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decided: March 16, 1965.


Appeal from order of Court of Common Pleas of Dauphin County, No. 2664 Equity Docket 1964, No. 380 Commonwealth Docket, 1964, in case of County of Allegheny v. Milk Control Commission of Commonwealth of Pennsylvania.


Maurice Louik, County Solicitor, with him Thomas M. Rutter, Jr., Harold Gondelman, and Livingstone M. Johnson, Assistant County Solicitors, for Allegheny County, appellant.

Marion K. Finkelhor, Second Assistant City Solicitor, with him David W. Craig, City Solicitor, for City of Pittsburgh, appellant.

William D. Morgan, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Milk Control Commission, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts dissents.

Author: O'brien

[ 417 Pa. Page 23]

County of Allegheny appeals from the order of court denying the prayer of its complaint in equity, seeking relief in the form of a preliminary injunction and a permanent injunction thereafter. The basis for the county's complaint is that it did not have an adequate remedy at law and that if the Milk Control Commission's official general order were permitted to

[ 417 Pa. Page 24]

    go into effect as scheduled, immediate and irreparable harm would result.

In January, 1964, the Milk Control Commission held public hearings in Pittsburgh,*fn1 petitions having been filed by a number of associations of milk producers and dealers in Western Pennsylvania, for the purpose of taking testimony relative to minimum prices to be paid to producers and minimum prices to be charged to consumers for various types of milk and milk products.

The complaint*fn2 avers that the county participated in the hearings, making statements, offering testimony and attempted to cross-examine witnesses. The main thrust of the complaint is that the manner in which the hearings were conducted denied the plaintiff the fundamental right of due process and equal protection of laws as guaranteed by the Constitutions of Pennsylvania and the United States for the reason that all interested persons were not given reasonable opportunity to be heard and, more specifically, the plaintiff was denied the right to conduct proper and intelligent cross-examination relative to an exhibit of relevant and vital importance to the issue under consideration.*fn3

[ 417 Pa. Page 25]

The Milk Control Commission issued its order on July 23, 1964, effective August 1, 1964, the effect of which, according to the complaint, would be to increase the price of milk to consumers in the Pittsburgh Milk Marketing Area. The plaintiff filed its complaint on July 28, 1964. The court made the following order: "And Now, to wit, at a conference duly held in Chambers this 30th day of July, 1964, upon due consideration of the matters set forth in the Bill in Equity filed in this case, the Court is unanimously of the opinion that the plaintiff in this case has an adequate remedy at law, and therefore, denies the prayer of the Complaint."

Allegheny County appealed*fn4 assigning as error (1) the manner in which the hearings were conducted as not conforming to fundamental requirements of due process of law and (2) the denial of the prayer of the complaint for injunctive relief without a formal hearing, on the grounds of the existence of an adequate remedy at law, when no answer was filed to the complaint.

In view of our determination of this case, we do not reach the merits nor could we in the present state of the record. While the court did not dismiss the complaint, it did make a definitive order. We believe this should not have been done in the absence of a hearing, answer or proper motions filed and opportunity for the parties to be heard. The procedure was irregular, requiring the case to be remanded for consideration consistent with proper procedure. Davis v. Porch Bros., Inc., 268 Pa. 376, 112 A. 32 (1920); Swainbank v. Yoder, 79 Pa. Superior Ct. 132 (1922).

[ 417 Pa. Page 26]

Remanded for further proceedings. Costs to abide determination of the case.


Remanded for further proceedings.

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