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MILK CONTROL COMMISSION PENNSYLVANIA v. LILY-PENN FOOD STORES (04/23/69)

decided: April 23, 1969.

MILK CONTROL COMMISSION OF PENNSYLVANIA
v.
LILY-PENN FOOD STORES, INC. ET AL., APPELLANTS



Appeal from decrees of Court of Common Pleas of Dauphin County, No. 2783 Equity Docket, 1966, and No. 471 Commonwealth Docket, 1966, in case of Milk Control Commission v. Lily-Penn Food Stores, Inc. et al.

COUNSEL

J. Brooke Aker, with him Henry W. Rhoads, and Smith, Aker, Grossman & Hollinger, and Rhoads, Sinon & Reader, for appellant.

Harold E. Kohn, for appellant.

Anthony W. Novasitis, Jr., Assistant Attorney General, with him Edward Friedman, Counsel General, and William C. Sennett, Attorney General, for Milk Control Commission, appellee.

Willis F. Daniels, with him Daniels and Swope, for Inter-State Milk Producers' Cooperative, appellee.

Roland Morris, with him Morris Duane, John B. Martin, David D. Knoll, and Duane, Morris & Heckscher, for appellees.

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

Author: O'brien

[ 434 Pa. Page 190]

The Milk Control Commission filed a complaint in equity, seeking to enjoin Lily-Penn Food Stores, Inc. and Cumberland Farms of New Jersey, Inc., from violations

[ 434 Pa. Page 191]

    of the Pennsylvania Milk Control Act. In that case, Interstate Milk Producers Cooperative petitioned for and was granted leave to intervene as a party plaintiff. In addition, the Milk Distributors Association of the Philadelphia Area, Inc., petitioned for and was granted leave to intervene as a party plaintiff. The Milk Control Commission also filed a complaint in equity, seeking to enjoin Louden Hill Farm, Inc., from violating the Milk Control Act. Although in the Lily-Penn-Cumberland Farms case there were questions involving licensing under the Milk Control Act, the essential thrust of both cases was to enjoin the defendants from marketing milk at retail at prices lower than the minimum retail prices established by relevant Official General Orders of the Milk Control Commission. In both cases, temporary restraining orders were entered, in accordance with the prayers of the complaints, and after full hearing, the Chancellor filed an exhaustive adjudication and decrees nisi, in which he permanently enjoined the defendants from violations of the orders of the Commission. Exceptions to the adjudication and decrees nisi were filed by the defendants, considered and overruled by the court en banc, and the decrees nisi were entered as final decrees. The defendants appealed to this Court. Subsequent to the original argument of these cases, the General Assembly of Pennsylvania enacted Act No. 294 of July 31, 1968, amending the Milk Control Act. On petition of the Milk Distributors Association of Philadelphia Area, Inc., we granted leave to reopen the record and ordered a reargument, in order that we might be informed of the effect, if any, of the 1968 Statute on the issues involved in the appeal. We have concluded that the new Act has no effect on the questions presented in these appeals.

Appellants have once again made a direct frontal assault on the constitutionality ...


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