Commonwealth v. Hollinger

170 Pa. Superior Ct. 180 (1951)

Commonwealth, Appellant, v. Hollinger.

Superior Court of Pennsylvania.

Argued October 1, 1951.

December 12, 1951.

Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.

*181 G. Clinton Fogwell, Jr., Assistant Deputy Attorney General, with him Henry M. Bruner, Chief Counsel, and Robert E. Woodside, Attorney General, for appellant.

Mark E. Garber, for appellee.

OPINION PER CURIAM, December 12, 1951:

Defendant was found guilty of a violation of General Order No. A-191 effective May 1, 1946, of the Pennsylvania Milk Control Commission by a justice of the peace, and a fine of $25 was imposed for delivery of milk to his customers on each of three successive days in July, 1949. The order prohibits any milk dealer within the Harrisburg Milk Marketing Area, Area No. 8, from making a delivery of milk to a retail customer more often than once in a 48-hour period, and is known as the "every other day delivery order." On appeal allowed, the case was submitted to the Court of Quarter Sessions of Cumberland County for judicial determination on stipulated facts by the Deputy Attorney General representing the Commonwealth, and defendant's counsel. The court below adjudged the defendant not guilty as follows: "And, now, April 19, 1951, the appeal is sustained, and the defendant, William Hollinger, is found not guilty. Costs to be paid by the County of *182 Cumberland." The Commonwealth appealed to this Court.

The appeal must be quashed, as the Commonwealth had no right to appeal in this case. "It is well settled in this State that the Commonwealth cannot appeal from a judgment of acquittal in criminal prosecutions, except in cases of nuisance, forcible entry and detainer, and forcible detainer (Act of May 19, 1874, P.L. 219). And this is so whether the prosecution be by indictment (Com. v. Coble, 9 Pa. Superior Ct. 215; Com. v. Stillwagon, 13 Pa. Superior Ct. 547; Com v. Weber, 66 Pa. Superior Ct. 180), or by summary proceeding, (Com. v. Preston, 92 Pa. Superior Ct. 159; Com v. Benson, 94 Pa. Superior Ct. 10, 15-18; Com. v. Ahlgrim, 98 Pa. Superior Ct. 595; Com. v. Bertolette, 101 Pa. Superior Ct. 334; City of Scranton v. Noll, 108 Pa. Superior Ct. 94, 164 A. 850)"; Com. v. Obenreder, 144 Pa. Superior Ct. 253, 254, 19 A.2d 497, 498. See, also, Com. v. Petersheim, 166 Pa. Superior Ct. 90, 70 A.2d 395; Com. v. Kerr, 150 Pa. Superior Ct. 598, 29 A.2d 340.

Appeal is quashed.