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BROOKWOOD FARMS v. MILK MARKETING BOARD AND FARMERS UNION MILK PRODUCTS ASSOCIATION (04/19/73)

decided: April 19, 1973.

BROOKWOOD FARMS, ET AL.
v.
MILK MARKETING BOARD AND FARMERS UNION MILK PRODUCTS ASSOCIATION, INTERVENING APPELLEES (FOUR APPEALS)



Appeals from the Order of the Milk Marketing Board in case of In Re: Petition of Inter-State Milk Producers' Cooperative Assn., Inc., Farmers' Union Milk Producers' Assn., Dairylea Cooperative, Inc., Country Belle Cooperative Farmers, Berks County Dairy Producers' Assn., Allied Milk Producers' Cooperative, Eastern Milk Producers' Cooperative, Milk, Inc., and the following farmer associations, Pennsylvania Farmer Association and Pennsylvania State Grange, General Order Nos. A-773, 774, 775, 776, 777, 778, 779 and 780.

COUNSEL

Willis F. Daniels, with him Harold W. Swope and Daniels & Swope, for appellants, Brookwood Farms, et al., 322 C.D. 1973.

Roland Morris, with him David C. Toomey and Duane, Morris & Hechscher, for appellants, Milk Dealers Association of the Philadelphia Area, Inc., et al., 324 C.D. 1973.

Donn L. Snyder, with him Berman & Boswell, for appellants, Gorman's Dairy, Inc., et al., 359 C.D. 1973.

Eugene B. Strassburger, III, Executive Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for appellants, City of Pittsburgh, et al., 394 C.D. 1973.

Walter J. Sullivan, Chief Counsel, for appellee.

Francis A. Kelly, with him Michael A. Marks, for intervening appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. Concurring Opinion by President Judge Bowman.

Author: Kramer

[ 8 Pa. Commw. Page 513]

These appeals are from eight Official General Orders Nos. A-733 through A-780 (hereinafter collectively referred to as General Order No. A-733, unless otherwise specifically noted), issued by the Pennsylvania Milk Marketing Board (Board), posted on March 6, 1973, to become effective March 13, 1973, in which the minimum prices to be paid by dairy dealers to the producers of Class 1 milk, at 3.5 percent butterfat content, was increased 92 cents per cwt. in all of the eight milk marketing areas in the Commonwealth. It has been represented that these orders will increase the cost of such milk to Pennsylvania dairy dealers by $25,000,000 per year, or $15,000,000 after giving effect to federal milk pricing orders. The basis for General Order No. A-773 is an undated adjudication entitled "Findings of Fact and Conclusion in Support of Official General Orders Nos. A-733 through A-780" signed by two members of the three-member Board. By Order of this

[ 8 Pa. Commw. Page 514]

Court dated March 26, 1973, all of the appeals herein were consolidated for purposes of argument and decision, and the matter was set down specially for argument on April 2, 1973, because of the alleged urgency of the circumstances.

This matter had its beginning when the Board issued a call for a hearing through its Bulletin No. 927, dated January 26, 1973, wherein the Board published notice of a limited hearing to be held on February 6, 1973, concerning minimum producers' milk prices throughout the entire Commonwealth. Because this call or notice runs to the very heart of these appeals, we set forth the pertinent provisions of the notice, which read as follows:

"In accordance with the provisions of the Milk Marketing Law of April 28, 1937, P.L. 417, as amended, the Milk Marketing Board of the Commonwealth of Pennsylvania, will conduct a public hearing to be held in room No. 309, Agriculture Building, 2301 North Cameron Street, Harrisburg, Pennsylvania, beginning at 10:00 o'clock a.m., on Tuesday, February 6, 1973, for all of the milk marketing areas in the State as follows:

"This hearing has been called by the Milk Marketing Board upon petition of the following dairy farmer cooperatives:

"The only testimony to be taken will be that concerning minimum prices farmers shall receive for their milk in each of the eight milk marketing areas of the state.

"The schedule to be followed and the presentation of testimony is given below:

"(1) Testimony by individual dairy farmers and/or dairy farmers cooperatives and farmer associations.

"(2) Testimony by Commonwealth witnesses."

[ 8 Pa. Commw. Page 515]

This notice was signed by two members of the three-member Board, and as was explained on the first day of hearing, on the record, the third member of the Board registered his objection and opposition to the hearing based upon his observation and belief that the call improperly restricted the hearing, by prohibiting the dealers to present evidence. The record quite clearly shows that prior to the date of the first hearing, some dairy dealers, and certain of their associations, in seven of the milk marketing areas requested the Board to amend its call so as to permit the dairy dealers to present testimony and evidence. This request was denied by the Board and confirmed by letter addressed to counsel for the dairy dealers, on the basis that it was the intention of the Board to meet what it called an "extraordinary emergency situation" involving rising costs "in feed costs . . . borne by producers." It is interesting and important to note that at the opening of the hearing the dairy dealers, once again, on the record, made a motion that the Board open the hearings for the purpose of receiving testimony and evidence from the dealers on "all matters concerning the milk industry." This motion was joined in, or supported by all of the dairy farmer producers present at the hearing, except for the possible exception of one, whose statement for the record in connection with that motion is ambivalent. Counsel for this one group of producers was more concerned about the legality of permitting the dealers to present testimony and evidence in the face of the call which prohibited such testimony and evidence, than he was concerned about limiting the call in the first instance. Even counsel for the Board was concerned over the procedure followed by the Board, for at page 39 of the transcript he queried the Board: "Is it not correct that testimony from any party, whether consumer or dealer or whoever, will be received at this hearing if programmed to the subject of

[ 8 Pa. Commw. Page 516]

    producer prices?" In response, the Chairman of the Board referred to the call (quoted above) and stated: "Therefore, I must rule that your statement is wrong, Mr. Sullivan, in that we will take only testimony from dairy farmers, dairy farmer cooperatives and farmer associations and Commonwealth witnesses." The Chairman reiterated his ruling several times during the course of the two-day hearing.

Later in the hearing, an attorney for the City of Pittsburgh (City) attempted to present a statement on behalf of consumers. Although the record is replete with statements made by producers (who as non-lawyers were permitted to participate in the hearing, either for themselves or for organizations or associations), the Chairman of the Board refused to permit counsel for the City to make any statement whatsoever. At page 348 of the transcript of testimony, the Chairman of the Board stated: "I want to say we are not entertaining any statement from counsel, Mr. Pauline, from the City of Pittsburgh. He entered his appearance, he can speak as an attorney for or against the motion, but there is no statement that I am going to permit on the record on behalf of consumers." The full flavor of the dictatorial power of the Chairman of the Board is highlighted in the record where he was challenged by counsel for some of the dealers to consult with the other members of the Board before making such basic rulings, that the dealers and the consumers should not be permitted to participate at the hearings. The Chairman of the Board flatly ruled that he was making the rulings on behalf of the Board. At two other places in the ...


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