
    Commonwealth v. Uberman
    
      Frederick B. Smillie, district attorney, for Commonwealth.
    
      Walter R. Faries, for defendant.
    April 6, 1938.
   COESON, J.,

Plaintiff in error would appear to have been fined by a magistrate for alleged violation of The Pennsylvania Plant Pest Act of April 21, 1937, P. L. 318.

Defendant below has brought the case before this court upon certiorari and exceptions to the record of the magistrate.

In the information it is charged that defendant, Joseph Uberman, “did unlawfully sell and offer for sale nursery stock without having a dealer’s certificate: (2) failed to have attached a certificate of inspection to this nursery stock.” From the transcript it would appear that the prosecutor testified in court that Joseph Uberman “had two potted plants on his property without having a nurseryman’s agent’s license.” The Pennsylvania Plant Pest Act, supra, gives long definitions as to what constitutes “nursery stock,” “dealer,” and “nursery agent.” From the transcript it would appear that there was no testimony that this defendant was a dealer, as alleged in the testimony. A nursery agent and a dealer are two different things under the act, and, from the definition of nursery stock, it may well be that the two potted plants in question do not come within that definition. If every person who has two potted plants on his property is guilty upon that fact alone, most of the residents of the Commonwealth would be subject to summary conviction under this act. Without going over the numerous exceptions, individually, we feel that the record is entirely insufficient to sustain the fine imposed. The record does not show affirmatively that defendant was convicted by the magistrate of any violation of the law whatsoever. See Commonwealth v. Corson, 36 Pa. Superior Ct. 7, and Commonwealth v. Lewis et al., 10 D. & C. 459.

While it may be that all requirements of the Lewis case, supra, are not necessary, yet the record in the present case is so faulty that the conviction must be set aside.

And now, April 6, 1938, for the reasons given, upon the record before this court, on certiorari, the fine of $50 placed upon defendant, Joseph Uberman, is set aside and the conviction, if any, quashed.  