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S.H. GOSS v. COMMONWEALTH PENNSYLVANIA (04/15/81)

decided: April 15, 1981.

S.H. GOSS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF AGRICULTURE, RESPONDENT. CENTRAL CHEMICAL CORPORATION, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF AGRICULTURE, RESPONDENT



Appeals from the Order of the Department of Agriculture in cases of In Re: S.H. Goss, Inc., No. 78-1, and In Re: Central Chemical Corporation, No. 78-2.

COUNSEL

David C. Keiter, with him Wayde P. Seidensticker, Seidensticker & Ross, for petitioners.

John E. Childe, Jr., for respondent.

Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Macphail

[ 58 Pa. Commw. Page 517]

This is a consolidated appeal brought by S.H. Goss, Inc. and Central Chemical Corp. (Petitioners) from two orders of the Pennsylvania Department of Agriculture (Department) which upheld a total of 125 penalties assessed against Petitioners for deficiencies in fertilizers which they manufactured.*fn1 The penalties were imposed pursuant to the Pennsylvania Fertilizer,

[ 58 Pa. Commw. Page 518]

Soil Conditioner and Plant Growth Substance Law (Law).*fn2 We affirm.

Petitioners in the instant case are manufacturers of fertilizer which is sold in bags or in bulk to consumers. Under the Law it is the duty of the Secretary of Agriculture (Secretary) to sample, inspect and analyze such fertilizer to determine whether the product meets the guarantee as stated on its label. For example, a sample of a fertilizer labeled "10-10-10" would be analyzed by the Department to determine if it contains, within specific investigational allowances, 10 percent nitrogen, 10 percent phosphoric acid and 10 percent potash. If any ingredient, when analyzed, falls below the guarantee a penalty of ten times the value of the deficiency must be assessed by the Secretary. Section 7 of the Law, 3 P.S. § 68.7. The Secretary is given the power to promulgate rules and regulations regarding methods of sampling, inspection and analysis and to establish minimum standards for such sampling, inspection and analysis. Section 6(b) of the Law, 3 P.S. § 68.6(b).

Petitioners challenged the Department's assessment of penalties on several grounds including the inadequacy of the sampling procedures used, lack of precision in the operation of the laboratory (the chemical analysis procedure itself has not been challenged) and the failure to include sufficient sampling error in the investigational allowances. After several hearings on the matter during which an extensive record was developed, the hearing examiner found each of the challenges to be without merit. The Secretary adopted the examiner's findings and ordered payment of the assessed penalties. These appeals followed.

[ 58 Pa. Commw. Page 519]

The issues presented for our consideration are: 1) whether the operation of the laboratory and the sampling procedures used by the Department act to deprive Petitioners of property without due process of law; 2) whether the present investigational allowances which include minimum allowances for sampling error act to deprive Petitioners of due process of law; and 3) whether the decisions and orders of the Secretary are supported by substantial evidence in the record.

We note preliminarily that our scope of review here is limited. We must determine whether the adjudications appealed from violate the constitutional rights of the Petitioners, whether an error of law has been committed or whether any necessary finding of fact is not supported by substantial ...


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