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COMMONWEALTH v. DIMEGLIO (04/16/56)

April 16, 1956

COMMONWEALTH
v.
DIMEGLIO, APPELLANT.



Appeals, Nos. 72 and 73, Jan. T., 1956, from judgments of Superior Court, Nos. 80 and 81, Oct. T., 1954, affirming 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 DeMeglio. Judgment reversed.

COUNSEL

Lewis H. Van Dusen, Jr., with him Ernest L. Nagy, Henry S. Drinker and Arthur D. Wingebach, for appellants.

Lois G. Forer, Deputy Attorney General, with her Herbert B. Cohen, Attorney General, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 385 Pa. Page 121]

OPINION BY MR. JUSTICE CHIDSEY

These appeals involve the construction and application of the Act of May 13, 1909, P.L. 520, as amended,

[ 385 Pa. Page 12231]

PS ยง 1 et seq., known and hereinafter referred to as the General Food Law.

Appellants were convicted in a summary proceeding before a justice of the peace on a charge of violating the General Food Law and the regulations of the Department of Agriculture published in connection therewith, by offering for sale lemon pies containing artificial color. The Court of Quarter Sessions of Delaware County allowed an appeal and after a hearing de novo without jury at which extensive testimony was taken, defendants were again found guilty. The court en banc dismissed defendants' motion in arrest of judgment and later sentences of fines and costs were imposed. Appeals were taken to the Superior Court which affirmed the judgment of the court below in an opinion reported in 179 Pa. Superior Ct. 472, 117 A.2d 767. We allowed appeals from the decision of the Superior Court.

Appellants, Frank DiMeglio and Nick DiMeglio, are the proprietors of a restaurant and cafeteria business in the City of Chester. A representative of the Department of Agriculture in the regular course of his duties visited appellants' restaurant and obtained two pieces of limon pie which were being held for sale to the general public. It is not disputed that these pieces of pie contained U.S. Certified Color in the form of artificial coal tar dye.*fn1 They had been baked by the appellants and were made by adding a certain amount of eggs and water to a pie filling mix known as "Jell-O Lemon Flavor Pie Filling and Pudding". This mix was made by the General Foods Corporation in New York where it is packaged and shipped to the appellants in five-pound

[ 385 Pa. Page 123]

    packages, the label of which specified that U.S. Certified Color is contained therein.*fn2 It was conceded by the Commonwealth at the trial that the presence of artificial color did not make the pies ...


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