Direct appeal to the Commonwealth Court of Pennsylvania from Official General Order No. A-761 of the Milk Marketing Board affecting milk prices in Area No. 3, known as the Scranton-Wilkes-Barre Milk Marketing Area.
Morey M. Myers, with him Gelb & Myers, Thomas L. Wenger, and Rhoads, Sinon and Reader, for appellants.
Donn L. Snyder, with him Berman & Boswell, for amici curiae.
Anthony W. Novasitis, Jr., Assistant Attorney General, for appellee.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Wilkinson. Dissenting Opinion by Judge Manderino.
The case here presented is an appeal from Official General Order A-761 issued by the Pennsylvania Milk Marketing Board, effective September 14, 1970. Order A-761 affects Milk Marketing Area No. 3, known as the Scranton-Wilkes-Barre Milk Marketing Area.
In 1968 the Pennsylvania legislature amended the former Milk Control Law, re-entitling it the Milk Marketing Law and renaming the Milk Control Commission to be thereafter designated the Milk Marketing Board. Act of July 31, 1968, P.L. No. 294; 31 P.S. 700j et seq. In the July 31, 1968, amendment the legislature added Section 704 (31 P.S. 700j-704):
"Uniform system of accounts
The board shall, after reasonable notice and hearing, establish systems of accounts (including cost finding procedures) to be kept by licensees and shall prescribe the manner and form in which accounts are to be kept. Every licensee shall establish such systems of accounting and shall keep accounts in the manner and form required by the board in order to facilitate the costs studies provided for in Section 801." Section 801 (31 P.S. 700j-801), entitled Requisites of Orders Fixing Price of Milk, sets forth the procedure for fixing prices of milk.
Although the Act of July 31, 1968, became effective September 29, 1968, and the hearing upon which Official General Order A-761 was based was held on July 8, 1970, neither the Milk Marketing Board nor the interested parties attending and participating in the hearing had the benefit of uniform systems of accounts. Obviously, the cost studies provided for in Section 801 were not "facilitated" by a uniform system of accounts.
It is appellants' position that the requirement of a uniform accounting system is mandatory and is a sine qua non to a valid price fixing procedure. Appellee, the Milk Marketing Board, takes the position that the requirements of Section 704 are directory only and the Board could hold hearings while it was proceeding with what might be generously referred to as "all deliberate speed" to establish the uniform accounting system. We think the position of appellants is sound and that the record must be remanded to ...