Bertera's Hopewell Foodland, Inc. v. Masters

Decision Date28 November 1967
Citation236 A.2d 197,428 Pa. 20
PartiesBERTERA'S HOPEWELL FOODLAND, INC., Appellant, v. Robert J. MASTERS, District Attorney of Beaver County, John A. Krzton, Chief County Detective of Beaver County, Louis Police and Steve D. Mihalic, County Detectives of Beaver County and Other Municipal and State Law Enforcement Officers, All members of a Class.
CourtPennsylvania Supreme Court
Hubert I. Teitelbaum, Martin M. Sheinman, Morris, Safier & Teitelbaum, Pittsburgh, John Allan Conte, Conte & Courtney, Baden, for appellant

Robert J. Masters, Dist. Atty., Beaver, for appellees.



MUSMANNO, Justice.

The plaintiff, Bertera's Hopewell Foodland, Inc., owns a supermarket in Hopewell Township, Beaver County, which, at the beginning of this litigation, employed 60 persons, 40 of whom worked in the establishment on Sundays. The District Attorney of Beaver County, Robert J. Masters, informed Bertera's Foodland that if it continued to operate on Sunday, he would prosecute under the 'Sunday Closing Laws' of June 24, 1939, P.L. 872, Sec. 699.15, amended September 27, 1961, P.L. 1695, Sec. 1, 18 P.S. § 4699.15, which prohibits, with certain exceptions, the sale on Sunday of meat, produce and groceries.

The plaintiff refused to cease Sunday operation, claiming that the Amendment of 1961, above cited, was unconstitutional in that it violated the 14th Amendment to the Constitution of the United States and Article III, Sec. 7 of the Pennsylvania Constitution, P.S., averring it to be vague, indefinite, failed in equal protection and was not based on real and substantial differences which are reasonably related to the purpose of the law. The plaintiff went into the Court of Common Pleas of Beaver County to seek an injunction restraining the District Attorney and other law prosecuting officers in the county, from enforcing the statute in question.

The lower Court held that the statute was constitutional, the injunction was denied and the Complaint dismissed. The plaintiff appealed.

We are satisfied that Equity has jurisdiction. (Adams v. City of New Kensington, 357 Pa. 557, 55 A.2d 392; Harris-Walsh, Inc. v. Borough of Dickson City, 420 Pa. 259, 216 A.2d 329.)

The Act of September 27, 1961, P.L. 1695, provides that:

'Whoever engages in the business of selling or otherwise dealing at retail in fresh meats, produce and groceries on Sunday shall, upon conviction thereof in a summary proceeding for the first offense, be sentenced to pay a fine of not exceeding one hundred dollars ($100), and for the second or any subsequent offense committed within one (1) year after conviction for the first offense, be sentenced to pay a fine of not exceeding two hundred dollars ($200) or undergo imprisonment not exceeding thirty (30) days in default thereof.'

This Act is one of the many postscripts to the original Pennsylvania Sunday Closing Law enacted in the earliest days of the Commonwealth, that is, the Act of April 22, 1794, 3 Sm.L. 177, and which merged into the now parent act of June 24, 1939, P.L. 872. From time to time the original Act of 1794 has been amended to allow wholesome entertainment and recreation on Sunday. 1 Its original strict provisions were also relaxed so as to permit the operation of certain businesses reasonably necessary for the comfort and convenience of the people, without detracting from the nature of Sunday, which was, and still remains, dedicated to the three R's: Religion, Rest and Recreation.

Obviously there could not be much rest or recreation for a person on Sunday if he could not obtain food on that day. While, of course, everybody should foresee on Saturday that he would need to eat on Sunday, and therefore should lay in a supply of provisions for the morrow, yet circumstances could prevent a realization of that anticipation and one should not be subjected to the hardship of fasting when, without any defilement of the pure Sabbath atmosphere, he could still obtain the required provender to sustain him over the weekend. Accordingly, the Legislature, in the Act of 1961, declared that:

'This section shall not apply to any retail establishment employing less than ten persons or to any retail establishment where fresh meats, produce and groceries are offered or sold by the proprietor or members of his immediate family or employing less than ten persons nor shall it apply to any retail establishment where food is prepared on the premises for human consumption.'

We thus have three exceptions to the application of the Act, which, for convenience in discussion, we will number (1) where the store employs no more than 9 persons; (2) where the store is owned and run by a person and members of his immediate family (or employs no more than 9 The plaintiff argues at length that a statute so vague that men of common intelligence must guess at its meaning violates due process. It wheels into play a battery of decisions to support this position--all so unnecessarily. Obviously, if a statute is printed in Chinese or is proclaimed in such badly expressed English that one cannot learn from it what is permitted and what is prohibited, it cannot be enforced. Instead of emphasizing the obvious, the plaintiff should show wherein the statute is vague. It attempts to do this by aiming its artillery of argumentation against the three exceptions in the Act, but its aiming is faulty because it does not set its sights in accordance with the criteria laid down in the Statutory Construction Act (May 28, 1937, P.L. 1019, Art. IV, 46 P.S. § 551), which declares that in interpreting a law one must take into consideration, inter alia,

persons); (3) where the establishment prepares food on its premises for eating purposes.

'(1) the occasion and necessity for the law;

(2) the circumstances under which it was enacted;

(3) the mischief to be remedied;

(4) the object to be attained;

(5) the former law, if any, including other laws upon the same or similar subjects;

(6) the consequences of a particular interpretation;

(7) the contemporaneous legislative history * * *'

The plaintiff in its analysis and interpretation of the law of 1961 does not discuss the 'occasion and necessity for the law', it says nothing about 'the object to be attained,' it wholly ignores the 'former law' and those 'other laws upon the same or similar subjects.' The plaintiff treats the law of 1961 as an entity wholly isolated from any other legislation, but the enactment of 1961, to begin with, is but an amendment to another law. It is a branch grafted to the original tree, and who can determine the nature of the resulting fruit without studying the trunk and the roots of the original plant? The Act of 1961, as already stated, is an amendment of the Act of 1939, which is but a descendant of the original Act of 1794, which declared that:

'If any person shall do or perform any worldly employment or business whatsoever on the Lord's day, commonly called Sunday, works of necessity and charity only excepted, or shall use or practice any unlawful game, hunting, shooting, sport, or diversion whatsoever, on the same day, and be convicted thereof, every such person, so offending, shall for every such offence, forfeit and pay four dollars, to be levied by distress; or in case he or she shall refuse or neglect to pay the said sum, or goods and chattels cannot be found whereof to levy the same distress, he or she shall suffer six days' imprisonment in the house of correction of the proper county: Provided, always, that nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, lodging-houses, inns, and other houses of entertainment, for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers or persons removing with their families on the Lord's day, commonly called Sunday, nor to the delivery of milk or the necessaries of life before nine of the clock in the forenoon, nor after five of the clock in the afternoon, of the same day.'

This Act of 1794 itself traces an ancestry back to the Ten Commandments fulminated from the smoking top of Mt. Sinai, proclaiming in the Fourth provision thereof:

'Remember the Sabbath day to keep it holy; six days shalt thou labor and do all thy work; but the seventh day is the This divine pronouncement became part of the Common Law inherited by the thirteen American colonies and by the sovereign States of the American union. William Blackstone, in his immortal Commentaries, declared:

Sabbath of the Lord thy God. In it thou shalt not do any work.'

'the keeping one day in seven holy, as a time of relaxation and refreshment, as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of all classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit. It enables the industrious workman to pursue his occpation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labor, without any stated times of recalling them to the worship of their Maker.' (4 Bl.Comm. 63)

Before William Penn left England for the sylvania, of which he was proprietor, he and his fellow-Quakers adopted on May 5, 1682, a code of laws, the 36th of which reads:

'That according to the good example of primitive Christians, and for the ease of creation, every first day of the week, called Sunday, people shall abstain from their common daily labor, that they may better dispose themselves to worship God according to their understanding.'

The first law enacted by the Quakers, (December 7, 1682)...

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4 cases
  • Kroger Co. v. O'Hara Tp.
    • United States
    • Pennsylvania Supreme Court
    • 5 d4 Outubro d4 1978
    ...recompense for their labors and an appropriate period of time for rest and recuperation and for intimate companionship with their families." Id. early as 1848 this Court stated the need for such a day: "All agree that to the well-being of society, periods of rest are absolutely necessary. T......
  • Kroger Co. v. O'Hara Tp.
    • United States
    • Pennsylvania Supreme Court
    • 5 d4 Outubro d4 1978
    ...872, § 699.4. See Chadwick v. Stokes, 162 F.2d 132, 133 (3d Cir. 1947) (reprinting text of 1939 Act); Bertera's H. Foodland, Inc. v. Masters, 428 Pa. 20, 26, 236 A.2d 197, 200 (1967) (reprinting text of 1794 This "parent" Act of 1939, however, was not to be the only legislative enactment wh......
  • City of Warwick v. Almac's, Inc.
    • United States
    • Rhode Island Supreme Court
    • 19 d5 Março d5 1982
    ...Attorney, 267 Md. 501, 298 A.2d 427, cert. denied, 412 U.S. 915, 93 S.Ct. 2733, 37 L.Ed.2d 141 (1973); Bertera's Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 236 A.2d 197 (1967), cert. denied, 390 U.S. 597, 88 S.Ct. 1261, 20 L.Ed.2d 158 (1968). Moreover, the Court has recently reaffirmed......
  • Woonsocket Prescription Center, Inc. v. Michaelson
    • United States
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    • 27 d2 Julho d2 1976
    ...267 Md. 158, 298 A.2d 427 (Md.1973), appeal dis'd, 412 U.S. 915, 93 S.Ct. 2733, 37 L.Ed.2d 141 (1973); Bertera's Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 236 A.2d 197 (1967), appeal dis'd, 390 U.S. 597, 88 S.Ct. 1261, 20 L.Ed.2d 158 (1968). Cf. Hicks v. Miranda, 422 U.S. 332, 344-345......

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