I'm not the most experienced guy here by a longshot, so wait until others chime in. Even though you took a great photo I'd like to see more to be 100% sure.
Having said that I would say it is almost certainly Apple Scab. It is caused by a fungus and is a serious thing. The most prescribed treatment for it would be spraying with myclobutanil ( a fungicide) most commonly sold in stores under the trade name Immunox.(manuf. by Spectracide) Home depot will likely have this on their shelves (Lowe's does) most often sold as a concentrate in a 16 oz. bottle. Spray to runoff getting both the top and bottom of the leaf surfaces. I even spray the trunk and branches.
Empire is a variety that is HIGHLY susceptible to scab and is well known as such. It's a shame because I like Empire.
It looks like it's still in the pot. If it is, I'd return it. If HD is like Lowe's they have a return policy that allows for this on fruit trees. You won't gain much by getting it in the ground this late in the year anyway.
After getting your money back go online and order a good bareroot tree from a good nursery.
If you're a newbie and you like Empire you'll probably like Liberty from what I've read. It is one of (if not THE) most disease resistant cultivars available. It is reported to be virtually scab immune and is an easy tree to grow. Harvestman is one of the really smart guys here and he doesn't care for Liberty, but a ton of folks who have them do. Trust me, a disease resistant apple is the way to go for 95% of backyard fruit growers. You are much more likely to have a good experience that way. BTW...there are a other DR varieties available. Go to Adams County Nursery online and view "Disease Res. Varieties".
Again...allow others to offer their opinions before taking any action. Just my 3 cents.

Was just looking at Cummins nursery page and about liberty they say:

LIBERTY
This disease-resistant apple has been making a major impact in the eastern U.S. Many independent taste panels have rated it the best among the resistant varieties, usually above Empire, and always rated it above McIntosh. Good well-balanced sweet-tart flavor with an attractive red skin makes Liberty competitive with "standard" apples. This apple is not just for the back yard grower but will be important for direct-sales. With consumer interest in low spray and organic produce rising, there comes a need for a high quality cultivar like Liberty. Besides immunity to apple scab, Liberty is resistant to cedar apple rust and has fairly good resistance to fire blight.

Those taste panels are very independent indeed. Most of my customers are not fond of Liberty- to me it is an average apple holding very little interest, although average apples are really good off your own tree. There are some newer disease resistant varieties from France that are very good and Goldrush is fantastic if you've got the season for it. But for some people, Liberty is about as good as it gets- it's a matter of taste.

Cummin's taste evaluations rarely coincide with mine, so there are obviously some different types of taste buds over there.

Looks like scab, but not a bad case of it. Immunox is indeed a very affective remedy if you don't live near a commercial orchard that has developed scab resistant to its mode of action.

Has to be controlled in spring and I believe what's done is done. If you do a couple of sprays, one at petal fall and one 10 to 14 days later with Immunox and the right insecticide like Triazide, you can probably get sound apples free of scab in Jersey, especially if you are in N. Jersey.

The insecticide is needed anyway so growing disease resistant varieties doesn't actually help the home grower all that much. Goldrush is a great apple even without considering its resistance to scab.

Alright, thanks, it's a shame because I really like this apple. I will spray it a couple times and if that doesn't work then I will return it.

Alright, thanks, it's a shame because I really like this apple. I will spray it a couple times and if that doesn't work then I will return it.

Fish is likely a bit too far North for Goldrush isn't he Harvestman? So far, I'm less than ecstatic about my Goldrush and I'm not so sure my season will be long enough for it either. We'll see because it set it's first crop this year (planted in June last year).
I notice alot of folks seem to follow your line of thinking "DR apples still have to be sprayed with insecticide so it's DR is not really a big deal". I personally couldn't disagree more though I digress. I had never had an issue with CAR until the Goldrush came along...it's CAR susceptibility, particularly on a DR apple is a big negative. Hopefully it's taste and keeping qualities will more than make up for it. It does have a fantastic growth habit though and it set a ridiculous amount of apples for a small tree, though I hand pollinated them.
I'll have a Liberty in the ground next year though, mainly because I do like Empire and it is often compared to it and Macintosh.
I would bet that less than 2 in 10 fruit trees sold at Home Depot ever get so much as a single spray. Even then, they'll likely be the wrong sprays at the wrong time. Makes one wonder why they don't sell trees like Liberty.

Seek, Liberty is a huge magnet for plum curculio. It is harder to protect that fruit than many better flavored varieties that are scab susceptible. I don't think Liberty tastes that much like Empire here- Empire is sweeter and richer.

Macintosh is better off the tree than Liberty, IMO- much more aromatic and has the Mac crunch. It will soon be a highly esteemed heirloom. But it's not very good further south.

Fish is not too north for Goldrush if he has good light exposure and you are perfectly situated for it. To me, what makes it a great apple is being able to eat it into spring and having people tell you after eating them in March or April that it is the best apple they've ever eaten. I thought mine had gotten bland in storage, but then realized I'd confused some Suncrisp for them. Suncrisp is bland by March.

So you have Goldrush Harvestman? Keeping qualities are what made me select it, so that's great to hear. I'm super surprised you are able to harvest Goldrush, you being significantly further north than me, and me questioning my climate for them. You Harvestman are THE ONLY one I've heard cast so many negative comments towards Liberty...and you are someone whose opinion I value greatly. I read a TON of online data and although I've heard the usual few so-so comments toward Liberty, I've read a innumerable amount of reports on MB's just like this one from people who love them. Not folks with one tree, but from those who have Cox's OP, Gravenstein, Esops Spitzenburg, Honeycrisp and on and on, none of which from NY who overvalue old Geneva introductions. Most every reporting agency ranks them very highly. Is it all BS...are they just promoting them because of their DR..because their relatively new...what? Maybe the green mov't?
Maybe they are placing a value on their sure cropping, DR and ability to fulfill what the planter has in mind. Taking all this into context with the flavor delivered?
I'm just asking because mostly what I've read or at least the median of it turns out to be true. You tell a fully contradictory story, yet you've grown them and ate them and are a knowledgeable apple guy. I don't know what to think.
I CAN with all certainty tell you this: Macintosh is garbage when planted here...you mention PC magnet...pffft. Unremarkable?...Average?...that's a Mac. Aromatic? Sure...all apples become more aromatic as they become mealy rubbish. Mac is an Ace in this regard...it goes soft faster than I do.
The Macintosh is going by the way of RD...not as fast, nor should it, but it will never hold the title of esteemed heirloom. "X" number of years from now it will be the DR varieties and perhaps Liberty or, as you say Goldrush that will hold that noble honor.
I still think that (based on my exhaustive study) that Liberty is a super recommendation for anyone who identifies themselves as a "newbie" and wants to grow a apple tree in their backyard...particularly when that individual has expressed a liking for Empire.
Harvestman, do you think we'll see the day when a "across the board" DR variety can equal or trump the eating qualities of a Honeycrisp. Such an introduction would revolutionize the apple growing industry. You listening Monsanto?
Until then...we'll work with what we have.
I like you Harvestman...don't get mad at me if we don't agree on an apple...ok?

This post was edited by Appleseed70 on Tue, Jul 15, 14 at 1:21