G. Clinton Fogwell, Jr., Asst. Deputy Atty. Gen., Henry M. Bruner, Chief Counsel, Harrisburg, Robert E. Woodside, Atty. Gen., for appellant.
Mark E. Garber, Carlisle, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 181]
Defendant was found guilty of a violation of General Order No. A-191 effective May 1, 1946, of the Pennsylvania Milk Control Commission by a justice of the peace, and a fine of $25 was imposed for delivery of milk to his customers on each of three successive days in July, 1949. The order prohibits any milk dealer within the Harrisburg Milk Marketing Area, Area No. 8, from making a delivery of milk to a retail customer more often than once in a 48-hour period, and is known as the 'every other day delivery order.' On appeal allowed, the case was submitted to the Court of Quarter Sessions of Cumberland County for judicial determination on stipulated facts by the Deputy Attorney General representing the Commonwealth, and defendant's counsel. The court below adjudged the defendant not guilty as follows: 'And now, April 19, 1951, the appeal is sustained, and the defendant, William Hollinger, is found not guilty. Costs to be paid by the County of
[ 170 Pa. Super. Page 182]
Cumberland.' The Commonwealth appealed to this Court.
The appeal must be quashed, as the Commonwealth had no right to appeal in this case. 'It is well settled in this State that the Commonwealth cannot appeal from a judgment of acquittal in criminal prosecutions, except in cases of nuisance, forcible entry and detainer, and forcible detainer. Act of May 19, 1874, P.L. 219, 19 P.S. § 1188. And this is so whether the prosecution be by indictment (Commonwealth v. Coble, 9 Pa. Super. 215; Commonwealth v. Stillwagon, 13 Pa. Super. 547; Commonwealth v. Weber, 66 Pa. Super. 180), or by summary proceeding. Commonwealth v. Preston, 92 Pa. Super. 159; Commonwealth v. Benson, 94 Pa. Super. 10, 15-18; Commonwealth v. Ahlgrim, 98 Pa. Super. 595; Commonwealth v. Bertolette, 101 Pa. Super. 334; City of Scranton v. Noll, 108 Pa. Super. 94, 164 A. 850.' Commonwealth v. Obenreder, 144 Pa. Super. 253, 254, 19 A.2d 497, 498. See, also, Commonwealth v. Petersheim, 166 Pa. Super. 90, 70 A.2d 395; Commonwealth v. Kerr, 150 Pa. Super. 598, 29 A.2d 340.