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MILK MAID DAIRY PRODUCTS v. PENNSYLVANIA MILK CONTROL COMMISSION (09/16/59)

September 16, 1959

MILK MAID DAIRY PRODUCTS, INC.
v.
PENNSYLVANIA MILK CONTROL COMMISSION, APPELLANT.



Appeal, No. 188, Oct. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1958, No. 414, in case of Milk Maid Dairy Products, Inc. v. Milk Control Commission of the Commonwealth of Pennsylvania. Order reversed.

COUNSEL

John Patrick McShea, Jr., Assistant Attorney General, with him Marvin D. Weintraub, Assistant Attorney General, and Anne X. Alpern, Attorney General, for appellant.

Bernard L. Frankel, with him Donald Brown and Robert P. Frankel, and Fox, Rothschild, O'Brien & Frankel, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 190 Pa. Super. Page 412]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the Court of Common Pleas No. 5 of Philadelphia reversing an order of the Pennsylvania Milk Control Commission suspending the milk dealer's license of Milk Maid Dairy Products, Inc., for violating the Rules of Trade Practices which had been established by the commission.

Section 301 of the Milk Control Law of April 28, 1937, P.L. 417, as amended, 31 PS ยง 700j-301, provides: "The commission is hereby declared to be the instrumentality of the Commonwealth for the purpose of administering the provisions of this act and ... it is hereby vested with power to supervise, investigate and regulate the entire milk industry of this Commonwealth, ... including the establishment of reasonable trade practices, ...."

Carrying out the powers vested in it by this provision, the commission established Rules of Trade Practices effective December 12, 1956, which included the following: "A-1, No licensee under the Milk Control Law shall give or lend to any customer any refrigeration equipment, or milk or cream dispenser of any type for the purpose of storing or dispensing milk or cream, ...." The rules originally provided that a fair rental value be charged for refrigeration equipment furnished by the wholesaler, but they were amended on April 17, 1957, to include a schedule of rentals deemed to be fair.

In violation of this rule, the appellee, whom we shall refer to as Milk Maid, lent refrigerator equipment free of charge to 22 of its wholesale customers. The commission cited Milk Maid for these violations and, after a hearing and a finding that it had violated the commission's Rules of Trade Practice, suspended its license for 44 days, permitting it to apply for the right to pay $2200 in lieu of the suspension.

[ 190 Pa. Super. Page 413]

Milk Maid appealed to the Common Pleas Court No. 5 of Philadelphia. In its petition for appeal, it did not deny its violation of the commission's rules. It set forth that it "files this petition for appeal because the Rules of Trade Practices adopted December 12, 1956, and April 17, 1957 by the Commission are invalid and illegal ...."

The court below, accepting Milk Maid's contention, held that "the prohibition upon the mere giving or lending of refrigeration equipment contained in Rules of Trade Practices A-1 is unreasonable, patently beyond the necessities of the case and does not have a real and substantial relation to the objects sought to be attained." The commission appealed to this Court.

Former Chief Justice STERN said in Gambone v. Commonwealth, 375 Pa. 547, 550, 551, 101 A.2d 634 (1954), "Probably the most important function of government is the exercise of the police power for the purpose of preserving the public health, safety and morals, and it is true that, to accomplish that purpose, the legislature may limit the enjoyment of personal liberty and property ... But, ... a law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the ...


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