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CITY PITTSBURGH ET AL. v. COMMONWEALTH PENNSYLVANIA (05/23/78)

decided: May 23, 1978.

CITY OF PITTSBURGH ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, MILK MARKETING BOARD, RESPONDENT; GREATER PITTSBURGH DAIRY INDUSTRY ASSOCIATION, AND CERTAIN INDIVIDUAL MEMBERS THEREOF ET AL., INTERVENING PARTIES RESPONDENT. SCHNEIDER'S DAIRY, INC. ET AL., PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, MILK MARKETING BOARD, RESPONDENT; CITY OF PITTSBURGH AND RICHARD S. CALIGUIRI, MAYOR, INTERVENING PARTY RESPONDENTS



Appeals from the Order of the Milk Marketing Board in case of New Area 5 Official General Order No. A-807, effective April 20, 1977.

COUNSEL

Eugene B. Strassburger, III, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for City of Pittsburgh.

Willis F. Daniels, with him Daniels and Swope, for Schneider's Dairy, Inc., et al.

Howard D. Brooks, Assistant Attorney General, for Pennsylvania Milk Marketing Board.

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

Author: Crumlish

[ 35 Pa. Commw. Page 401]

These cross appeals bring before us for review an order of the Milk Marketing Board (Board), Official General Order No. A-807, providing for certain increases in milk prices for Milk Marketing Area No. 5. The City of Pittsburgh (City), representing the consumers, is the appellant at No. 778 C.D. 1977, while Schneider's Dairy, Inc. et al., representing milk dealers within the affected area, are the appellants at No. 988 C.D. 1977. The Greater Pittsburgh Dairy Industry is an intervenor in the former appeal, while the City of Pittsburgh has sought to intervene in the latter.

Hearings on the subject of milk prices were held March 2, 3, and 4, 1977. A tentative order was issued on April 12, supplemented by the official order effective April 20.

No. 778 C.D. 1977

In its appeal, the City first raises for our consideration its contention that the 3% rate of return on sales allowed to dealers by the Board in its findings is unnecessarily high and that, in fact, the effective rate of return is actually in excess of 3%. After a

[ 35 Pa. Commw. Page 402]

    thorough and exhaustive review of the record, we are convinced that the lack of adequate discussion and crucial findings of fact leading to the determination of 3% as a reasonable return does not enable us to perform our judicial role of review. Though counsel for the Board in its brief indicates that dealer testimony supports a return on sales of up to 6%, counsel for the City properly points out that the Board's reference to "dealer testimony" is its suggested findings of fact and conclusions of law. Despite the testimony of one witness for the dealers which indicated that the amount of price increases necessary to yield returns on ...


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