public health and comfort of patrons. The State Department of Health is authorized to make such reasonable rules and regulations as may be deemed necessary for carrying out the provisions and intent of the act. There are several provisions prescribing sanitary requirements in regard to the health of the employees who handle food or drink, the laundering of towels and napkins, the washing of dishes and glasses, the cleanliness of kitchens, dining rooms, cellars and refrigerators. There is a clause to the effect that ‘ Any proprietor who, after investigation made by the licensor, has failed or refused after a reasonable interval to correct conditions found to constitute a violation of this act, or of the regulations of the department pertaining to public eating or drinking places, shall have his license revoked.’ 35 P.S. § 655.11.

The city's ordinance is entitled ‘ An Ordinance to carry into effect in the City of Pittsburgh the provisions of the Act of Assembly of 1945, P.L. 926, to safeguard the public health within the city of Pittsburgh; defining restaurant * * * etc.; requiring permits for the operation of such establishments; prohibiting the sale of adulterated, unwholesome or misbranded food or drink; regulating the inspection, grading, regrading and placarding of such establishments, the enforcement of this ordinance; providing for the examination of employees; regulating the construction, reconstruction and alteration of restaurants, and the fixing of penalties.’ It provides that the director of the city's Department of Public Health shall require inspections to be made of all public eating

Page 619

and drinking places within the City of Pittsburgh at least twice a year, or more often if necessary, for the purpose of determining whether the proprietors are complying with the requirements of the Act of Assembly and [366 Pa. 379] the ordinance. It is made unlawful for any person to operate a restaurant in the city without obtaining a permit from the local Department of Public Health. It is provided that restaurants should be graded as ‘ A’, ‘ B’ or ‘ C’ restaurants. Grade ‘ A’ restaurants are defined as those which comply with all the sanitary requirements specified...

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