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COMMONWEALTH v. FEINBERG (11/16/67)

decided: November 16, 1967.

COMMONWEALTH
v.
FEINBERG, APPELLANT



Appeals from judgment of Court of Oyer and Terminer and Quarter Sessions of Philadelphia County, March T., 1964, Nos. 1934, 1940, 1942, 1946, and 1949, in case of Commonwealth of Pennsylvania v. Max Feinberg.

COUNSEL

Seymour Kurland, with him Bernard Chanin, Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.

Gordon Gelfond, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J. Dissenting Opinion by Hoffman, J.

Author: Montgomery

[ 211 Pa. Super. Page 102]

These appeals are from judgments of sentence imposed following appellant's conviction on five charges of involuntary manslaughter.*fn1 They arose by reason of the deaths of five individuals*fn2 from methyl alcohol (methanol) poisoning due to their consumption of Sterno, a jelly-like substance prepared and intended

[ 211 Pa. Super. Page 103]

    for heating purposes. It is solidified alcohol popularly called "canned heat" but has additives specified by the United States government to render it unfit for drinking purposes.

Appellant Max Feinberg was the owner of a cigar store handling tobacco, candy, etc., in the skid-row section of Philadelphia and sold to residents of that area Sterno in two types of containers, one for home use and one for institutional use. Such sales were made under circumstances from which it could be reasonably concluded that appellant knew the purchasers were intending to use it for drinking purposes by diluting it with water or other beverages, and not for its intended use.*fn3 Prior to December, 1963 there had been no known fatal consequences resulting from this practice, presumably for the reason that the product then sold by appellant contained only four per cent methyl alcohol (methanol). However, on December 21, 1963 appellant bought from the Richter Paper Company ten additional cases of institutional Sterno containing seventy-two cans each, unaware that it contained fifty-four per cent methanol, although the lid of each container was marked "Institutional Sterno. Danger. Poison; Not for home use. For commercial and industrial use only", and had a skull and crossbones imprinted thereon. Nevertheless appellant ignored this warning and sold part of this supply in the same manner he had previously dispensed his other supply of the product. The containers of the regular Sterno and the institutional type previously sold contained no such warning and were merely marked "Caution. Flammable. For use only as a fuel." The only difference in the containers previously sold was

[ 211 Pa. Super. Page 104]

    that the institutional type was so marked but had no wrap-around label as was affixed to the container intended for regular use. Both containers were the same size, as were the containers sold after December 21st which did not contain wrap-around labels. Between December 23 and December 30, 1963 thirty-one persons died in this area as a result of methyl alcohol poisoning. After hearing of their deaths, appellant, on December 28, 1963 returned to the Richter Paper Company four cases and forty-two cans which remained unsold from the ten cases he had purchased on December 21, 1963, at which time he remarked about the change in markings on the cans. Appellant was the only purchaser in the Philadelphia area of this new institutional product from the Richter Company. The methanol content of institutional Sterno had been increased by the manufacturer from four per cent to fifty-four per cent in September, 1963 but the new product was not marketed until December, 1963. Richter received the first shipment of it on December 11, and another on December 17, 1963. The chemical contents of the new institutional product were not stated on the container; nor was the appellant informed otherwise of any change in the contents of that product except by the notice of its dangerous contents for home use, as previously recited.

It is the contention of the appellant that his convictions on the charges of involuntary manslaughter cannot be sustained either on the basis of a violation of the Pharmacy Act of September 27, 1961, P. L. 1700, § 1, 63 P.S. § 390-1 et seq. (pp), or as a result of any criminal negligence on his part. His first contention is based on the arguments that the Pharmacy Act is not applicable to sales of the product described in this case; that if it is covered, no violations of the act by appellant were proved, nor was it proved that he had knowledge of any violations.

[ 211 Pa. Super. Page 105]

The 1961 Pharmacy Act is a re-enactment of prior statutes with amendments, revisions, consolidations and repeals. It is titled, "An Act Relating to the regulation of the practice of pharmacy, including the sales, use and distribution of drugs and devices at retail; . . ." The earlier Act of 1887, P. L. 189, was "To regulate the practice of pharmacy and sale of poisons, and to prevent adulterations in drugs and medicinal preparations, . . ." The Act of 1917, P. L. 208, was "To regulate the practice of pharmacy and sale of poisons and drugs, and providing penalties for the violation thereof; . . ." Although the Acts of 1917 and 1887 describe a pharmacy as a retail drug store, or any place where drugs, medicines, or poisons are compounded, dispensed, prepared or sold at retail, whereas the 1961 Act describes the "Practice of pharmacy" as "the practice of that profession concerned with the art and science of preparing, compounding and dispensing of drugs and devices . . .", without the special mention of poisons, we note that each of these acts provides for special precautions to be taken in dispensing poisons. The word "devices" as found in the 1961 Act is new although it is used in The Drug, Device and Cosmetic Act of September 26, 1961, P. L. 1664, 35 P.S. § 780-1 et seq.

In the two earlier acts "poison" is defined in a general manner as "any drug, chemical or preparation, which, according to standard works on medicine or materia medica, is liable to be destructive to adult human life, in quantities of sixty grains or less." In the 1961 Act poisons are specifically named and described. Methyl alcohol and preparations containing one per centum or more of it, except when used as a preservative and not sold to the general public, is one of the enumerated poisons.

Appellant concedes that the new institutional product under consideration falls within the definition of

[ 211 Pa. Super. Page 106]

    poison set forth in the 1961 Act. However, he argues that the act was not intended to cover a product such as Sterno, which is manufactured to produce heat and is not a drug, medicine, device, etc., intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animal or to affect the structure or any function of the body of man or other animal. In support of his argument appellant cites the case of Boyd v. Frenchee Chemical Corporation, 37 F. Supp. 306 (E.D.N.Y. 1941), which held that the Act of 1917, previously mentioned, was not intended to cover a liquid shoe and fabric cleaner which might come within the general definition of a poison. The reason for that decision was that such a product was not such as was intended for the cure or prevention of illness in man or animal. He also cites an opinion of the Attorney General of Pennsylvania on phosphorous matches reported in 21 Pa. Dist. Rep. 554, which advised that phosphorous watches were not covered by the act for the same reason, although they were poisonous. The Boyd decision was subsequently referred to in Spruill v. Boyle-Midway, Inc., 308 F. 2d 79 (1962), which involved a furniture polish. It was criticized therein for the limited view taken by that Court on the subject of intended use of a manufactured product, but it did not comment on the correctness of the decision on the question whether liquid shoe and fabric cleaner was intended to be included in the Pennsylvania Act of 1917, P. L. 208, No. 119.

Our close study of the 1961 Pharmacy Act leads us to the conclusion that it was not intended to cover general commercial products but was limited to drugs and devices as defined in the act and that the provisions respecting poison are to be followed only when poisonous drugs or poisonous devices are sold in connection with the practice of pharmacy or incident thereto. The title to the bill as previously recited

[ 211 Pa. Super. Page 107]

    refers only to drugs and devices. Although poisons were included in the title to the earlier acts no mention is made of poisons in the title to the 1961 Act. The term "drugs" is defined therein in Section 2 though, 63 P.S. § 390-2:

"(3) 'Drugs' mean --

(i) Articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary.

(ii) Articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals.

(iii) Articles (other than food) intended to affect the structure or any function of the body of man or other animals", and

"(5) The term 'device' means instruments, apparatus and contrivances, including their components, parts and accessories, intended (i) for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals, or (ii) to affect the structure or any function of the body of man or other animals."

Sterno does not fall within the foregoing definitions of drugs or devices. It is a product intended by its manufacturers for heat producing purposes only and not for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animal, nor to affect the structure or function of the body of either. There is nothing in this record to indicate otherwise. It was not prepared ...


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