Appeal from orders of Superior Court, Oct. T., 1967, Nos. 166, 167, 168 and 170, affirming judgments of Court of Oyer and Terminer and Quarter Sessions of Philadelphia County, March T., 1964, Nos. 1934, 1940, 1942 and 1949, in case of Commonwealth v. Max Feinberg.
Bernard L. Segal, with him Needleman, Needleman, Segal and Tabb, for appellant.
James D. Crawford, Assistant District Attorney, with him Jay S. Gottlieb, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Roberts.
Appellant Max Feinberg owned and operated a cigar store in the skid-row section of Philadelphia. One of the products he sold was Sterno, a jelly-like substance composed primarily of methanol and ethanol and designed for cooking and heating purposes. Sterno was manufactured and sold in two types of containers, one for home use and one for industrial use. Before September, 1963, both types of Sterno contained approximately 3.75% methanol, or wood alcohol, and 71% ethanol, or grain alcohol; of the two types of alcohols,
methanol is far more toxic if consumed internally. Beginning in September of 1963, the Sterno company began manufacturing a new type of industrial Sterno which was 54% methanol. The cans containing the new industrial Sterno were identical to the cans containing the old industrial Sterno except in one crucial aspect: on the lids of the new 54% methanol Sterno were imprinted the words "Institutional Sterno. Danger. Poison. For use only as a Fuel. Not for consumer use. For industrial and commercial use. Not for home use." A skull and crossbones were also lithographed on the lid. The carton in which the new Sterno cans were packaged and shipped did not indicate that the contents differed in any respect from the old industrial Sterno.
According to its records, Sterno Corporation sent only one shipment of the new Sterno to the Philadelphia area; that shipment went to the Richter Paper Company and was received on December 17, 1963. Charles Richter, president of the firm, testified that his company, in turn, made only one sale of the new industrial Sterno, and that was to appellant. Richter testified that his records indicated that appellant received the Sterno on December 21 and, since Richter had not opened any of the cartons, he was unaware that he was selling appellant a new type of industrial Sterno. On December 27, Richter received a call from appellant informing him that the cartons contained a new type of Sterno and that appellant wished to return the portion of his order that he had not sold. The unused cartons were picked up by Richter's deliveryman the next day.
Meanwhile, between December 21 and December 28, appellant had sold approximately 400 cans of the new industrial Sterno. Between December 23 and December 30, thirty-one persons died in the skid-row area
as a result of methanol poisoning. In many of the cases the source of the methanol was traced to the new industrial Sterno. Since appellant was the only retail outlet of this type of Sterno in Philadelphia, he was arrested and indicted on thirty-one counts charging involuntary manslaughter and on companion bills charging violations of the Pharmacy Act (Act of September 27, 1961, P. L. 1700, § 1 et seq., 63 P.S. § 390-1 et seq.).*fn1
Appellant was convicted on seventeen counts of involuntary manslaughter and on twenty-five counts of violating the Pharmacy Act by Judge Charles L. Guerin, sitting without a jury. Judge Guerin held that appellant had violated the Pharmacy Act and that, therefore, he was guilty of a misdemeanor-manslaughter in each of the seventeen cases. Five of the manslaughter convictions were appealed to the Superior Court which affirmed four of them, although on a different theory. Commonwealth v. Feinberg, 211 Pa. Superior Ct. 100,
A.2d 913 (1967). In writing for a six-judge majority, Judge Montgomery held that appellant had not violated the Pharmacy Act and, therefore, was not guilty of a misdemeanor-manslaughter, but that the evidence justified the conclusion that appellant was guilty of involuntary manslaughter. Judge Hoffman dissented, maintaining that the Superior Court should not affirm the convictions on the grounds of involuntary manslaughter when the trial court had apparently rested its decision solely on the violation of the Pharmacy Act.
The first question we must answer is whether appellant violated the Pharmacy Act. The Act defines any product containing more than one per cent methanol as a poison and provides that any person selling such a product must properly label the container, warn the purchaser of the dangerous propensities of the product and satisfy himself that the purchaser will use the product for a legitimate purpose.
Certain facts are clear in this case. First, the Sterno sold by appellant is a poison as defined by the Act. Second, appellant did not comply with the requirements outlined above. Judge Guerin held that this was enough to justify a conviction under the Act; the Superior Court unanimously disagreed.*fn2 Judge Montgomery wrote, "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 ...