Gill v. City of Sharon, 34 Pa. D. & C.2d 270

McKay, J., In this case plaintiffs seek to enjoin the City of Sharon from interfering with its business operation in liquidating its stock of electrical merchandise at its store on South Main Avenue in the City of Sharon. The case came on for preliminary hearing on August 26, 1964, at which testimony was taken on behalf of plaintiffs and defendants.

It appeared from the testimony that plaintiffs had conducted what is known ás a “going out of business” sale on their said premises from May 5 to July 5, 1964, and that during those two months they substantially complied with the requirements of the Act of July 31,1963, P. L. 410, which lays down the conditions under which such sales may be lawfully conducted, including the application for a permit, the furnishing of a bond, and the like.

The present controversy arose when, after that period, plaintiffs continued to do business at the same location, a procedure which, in our opinion, the law is designed to prevent. It was not plaintiffs’ intention to defraud the public by so doing, but they were of the opinion that they had the right to continue with their sale for at least a reasonable period until they had disposed of their merchandise, provided they did not continue to advertise their continued operation as a “going out of business” sale.

During the hearing it developed that, while plaintiffs did not advertise generally after July 6th, that they were going out of business, they did not eliminate a painted notice to that effect, which appeared on the side of their building until shortly before the hearing.

In our opinion, plaintiffs violated the above-mentioned statute in continuing to do business at the same premises after July 5th, but we are equally satisfied that they did so in good faith, under the belief that they had the legal right to continue to attempt to dispose of their merchandise in that place as long as they did not advertise in such a way as to misrepresent the nature of their operation. Inasmuch as this is a case of first impression in Pennsylvania, construing the Act of 1963, and, in the absence of such

interpretation, plaintiffs were not aware that they violated the statute, but believed in good faith that they were complying with it, we are disposed to use our equitable powers so as to do justice as nearly as possible in the case before us and to give plaintiffs a reasonable time within which to close out their business. This disposition of the present case must not, however, be taken as a precedent for other persons who in the future attempt to close out their business in the same manner that these plaintiffs have done.

In any future cases, the maxim, ignorance of the law excuses no man, will be applied and the penal provisions of the act should be enforced in ordinary course. Order Now, August 31,1964, it is ordered and decreed that the City of Sharon and their police officers are enjoined from proceeding criminally or civilly against plaintiffs under the Act of July 31, 1963, P. L. 410, prior to November 1,1964, until which time plaintiffs may proceed to liquidate their merchandise at their Main Avenue store in the City of Sharon, unless plaintiffs again advertise their operation as a “going out of business” sale.

The use of such terms in advertising as “clearance sale,” “surplus store liquidation sale,” “special purchase sale,” or similar language shall not be interpreted as a “going out of business sale.” The costs shall be paid by plaintiffs. Otis W. Erisman, Frank F. Truscott, C. Leo Sutton, and Frank 0. Schilpp, for exceptants. Hardy Williams and Julian A. Cook, contra.