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July 21, 1955


Appeals Nos. 80 and 81, Oct. T., 1954, from judgments of Court of Quarter Sessions of Delaware County, June T., 1952, No. 6, in case of Commonwealth of Pennsylvania v. Frank DiMeglio and Nick DiMeglio. Judgments affirmed; reargument refused September 6, 1955. Appeals by defendants from summary conviction before justice of the peace for violation of the General Food Law. Before TOAL, J.


Lewis H. VanDusen, Jr., with him Henry S. Drinker, Arthur D. Wingebach, and Lester E. Waterbury, for appellants.

L. G. Forer, Deputy Attorney General, with her Harry F. Stambaugh, Special Counsel, Samuel M. Jackson, Deputy Attorney General and Herbert B. Cohen, Attorney General, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, and Wright, JJ. (woodside and Ervin, JJ., absent).

Author: Wright

[ 179 Pa. Super. Page 474]


Frank and Nick DiMeglio, proprietors of a restaurant and cafeteria in the City of Chester, were convicted in a summary proceeding before a Justice of the Peace on a charge of violating the General Food Law (Act of May 13, 1909, P.L. 520, 31 PS ยง 1, et seq.) by offering for sale lemon pies "adulterated with yellow coal tar color".The Court of Quarter Sessions of Delaware County allowed an appeal and heard the case de novo. Subsequent to the taking of the testimony, the hearing Judge entered an order and decree (June 9, 1953) finding defendants guilty and directing that they appear ten days later for sentence. Within that period defendants filed a motion in arrest of judgment.

[ 179 Pa. Super. Page 475]

This motion was dismissed (November 24, 1953) and sentences of fine and costs were later imposed. These appeals followed.

Section 3 of the General Food Law provides, inter alia, that "an article of food shall be deemed to be adulterated ... Fourth. If it be mixed, colored or changed in color ... whereby damage or inferiority is concealed, or so as to deceive or mislead the purchaser; or if by any means it is made to appear better or of greater value than it is". Section 8 of the statute sets forth that the "Department of Agriculture of the State shall be charged with the enforcement of the provisions of this act and shall make rules and regulations for the proper enforcement thereof, including rules and regulations setting up definitions and standards of articles of food". Regulation 1003 of the Department provides as follows: "Bakery products ... shall be free from added color, either of synthetic (coal tar) or natural origin. The addition of pumpkin, squash, carrots or other highly colored ingredients to bakery products, which may give the fictitious appearance of egg richness, is prohibited regardless of labeling".

In limine, we cannot agree with appellants that any controlling facts were first found in their favor. In his opinion of June 9, 1953, the hearing Judge did state: "The facts proved by the defense in this case are as follows". It clearly appears, however, that he was there contrasting the theory of the defense with the theory of the Commonwealth. Under the Act of April 18, 1919, P.L. 72, 12 PS 1165, it is our duty to review the testimony in order to ascertain whether there was sufficient evidence to sustain the order of the Court below. The evidence must be viewed in the light most favorable to the Commonwealth, which has the verdict: Commonwealth v. Stroik, 175 Pa. Superior Ct. 10, 102 A.2d 239.

[ 179 Pa. Super. Page 476]

The pies in question were made from lemon pie filling purchased by appellant from the General Foods Corporation in five pound packages under the name "Jell-O Brand Lemon Flavor Pie Filling and Pudding". The label indicates that the ingredients are sugar, cornstarch, citric acid, salt, natural lemon flavor and U.S. Certified Color (containing coal tar), and directs purchasers to add fifteen egg yolks and a quantity of water to make sufficient filling for ten nine-inch pies. Dr. Harrisson, an expert chemist whose qualifications were conceded by appellants, testified that "natural lemon flavor" means lemon oil; that lemon oil is extracted from the rind and has a very slight yellow tinge which "would not carry into the finished product"; that a mixture of cornstarch, sugar, and lemon oil would produce a pie which would be "very insipid"; that acid must be added to make it acceptable, either natural citric acid or lemon juice; that, in either event, such a pie would be essentially white in color, nor would the use of ground lemon rind create a materially deeper yellow cast; and that the inclusion of egg yolks effects a more acceptable result, which would be "yellow in accordance with the amount of eggs you put in the product". Edward E. Hanscom, Jr., prominently identified with the baking industry for many years, testified that "a great proportion of the coloring" in his lemon pies "comes completely from egg yolks"; that the impression in the public mind "is the ...

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