Pittsburgh v. Ruffner
| Decision Date | 31 January 1939 |
| Docket Number | 87-1939 |
| Citation | 134 Pa.Super. 192,4 A.2d 224 |
| Parties | Pittsburgh v. Ruffner, Appellant |
| Court | Pennsylvania Superior Court |
Argued November 15, 1938.
Appeal from order of County Court, Allegheny Co., 1938, No. C 220 in case of City of Pittsburgh v. J. S. Ruffner.
Appeal to county court from summary conviction before alderman. Before Soffel, J.
The facts are stated in the opinion of the Superior Court.
Judgment entered adjudging defendant guilty. Motion to open judgment and for judgment of "not guilty" on whole record or for a new trial refused. Defendant appealed.
Error assigned was order refusing defendant's motion.
Appeal quashed.
O. R Moyle, with him Samuel J. Feigus, for appellant.
Anne X Alpern, First Assistant City Solicitor, with her Crawford Scott, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.
The appellant in this case was arrested on February 14, 1938 on a warrant issued by Alderman Maloney, of the City of Pittsburgh, charged with violating the ordinance of that city approved January 8, 1921, known as Ordinance No. 2, Series 1921, recorded in Ordinance Book Vol. 32, p. 128, ( ordinance approved December 4, 1886, as already amended). This ordinance provides that for the protection of the public and to guard against fraud and imposition, no person shall engage in the business of hawking, peddling or selling merchandise of any kind within the limits of the City of Pittsburgh, without having taken out a license therefor to sell or offer to sell such articles, and that all persons making sales or soliciting orders for the sale of goods or merchandise from house to house or in buildings within the limits of the City of Pittsburgh shall be required to register with the Bureau of Police and secure a permit from the Superintendent of Police; and subjects persons selling or offering to sell or soliciting orders from house to house for such goods or merchandise, without first having obtained such permit, to a fine of $ 50, in a proceeding for summary conviction, and in default of payment thereof to imprisonment for a period not exceeding thirty days.
A hearing was had before the alderman on February 15, 1938, at the close of which the alderman found the defendant guilty and sentenced him to pay a fine of $ 50 and costs, and in default of payment thereof, to be committed to the Allegheny County Jail for thirty days.
On February 21, 1938 defendant presented a petition to the County Court of Allegheny County praying for the allowance of an appeal, which was allowed, bond to be filed in the sum of $ 100 -- which was done -- and hearing fixed for March 18, 1938.
The hearing was duly had before Judge Soffel of the county court on March 18. Witnesses were sworn whose testimony established that the defendant on February 14, 1938 solicited George H. Dennison, manager of the Better Business Bureau, in his office in the Oliver Building in the City of Pittsburgh, to buy certain books and pamphlets purporting to be issued by an organization known as Jehovah's Witnesses, and sold him three pamphlets at five cents each and two books at twenty-five cents each, for which he gave defendant a one dollar bill and received thirty-five cents in change; and that said defendant had not registered with the Bureau of Police nor applied for or received a permit or license from the Superintendent of Police authorizing him to sell or solicit orders for such goods or merchandise.
The defendant offered in evidence a printed notice, -- 'To whom it may Concern' -- signed only by himself, certifying that he was an ordained minister and one of Jehovah's Witnesses sent out by Watch Tower Bible and Tract Society to call upon people at their homes and exhibit to them the message of the gospel in printed form; and moved to dismiss the action, inter alia, because "the ordinance is invalid as applied to the acts of the defendant in that it violates the clause of the Constitution of the Commonwealth of Pennsylvania providing for religious freedom and freedom of worship, and also the Fourteenth Amendment of the Constitution of the United States."
At the close of the hearing Judge Soffel found that defendant had made a sale of the books and pamphlets to Dennison and entered the following judgment:
This was a final and definitive judgment from which an appeal lay to this Court, under the Act of March 2, 1923, P. L. 3, and April 30, 1931, P. L. 73, the latter being an amendment of the County Court Act of May 5, 1911, P. L. 198, which in section 6, clause (c), conferred exclusive jurisdiction on the county court in all cases of appeals from summary convictions in Allegheny County. See 17 PS sec. 626.
Where appeals have been allowed from summary convictions pursuant to Art. V, sec. 14 of our Constitution -- see Act of April 17, 1876, P. L. 29, Acts of July 11, 1917, P. L. 771 and April 1, 1925, P. L. 98 --, the judgment entered by the judge of the court of quarter sessions, or judge of the county court, hearing the appeal de novo without a jury, is the final judgment from which an appeal must be taken within the time fixed by law, to wit, forty-five days for appeals from the quarter sessions (Act of May 11, 1927, P. L. 972) and three months from the county court (in accordance with appeals from the common pleas, Act of April 30, 1931, P. L. 73). See Com. v. Preston, 92 Pa.Super. 159; Com. v. Benson, 94 Pa.Super. 10; Com. v. Ahlgrim, 98 Pa.Super. 595; Com. v. Bertolette, 101 Pa.Super. 334; Com. v. Devenney, 103 Pa.Super. 83, 156 A. 809; Com. v. Cohen, 103 Pa.Super. 496, 157 A. 216; City of Scranton v. Noll, 108 Pa.Super. 94, 164 A. 850; Com. v. Wanamaker, 128 Pa.Super. 528, 194 A. 681; Com. v. Long, 276 Pa. 154, 120 A. 125. It has never been the practice to have such judgment reviewed by the court in banc before taking an appeal, as in the ordinary trial of civil issues.
Notwithstanding this, the defendant, on March 21, 1938, moved the court to open the judgment and for judgment of 'not guilty' on the whole record or for a new trial. No rule staying or suspending the judgment of March 18, 1938 was entered or allowed, pending the consideration of the motion, which after continuance of a month and twelve days and oral argument was refused on June 28, 1938. On July 14, 1938 defendant appealed to this court.
The three months' limitation for taking an appeal from the judgment of March 18, 1938 expired on June 18, 1938 and the appeal was, in consequence, too late and will be quashed. See Bobbitt's Est., 131 Pa.Super. 386, 200 A. 279, where the subject was fully considered; Mayer v. Brimmer, 15 Pa.Super. 451; Estate of Rachel Core, 113 Pa.Super. 388, 174 A. 9. As the statute is mandatory, that "no appeal shall be allowed in any case" unless taken within the time fixed from the entry of the judgment, its provisions are binding whether the other side moves to quash or not; and the cases cited by appellant in his supplemental brief are all distinguishable on their facts, when read and understood. The procedure on an appeal from a summary conviction bears no likeness to that prescribed for the trial of civil cases without a jury, by agreement under the Act of April 22, 1874, P. L. 109.
Because of the insistence of appellant's counsel we have, however, considered the merits of the case and are of opinion that the court below rightly held that the ordinance in question does not violate either section 3 or section 7 of Article I of our State Constitution [1] or section 1 of the 14th amendment of our Federal Constitution [2]; that is, that it does not unlawfully infringe upon the appellant's constitutional right of freedom of religious worship or the freedom of the press.
The discriminating opinion of Judge Soffel fully sustains her judgment, and the appeal might well be dismissed upon it without further elaboration; but, although perhaps supererogatory, we will supplement it by some additional matters not contained in her opinion.
The ordinance in question cannot, by any stretch of the imagination, be held to be directed against freedom of worship. It is concerned with hawking and peddling merchandise, and with selling merchandise from house to house and in buildings. It does not discriminate against non-residents, nor is it limited to any particular kind of merchandise; it is not a revenue measure. It is a police measure intended to protect householders and occupants of buildings from entrance into their homes and offices by persons unable to show a good reputation for honesty and integrity, who, under the guise of selling goods and merchandise, may use such entrance for ulterior and improper purposes. The fact that the caller may be an ordained minister is not decisive of the question. See Com. v. Gregory, 132 Pa.Super. 507, 1 A.2d 501 (appeal refused by Supreme Court, December 21, 1938). This appellant is perfectly free to worship God according to the dictates of his own conscience, separately or with his family and co-religionists, in his home or theirs, and in church,...
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