Original jurisdiction in case of Commonwealth of Pennsylvania ex rel. Milk Marketing Board and on behalf of 25 Pennsylvania milk producers v. Sunnybrook Dairies, Inc. and Dairy Fresh Food Corp. and James W. O'Mara and James E. O'Mara and Mary K. O'Mara.
Howard D. Brooks, Assistant Attorney General, with him Walter J. Sullivan, Chief Counsel, for plaintiff.
Robert L. Saunders, for defendants.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by President Judge Bowman.
[ 29 Pa. Commw. Page 211]
The Commonwealth, upon relation of the Milk Marketing Board, has filed an alternative complaint in law and equity alleging violations of the bonding and minimum price provisions of the Milk Marketing Law (Act), Act of April 28, 1937, P.L. 417, as amended, 31 P.S. § 700j-101 et seq. This case is presently before us on preliminary objections ordered to be submitted on briefs.
Counts I and II of the Commonwealth's complaint charge Sunnybrook Dairies, Inc. (Sunnybrook), a Pennsylvania corporation engaged in producing, processing and marketing dairy products, with falsifying its license application for the license year 1975-76 so as to escape the requirement of Section 501 of the Act, 31 P.S. § 700j-501 that a bond be posted, and with failing to pay twenty-five individual milk producers the minimum prices established by the Milk Marketing Board. Sunnybrook is also charged with conducting business during a portion of the 1976-77 license year without having renewed its license, with failing to post a bond and with underpaying milk producers during such time.
[ 29 Pa. Commw. Page 212]
Count III is directed against Dairy Fresh Food Corp. (Dairy Fresh), a New York corporation, not licensed by the Milk Marketing Board to do business in Pennsylvania. The complaint alleges that Sunnybrook and Dairy Fresh are owned and operated by the same individuals and that Dairy Fresh was no more than a tool employed by Sunnybrook to evade the provisions of the Act.
Count IV charges Sunnybrook and Dairy Fresh with conspiracy to commit the unlawful violations of the Act previously described.
Count V is directed against the individual defendants and identifies them as owners, officers and directors of Sunnybrook and Dairy Fresh.
The Commonwealth seeks to compel defendants to post a bond retroactive to the period during which the alleged violations occurred and demands damages in the amount of $93,291.18, representing the total amount by which milk producers were allegedly underpaid by defendants during July 1975, February-June 1976, and July-August 1976. Additionally, the Commonwealth seeks to permanently enjoin defendants from conducting business as milk dealers within the Commonwealth of Pennsylvania.
Defendants have moved to strike the complaint, or, in the alternative, to stay these proceedings, on the ground that the Commonwealth has improperly brought a class action on behalf of twenty-five milk producers. Because the Act specifically provides for the action here brought by the Commonwealth, Pa. R.C.P. No. 2230 ...