Com. v. Di Meglio

• Citation: 117 A.2d 767,179 Pa.Super. 472
• Parties: COMMONWEALTH of Pennsylvania v. Frank DI MEGLIO, Appellant, and Nick Dimeglio, Appellant.
• Decision Date: 21 July 1955
• Court: Superior Court of Pennsylvania

Page 767

117 A.2d 767

179 Pa.Super. 472

COMMONWEALTH of Pennsylvania v. Frank DI MEGLIO, Appellant and Nick Dimeglio, Appellant.

Superior Court of Pennsylvania.

July 21, 1955.

Rehearing Denied Sept. 6, 1955.

Application for Allocatur Granted Sept. 29, 1955.

Lewis H. Van Dusen, Jr., Henry S. Drinker, Philadelphia, Arthur D. Wingebach, Lester E. Waterbury, White Plains, N. Y., of counsel, for appellants.

Lois G. Forer, Samuel M. Jackson, Deputy Attys. Gen., Harry F. Stambaugh, Sp. Counsel, Harrisburg, Herbert B. Cohen, Atty. Gen., for appellee.

Before RHODES, P. J., and HIRT, ROSS, GUNTHER and WRIGHT, JJ.

WRIGHT, Judge.

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 P.S. § 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. This motion was dismissed (November 24, 1953) and sentences of fine and costs were later imposed. These appeals followed.

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 and regulations for the proper enforcement thereof, including rules and regulations setting up definitions and standards 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 ficticious appearance of egg richness, is prohibited regardless of labeling'.

In limine, we cannot agree with appellants that any controlling facts were first found in their favor. In 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 P.S. § 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.Super. 10, 102 A.2d 239.

The pies in question were made from lemon pie filling purchased by appellant from the General Foods Corporation in five-found packages under the name 'Jell-O Brand Lemon Flavor Pie Filling and Pudding'. The label indicates that the ingredients are sugar, cornstarch, citric acid, salt, natural lemon flavor and U. S. Certified Color (containing coal tar), and directs purchasers to add fifteen egg yolks and a quantity of water to make sufficient filling for ten nine-inch pies. Dr. Harrisson, an expert chemist whose qualifications were conceded by appellants, testified that 'natural lemon flavor' means lemon oil; that lemon oil is extracted from the rind and has a very slight yellow tinge which 'would not carry into the finished product'; that a mixture of cornstarch, sugar, and lemon oil would produce a pie which would be 'very insipid'; that acid must be added to make it acceptable, either natural citric acid or lemon juice; that, in either event, such a pie would be essentially white in color, nor would the use of ground lemon rind create a materially deeper yellow cast; and that the inclusion of egg yolks effects a more acceptable result, which would be 'yellow in accordance with the amount of eggs you put in the product'. Edward E. Hanscom, Jr., prominently identified with the baking industry for many years, testified that 'a great proportion of the coloring' in his lemon pies 'comes completely from egg yolks'; that the impression in the public mind 'is the deeper color in lemon pie comes from eggs and egg yolks and the customer buys it with faith in that'; that eggs are symbols of richness and color; and that 'it would be possible for a baker to make a pie with a very small amount of egg yolks and add coloring to make it look richer than it really is', in which event the cost of production would be considerably reduced.

The testimony of the defense witnesses was that there is little relationship between the use of eggs and color. Joseph Axelrod, one of the merchandising managers of the General Foods Corporation, testified that the purpose in adding artificial color to the product is to 'simulate the outside of a lemon'. James L. Common, another company expert, testified that eggs are not added for coloring but to create 'a creamy eating quality'. Miss Kathryn Pennington, another company expert, testified that the artificial color is added to the product 'from an eye appeal standpoint'. As stated by Mr. Axelrod, 'We put the color in to produce the color that the public expects in a lemon pie'. Appellant Frank DiMeglio testified that lemon pies made with the Jell-O product cost twenty-seven cents each, as contrasted with a general wholesale price of fifty-five cents for the same size lemon pies purchased from bakeries.

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-O product was to conceal 'inferiority'; (2) that purchasers of lemon pies made with the Jell-O product are being 'deceived' by the use of artifical 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.

Appellant's 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, but is merely to give it the yellow appearance that consumers prefer in such a pie, and thus make it more attractive than it would be without such addition'. Conceding arguendo that the artificial color is added only 'to simulate the outside of a lemon', the deception contemplated by the statute still remains. Moreover, the lower Court was justified in finding that dark yellow colored lemon pies may be produced without the use of a dye and, as so produced, contain a greater number of egg yolks than appellants' pies. A pie containing more egg yolks is more nutritious and concededly represents greater value. It was not necessary for the Commonwealth to show that the Jell-O product was injurious to health. In United States v. Two Bags, Each Containing 110 Pounds, Poppy Seeds, 6 Cir., 147 F.2d 123, it was held that adding charcoal coloring to white poppy seeds concealed their true value and made the white seeds appear better or of greater value than they were. The adulteration was not deleterious or injurious to health, but it did make them saleable at a higher price. Similarly, in the case at bar, we find the type of deception which the General Food Law is designed to prevent.

Appellants' second contention is that there was no showing that the addition of artifical 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 United States v. 88 Cases Bireley's Orange Beverage, 187 F.2d 967, 972. 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', 21 U.S.C.A. § 342(b)(1), said: 'Without a finding that a marketable inferior product is likely to be confused with a specified superior counterpart, we think there can be no appearing 'better than it is' within the scope of disapproval of a section patently concerned only with confusion. Thus, in the case before us, proof of violation of the statute requires first description and definition of the superior counterpart, and second, proof that the consumer is likely to mistake the inferior for the superior'. Appellants contend that in the case at bar they did not make an inferior product appear to be a superior one. They argue that the ingredients used in their pies are the same as are normally used in making any lemon pie, and that therefore by adding color they are not making their product appear 'better than it is'. We depart from the record here long enough to observe that it is extremely doubtful whether housewives normally use artificial color in home-baked lemon pies. That it is not necessary to use artificial dye in order to achieve the lemon yellow color (which appellants admit the public demands) was amply shown by the Hanscom pie which the Commonwealth introduced in evidence. This pie, according to the uncontradicted testimony of Mr. Hanscom, contains 'no...