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MILK CONTROL COMMISSION v. PENN FRUIT COMPANY. (03/19/63)

March 19, 1963

MILK CONTROL COMMISSION, APPELLANT,
v.
PENN FRUIT COMPANY.



Appeal, No. 13, May T., 1963, from decree of Court of Common Pleas of Dauphin County, No. 2501 Equity Docket 1961, No. 449 Commonwealth Docket 1961, in case of Milk Control Commission of Commonwealth of Pennsylvania v. Penn Fruit Company, Inc., Samuel Cooke, Morris Kaplan et al. Decree affirmed.

COUNSEL

Morey M. Myers, Chief Counsel, with him William Steerman, Assistant Attorney General, and David Stahl, Attorney General, for Milk Control Commission, appellant.

Owen B. Rhoads, with him William H. Lowery, Arlin M. Adams, and Dechert, Price & Rhoads, and Schnader, Harrison, Segal & Lewis, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.

Author: O'brien

[ 410 Pa. Page 243]

OPINION BY MR. JUSTICE O'BRIEN

The Milk Control Commission appeals from the final decree in equity dismissing its complaint after hearing and adjudication. The Commission invoked the provisions of the Milk Control Law, Act of April 28, 1937, P.L. 417, as amended, 31 P.S. § 700j-101 et seq., seeking to enjoin the defendants, from purchasing and receiving, handling, selling or distributing, or in any other way, handling milk in the capacity of a milk dealer as defined by the Milk Control Law, without first obtaining a milk dealer's license from the Milk Control Commission, or, by operating in such a manner as to be exempt from such licensing provision as is provided in Section 402 of the Milk Control Law.

The Commission's complaint avers that the defendants are not and never have been licensed as milk dealers, and milk is sold to consumers from the corporate defendant's stores in and about the City of Philadelphia, the milk having been obtained elsewhere than from a milk dealer licensed to sell and deliver milk in Pennsylvania. It is further averred that it is a requirement of Section 401 of the Milk Control Law that a milk dealer, as defined by the Act, shall not sell or distribute milk within the Commonwealth without a license, however, the Commission may by official order exempt stores from the license requirements of the Act, and shall exempt stores selling milk, all of which has been purchased or acquired from a licensed milk dealer or handler. The complaint also avers that the defendant's acts and practice of purchasing and obtaining

[ 410 Pa. Page 244]

    milk from sources other than a licensed dealer and selling the milk to customers at its stores constitutes a violation of Sections 401 and 402 and other sections of the Act; and that the practices are injurious to trade and commerce by demoralization of the price structure of milk to such an extent as to interfere with an ample supply of milk for the inhabitants of the Commonwealth.

The defendants filed an answer to the complaint. The parties in lieu of the testimony of appropriate witnesses, filed the following stipulation of facts:

"1. The plaintiff is the Milk Control Commission of the Commonwealth of Pennsylvania, an administrative agency of said Commonwealth created by the Milk Control Law (31 P.S. § 700j-101 et seq.), and has brought this action pursuant to section 1004 of said Law (31 P.S. § 700j-1004).

"2. The corporate defendant is Penn Fruit Company, Inc. (herein Penn Fruit) and the individual defendants are officers, directors, supervisors or managers of Penn Fruit or its stores, as named in the caption and paragraphs 4, 5 and 6 of plaintiff's complaint.

"3. Penn Fruit is a Pennsylvania corporation with its principal office in Philadelphia, Pennsylvania, and it operates grocery stores in Pennsylvania, New Jersey, Delaware, Maryland and New York.

"4. Penn Fruit purchases milk sold in its stores in and around Philadelphia, and listed in the caption of plaintiff's complaint, from Pennbrook Milk Company in Pennsylvania and from National Dairy Products ...


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