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.
[ 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. ...