Appeals from the Orders of the Milk Marketing Board of the Commonwealth of Pennsylvania, designated Offical General Order A-770 and Official General Order A-771.
Eugene B. Strassburger, III, Executive Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for appellants, City of Pittsburgh and Eugene B. Strassburger, III, and Ralph Lynch, individually.
Stanley Weinberg, with him Peter D. Jacobson, Neighborhood Legal Services, for appellant, Alliance for Consumer Protection-Hill District Branch and William Butler, individually, Elaine Abdullah, individually, and Laverda Jones, individually, and Joyce Collie individually, on behalf of themselves and on behalf of all others similarly situated.
Charles M. Guthrie, Assistant Attorney General, with him W. W. Anderson, Deputy Attorney General, Richard J. Orloski, Deputy Attorney General, and Walter J. Sullivan, Chief Counsel, for appellee, Milk Marketing Board.
Willis F. Daniels, with him Daniels and Swope, for intervenors, Greater Pittsburgh Dairy Industry Association, et al.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
This is an appeal from Official General Order No. A-770, dated May 3, 1972, of the Pennsylvania Milk Marketing Board (Board) which became effective May 11, 1972, by the City of Pittsburgh, et al. (City) and the Alliance For Consumer Protection, et al. (Alliance). Order No. A-770 fixed minimum prices for milk and milk products and otherwise regulated the production, marketing and distribution of milk and milk products in the Southwestern milk area, known as Area No. 7.
The real genesis of this case occurred on May 11, 1970, when 27 dairy dealers, which companies comprise the Greater Pittsburgh Dairy Industry Association (Dairy Association), which is also an Intervening Defendant in this case, filed a Petition with the Board seeking an increase in the prices of regulated milk and milk products. The initial proceedings resulted in Official General Order No. A-762, dated September 3, 1970, from which an appeal was taken to this Court. On March 5, 1971, this Court filed an Opinion and Order at City of Pittsburgh v. Pennsylvania Milk Marketing Board, 1 Pa. Commonwealth Ct. 300, 275 A.2d 115 (1971), from which no appeal was taken. That Order stated: "Now, March 5, 1971, it is hereby ordered that the record in this proceeding be remanded to the Milk Marketing Board for further hearings consistent with this opinion; with the prices as fixed in Official General Order No. A-762 to remain in effect consistent with this opinion." 1 Pa. Commonwealth Ct. at 326, 275 A.2d at 128. In effect, this Court remanded the case back to the Board with specific directions to hold, first, a limited hearing dealing solely with the question of whether "net sales" included all proper adjustments, and, second, a general hearing on all aspects of the case with certain specific directions to the Board. The Board held hearings on the "net sales" issue and on
April 16, 1971 issued its Official General Order No. A-766, from which no appeal was taken.
On April 26, 1971, the City filed a Complaint in Mandamus in this Court praying for revocation of Orders Nos. A-762 and A-766 on the basis that the Board had not rendered its adjudication within thirty (30) days from the date of the entry of the Order of Court remanding the case back to the Board. The City relied on § 801 of the Milk Marketing Law, Act of April 28, 1937, P.L. 417, § 801, as amended by the Act of July 31, 1968, P.L. , No. 294, § 40, 31 P.S. § 700j-801. By Order of this Court dated December 28, 1971, we sustained the Preliminary Objections of the Board and the Dairy Association and dismissed the Complaint. No appeal was taken from this Order.
It is interesting at this point to note that the Opinion of this Court in this latter case, reported at Pittsburgh v. Milk Marketing Board, 4 Pa. Commonwealth Ct. 208 (1971), made specific reference that: "The prices as set forth in General Order No. A-762 and as affirmed by the Board in General Order No. A-766, were to remain in effect while the Board was holding hearings on those other matters as required by the aforementioned opinion of this Court." 4 Pa. Commonwealth Ct. at 210. In any event, on the general remand, the Board conducted some seventeen (17) days of hearings, and on March 30, 1972, the Board issued its tentative General Order No. A-770 together with its tentative Findings of Fact. Pursuant to the provisions of § 801 of the Act (31 P.S. § 700j-801), the Board conducted a conference with the parties, after which its Official General Order No. A-770 was issued on May 3, 1972, to become effective May 11, 1972, from which this appeal was taken. On or about May 31, 1972, the City and Alliance filed timely appeals with this Court from Order No. A-770.
On May 11, 1972, the Board amended its prior Orders (Orders No. A-762 and A-770) to correct certain technical errors made in those prior Orders. This amending Order (Order No. A-771) was to become effective May 19, 1972. On June 16, 1972, Alliance took an appeal from this amending Order, but the City did not take such an appeal. This latter appeal was given our Docket No. 603 C.D. of 1972 and was consolidated for argument.
The appeal of the City is limited to a general contention that the Board abused its discretion and committed an error of law in failing to provide for refunds to all of the consumers which the City represents, for the twenty-month period (September 14, 1970 through May 11, 1972) during which the dairy dealers were permitted to charge and collect the increased charges for milk and milk products as set forth in Order No. A-762, which were higher than those contained in Order No. A-770. Alliance, in addition to this refund contention made by the City, also appealed on the ground that the minimum fixed price for some milk products regulated by the Board were not reduced in Order No. A-770 and that the record did not support the higher prices of these unchanged milk product items. In addition, Alliance appealed on the basis that some portions of the uniform system of accounts which had been approved by an Order of the Board, in compliance with the direction of this Court, did not meet the statutory requirements imposed on the dairy dealers by the Legislature. It is interesting to note that Alliance specifically stated in its appeal that it was not appealing from the Board's fixing of minimum out-of-store consumer prices set in Order No. A-770 which had been reduced by the Board. In the appeal, docketed at No. 603 C.D. 1972, Alliance also raised an issue concerning the failure of the Board to set wholesale prices for milk and milk products sold by stores to consumers.
The Board and the Dairy Association filed motions to dismiss generally based upon (1) a contention that there is no legal ground for the Board to order refunds to consumers, and (2) so far as the Alliance appeal is concerned, it had no standing because it was not an aggrieved party injured by Orders Nos. A-770 and A-771, nor was it aggrieved by any application of the uniform system of accounts as promulgated by Order No. A-768*fn1 or by its application in this case. In a ...