179 Pa. Super. 472 | Pa. Super. Ct. | 1955
Opinion by
Frank and Nick DiMeglio, proprietors of a restaurant and cafeteria in the City of Chester, were convicted in a summary proceeding before a Justice of the Peace on a charge of violating the General Food Law (Act of May 13, 1909, P. L. 520, 31 PS §1, et seq.) by offering for sale lemon pies “adulterated with yellow coal tar color”;. The Court of Quarter Sessions of Delaware County allowed an appeal and heard the case de • novo. ■ Subsequent -.to the taking of the testimony, the hearing Judge entered an order and decree (June 9, ,1953) finding defendants guilty and directing that they appear ten days later for sentence. Within that period defendants filed a motion in arrest of judgment.
Section 3 of the General Food Law provides, inter alia, that “an article of food, shall be deemed to be 'adulterated . . . Fourth. If it be mixed, colored or changed in color . . . whereby damage or inferiority is concealed, or so as to deceive or mislead the purchaser; or if,by any means it is made to-.appear better or of 'greater value than it is”. Section 8-of the statute sets forth that the “Department of Agriculture of the .State shall be charged with the enforcement of the 'provisions,.;of. this act and shall make rules arid regulations'for the proper enforcement thereof, including rules and .regu-' lations setting up definitions and staridards of articles' of food”. Regulation. 1003 of the Department provides as follows: “Bakery products ... shall be free from added color, either of synthetic (coal tar) or natural' origin. The addition of pumpkin; squash, carrots or other highly colored ingredients to bakery products, which may give the fictitious appearance of egg richness, is prohibited regardless of labeling”. ’ '
In limine, we cannot agree with appellants that ariy controlling facts were first found in their favor. Iir his opinion of June 9, 1953, the hearing Judge did state: “The facts proved by the defense in this case are as follows”. It clearly appears, however, that he was there contrasting the theory of the defense with the theory of the Commonwealth. ■ Under the Act of April 18, 1919, P. L. 72, 12 PS 1165, it is our duty to review the testimony in order to ascertain whether there was sufficient evidence to sustain the .'order of the Court below. The evidence -must be viewed in the. light most favorable to the Commonwealth, which has. the verdict: Commonwealth v. Stroik, 175 Pa. Superior Ct. 10, 102 A. 2d 239.
In our view, the court below was justified under all the evidence in finding (1) that the purpose and effect of the use of the artificial coal tar dye in the Jell-0 product was to conceal “inferiority”; (2) that purchasers of lemon pies made with the Jell-0 product are being “deceived” by the use of artificial color; and (3) that such pies are thereby “made to appear better and of greater value” than they are. Our conclusion is that the decision of the lower court should be affirmed. It will be necessary to go into considerable detail in order to discuss the five questions which appellants have raised.
Appellants’ first contention is that the addition of harmless U. S. Certified Color is not adulteration “when the purpose and effect of the addition is not to deceive consumers into believing it (a lemon pie) is something other than what it actually is, or that it contains something that it does not actually contain,
Appellants’ second contention is that there was no showing that the addition of artificial color “had the effect-of deceiving the ordinary consumer into believing the pie to be another well recognized and superior article which ■ is offered as. a standard for comparison". Principal reliance is placed on U. S. v. 88 Cases Bireley’s Orange Beverage, 187 Fed. 2d 967. There the Court of Appeals of the Third Circuit, construing that portion of the Federal Food, Drug, and Cosmetic Act which-provides that food is deemed to be adulterated if' any substance is added thereto to make “it appear better or of greater value than it is", said: “Without a finding that a marketable inferior product is likely
Appellants next ask (a) “can a single piece of competing pie serve as a standard of comparison particularly if there is no evidence as to how it acquired its color”, and (b) “can a witness testify as to the ingredients of a pie who has not participated in or supervised its mixture or baking”. Mr. Hanscom produced a pie baked in his bakery and testified as to the ingredients which went into it. Appellants’ objection is directed to the proposition that the witness did not have personal knowledge of the baking of the pie, nor of the ingredients it contained. However, Mr. Hanscom was testifying as to acts done in the regular course of his bakery business. The pie selected was not baked specially but was simply one taken from the shelf, out of the regular stock. As a witness with over 25 years experience operating a bakery, he was qualified to testify concerning the processes used therein. See Davis, Trustee v. Southern Surety Co., 302 Pa. 21, 153 A. 119; Gloeckler v. Imrie, 118 Pa. Superior Ct. 441, 179 A. 883. The basis of appellants’ complaint seems to be directed to the fact that some natural or artificial color may have been added to the Hanscom pie to give it its deep yellow color. However, Mr. Hanscom stated categorically that “no coloring of any kind” had been added to his sample pie. .
It should be further noted that the Pennsylvania legislation does not prevent the shipping into, or sale of the Jell-0 product within, this Commonwealth. Indeed, the product is freely sold for home use through
. Appellants further argue that. Congress has already-occupied this field of regulation by passage of-
Appellants’ final contention is that the prohibition violates Article I,- Section 9 and Article III, Section 7 of the Pennsylvania Constitution, and Article XIY, ■Section 1 of the Constitution of the United States, in that it is arbitrary, capricious, and discriminatory, and denies appellants due process and equal protection of the law. They contend that, insofar as the statute and regulation prohibit U. S. Certified Color,.they do not constitute a valid exercise of the police power. However, there is no conceivable subject of legislation more peculiarly within the police power of a state than food stuffs:' Carolene Products Co. v. Harter, 329 Pa. 49, 197 A. 627. See also Commonwealth v. Kevin, 202 Pa. 23, 51 A. 594. In fact, appellants concede that “it is within the police power of the legislature to exercise control over the use of coloring where it is used to deceive the consuming public”. Gambone v. Pennsylvania,
Nor can it be said that section 3 of the Statute is so vague and indefinite as to violate due process. We have had no difficulty in ascertaining the intent of the statute. Appellants complain that there is no “standard” by which to judge a lemon pie. However, they have set a standard by adding color to a degree which their survey shows is acceptable to the public. The Hanscom pie, without added color, meets this standard. The language found in Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483, 75 S. Ct. 461, expresses the latest view on police power as it relates to due process. There Mr. Justice Douglas said: “The Oklahoma law may exact a needless wasteful requirement in many cases. But it is for the legislature, not the Courts, to balance the advantages and disadvantages of the new requirement . . . But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough if there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it”.
Judgments affirmed.