Dissenting Opinion bt
Judge Rogers:I respectfully dissent from the majority’s holding that the appellant may not use the boiler built in 1927, brought to Pennsylvania in 1970 and not since removed from the Commonwealth.
In Empire Box Corp. of Stroudsburg v. Chestnut, 56 Dauph. 384, 54 D. & C. 162 (1945), the Dauphin County Court of Common Pleas held that unfired pressure vessels built outside Pennsylvania before pressure vessels were made subject to the Pennsylvania Boiler Law and brought into the state before that time were not barred from use within the state by Section 4 of the Boiler Law. The court construed the statute as being intended to have prospective, not retrospective, *332effect in accordance with accepted principles of statutory construction. The court went on, however, to consider the case of similar vessels built outside the state and not imported until after September 1, 1937, the effective date of the amendment making the Act applicable to unfired pressure vessels. The Commonwealth contended that such vessels were outlawed from use in Pennsylvania by Section 4. The court concluded that a construction of Section 4 which would treat unfired vessels differently based upon whether they were imported before or after the amendment would result in an unconstitutional classification of (1) unfired vessels not inspected during construction but located within the Commonwealth prior to September 1, 1937 (permitted) and (2) unfired vessels not inspected during construction and not located within the Commonwealth prior to September 1, 1937 (forbidden). The court saw no reason founded in public safety for this classification and concluded that a construction of Section 4 requiring it would offend the equal protection clause of the 14th Amendment to the United States Constitution. The court decided that Section 4, properly construed, did not apply to any unfired pressure vessel manufactured prior to September 1, 1937, “irrespective of their whereabouts at that time.” The case was affirmed per curiam by our Supreme Court, 352 Pa. 418, 43 A. 2d 88 (1945).
The proviso clause to Section 4 was added by the Act of December 22, 1959, P. L. 2007, and reads pertinently “Provided, that any boiler built prior to December 31, 1929 . . . and which [has] not been removed from the Commonwealth subsequent to such applicable date, shall not be required to be shop inspected.” In my view, this proviso recognized the rule of Empire Box that the Legislature could not provide and therefore did not intend to provide that pre-1929 boilers should be divided into two categories, one for those *333located within the state on December 31, 1929 and permitted to be used, and the other for those not located in the state on that date and not permitted to be used. I believe that the Legislature intended by the proviso to impose a further qualification — that is, that pre-1929 boilers once located in the state, whether before or after December 31, 1929, might not be reintroduced for use in the Commonwealth. The proviso says nothing about the location of pre-1929 boilers on December 31, 1929. It speaks only of removal from the state subsequent thereto. Since the pre-1929 boiler in this case has not been “removed from the Commonwealth subsequent to such applicable date” it is exempted thereby. The majority’s construction would permit the use of non-shop tested boilers built prior to 1929 and located in the state at that time and would forbid the use of identical boilers imported after that date, the result which in Empire Boos was properly found to be unconstitutional.
Judge Crumlish, Jr. joins in this dissent.
Dissenting Opinion by
Judge Blatt :I must respectfully dissent.
First, as to the boiler constructed in 1936. Section 4 of the Act of May 2, 1929, P. L. 513, as amended, 35 P.S. §1304 (the Boiler Law), provides that a boiler constructed after 1929 and “destined for use” in this Commonwealth must have been inspected during construction in order to be used in this Commonwealth. While this 1936 boiler was admittedly not inspected during construction, it was not then “destined for use” in this Commonwealth. By the majority’s own definition, “destined” means “bound for a certain destination.” If that definition is here applied, it seems to me that the 1936 boiler, being clearly not “destined for use” in Pennsylvania at the time of its construction, and actually destined at that time for use elsewhere, does *334not come within the provisions of Section 4 of the Boiler Law, and could now be used here provided that current inspection standards are met. I do not believe, therefore, that its licensure should have been denied.
As to the boiler constructed in 1927, I join in the dissenting opinion of Judge Rogers.