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September 13, 1962


Appeals, Nos. 191 and 192, Oct. T., 1962, from judgments of Court of Quarter Sessions of Lancaster County, March T., 1961, No. 124, in case of Commonwealth of Pennsylvania v. Masters of Lancaster, Inc. et al. Judgments reversed.


John Milton Ranck, and Norman Diamond, of the Washington, D.C. Bar, with them Werner J. Kronstein, and Appel, Ranck, Levy & Appel, and Arnold, Fortas and Porter, of the Washington, D.C. Bar, for appellants.

Harold W. Budding, Assistant District Attorney, with him Alfred C. Alspach, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 199 Pa. Super. Page 38]


Masters of Lancaster, Inc., and Frederick W. Steinman, its vice president and store manager, were indicted in the Court of Quarter Sessions of Lancaster County on a charge of violating the provisions of Section 857 of The Penal Code, which proscribes the publication of untrue, false or misleading advertising. Act of June 24, 1939, P.L. 872, Section 857, 18 P.S. 4857. A demurrer to the indictment by Masters and a motion to quash by Steinman were dismissed, and the case proceeded to trial before Honorable WILLIAM G. JOHNSTONE, JR., and a jury. A demurrer to the Commonwealth's evidence was overruled, and points for binding instructions were refused. The jury returned a verdict of guilty as to both defendants. Motions in arrest of judgment and for a new trial were denied. Masters was sentenced to pay a fine of $200.00. Sentence as to Steinman was suspended. These appeals followed.

The statute in question reads in pertinent part as follows: "Whoever, with intent to sell or in any wise dispose of merchandise, securities, service, or any other thing ... makes, publishes, disseminates, or causes, directly or indirectly, the same to be made, published, disseminated, circulated, or placed before the public, in a newspaper or other publication ... an advertisement, announcement, or statement, of any sort regarding merchandise, security, investment, service or anything so offered to the public or concerning the quantity, quality, value, merit, use, present or former price, cost, reason for price, motive for sale, or concerning the method or cost of production or manufacture, or the possession of rewards, prizes or distinctions conferred, regarding such merchandise, security, investment, service or

[ 199 Pa. Super. Page 39]

    thing, which advertisement contains any assertion, representation, or statement of fact which is untrue, deceptive, or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue, deceptive, or misleading, is guilty of a misdemeanor".

The record discloses that, on March 16, 1961, in the Lancaster New Era, and on March 17, 1961, in the Lancaster Daily Intelligencer Journal, there appeared an advertisement of Masters of Lancaster, Inc. listing some forty items for sale. One of these items, the basis of the instant proceeding, was a 20" Rotary Moto-Mower with manufacturer's list price stated to be $69.95 and Masters' sale price $49.99. This mower actually did not have a manufacturer's list price, and in that regard the advertisement contained a statement which was untrue. Appellant Steinman had no specific part in preparing the advertisement. He testified that, as manager, he was ultimately responsible for everything which transpired in the store. The advertisement had been prepared by an assistant manager who had inadvertently used the list price of a 9" Super Edger-Trimmer, the article on the line immediately preceding the 20" Moto-Mower on the manufacturer's price sheet. It was shown that the same mower was offered for sale in two other retail stores in Lancaster County at substantially the same price given as the manufacturer's list price in Masters' advertisements.

The sole basis upon which appellants were convicted was that the advertisements contained a statement which, although in no sense deceptive, was technically untrue. This is not enough to sustain a conviction under the statute. It is fundamental that penal statutes must be strictly construed. See Act of May 28, 1937, P.L. 1019, Section 58, 46 P.S. 558; Commonwealth v. Willard, 179 Pa. Superior Ct. 368, 116 A.2d 751; Commonwealth v. Cunningham, 365 Pa. 68, 73 A.2d 705;

[ 199 Pa. Super. Page 40]

    applied without regard to the practical effect of the result.

In the words of the learned trial judge: "The case was submitted to the jury on the instruction that no intent to do anything wrong was necessary to a conviction and that the only question for the jury to determine was whether the defendants, or either of them, knew or by the exercise of reasonable care should have known that the advertisement was untrue". Such a literal construction of the statute carries it beyond the obvious purpose underlying its enactment. "Before one can be convicted of a crime his case must plainly and unmistakedly come within the provisions of the statute": Commonwealth v. Unkrich, 142 Pa. Superior Ct. 591, 16 A.2d 737. These appellants stand convicted of criminal conduct for publishing an advertisement which truthfully informed the public that a $20.00 bargain was available at the Masters' store. The uncontradicted testimony in the record establishes that the "going" price for this particular model of mower was approximately $69.95. The relatively immaterial misstatement in the advertisement that this was the "manufacturer's list price" warrants application of the maxim de minimis non curat lex. Cf. Bristol-Myers Co. v. Lit Bros., 336 Pa. 81, 6 A.2d 843. It is our view that the interests of justice require a reversal of the judgments below. See Commonwealth v. Buckley, 197 Pa. Superior Ct. 266, 177 A.2d 107.


Judgments reversed and appellants discharged.


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