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MILK MARKETING BOARD COMMONWEALTH v. UNITED DAIRY FARMERS COOPERATIVE ASSOCIATION ET AL. (01/19/73)

decided: January 19, 1973.

MILK MARKETING BOARD OF COMMONWEALTH
v.
UNITED DAIRY FARMERS COOPERATIVE ASSOCIATION ET AL., APPELLANTS



Appeals from decree of Commonwealth Court, No. 564 C.D. 1971, in case of Milk Marketing Board of the Commonwealth of Pennsylvania and Greater Pittsburgh Dairy Industry Association v. United Dairy Farmers Cooperative Association et al.

COUNSEL

Paul A. Simmons, with him Hormell, Tempest, Simmons, Bigi & Melenyzer, for appellant.

Eugene B. Strassburger, III, Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for intervening appellants.

Stanley Weinberg, with him Peter D. Jacobson, for additional intervening appellants.

Charles M. Guthrie, Assistant Attorney General, with him Thomas J. Oravetz and Theodore A. Adler, Deputy Attorneys General, Walter J. Sullivan, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellee.

Willis F. Daniels, with him Daniels and Swope, for intervening appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Mr. Justice Pomeroy took no part in the consideration or decision of this case. Opinion in Support of Affirmance by Mr. Chief Justice Jones. Mr. Justice Eagen and Mr. Justice Roberts join in this opinion. Opinion in Opposition to Affirmance by Mr. Justice O'Brien. Mr. Justice Nix and Mr. Justice Manderino join in this dissenting opinion.

Author: Per Curiam

[ 450 Pa. Page 500]

Preliminary injunction decree granted by Commonwealth Court affirmed by an evenly divided Court.

Disposition

Decree affirmed.

Opinion in Support of Affirmance by Mr. Chief Justice Jones:

This appeal presents yet another challenge to the minimum retail pricing provisions of the Milk Marketing Law.*fn1 The appellants*fn2 seek to reverse a preliminary injunction issued by the Commonwealth Court which restrains the United Dairy Farmers Cooperative Association (hereinafter UDF) from selling milk in their stores at a price below the minimum established by the Board. I would affirm the decree of the Commonwealth Court.

The controversy involved in this case actually goes back to 1967 when, in an ingenious scheme to avoid the minimum price provisions of the Milk Control Act,*fn3 C & D Budget Stores, Inc. (popularly known as Cat &

[ 450 Pa. Page 501]

Dog Stores) began selling Class I milk suitable for human consumption at prices substantially below the minimum allowed by the Board, under the artifice that they were selling pet food. Not only did C & D Budget Stores purchase all their milk from UDF, but the two organizations shared some common officers. In September of 1967 the Board obtained a preliminary injunction restraining C & D's continued sale of "pet food" on the ground that their operation was in fact an attempt to circumvent the minimum retail price. In November of 1967 UDF began its own direct sale of milk at retail through the outlets that had previously been used by C & D Budget Stores.

From the beginning, UDF conducted its milk sales in a manner which was in violation of the minimum price provisions of the Milk Marketing Law. Although the prices listed on all milk products displayed in UDF stores conformed with the then current permissible minimum prices established by the Board, prominent signs were posted announcing that "profit dividends" would be paid on all milk purchases. All the customer had to do to receive his "dividend," more properly called a refund, was to present his accumulated cash register receipts at any UDF store between the 10th and 15th of the next month. A refund ranging from 6 1/2% to 15% of the total milk purchase price was then paid to the ...


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