No. 80-2-284, Appeal from the Order of the Commonwealth Court of Pennsylvania, No. 2446 C.D. 1979
John Paul Kershner, Lancaster, for appellants.
Daniel T. Flaherty, Jr., Asst. Atty. Gen., for appellee.
Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., concurs in the result. Roberts, J., files a dissenting opinion. O'Brien, C. J., and Wilkinson, J., did not participate in the consideration or result of this case.
This is an appeal from a final decree of Commonwealth Court permanently enjoining appellant from selling milk at its store located on Route 72, Manheim, Pennsylvania at prices below the minimum prices established by the Milk Marketing Board. The appeal comes to us pursuant to § 723(a) of the Judicial Code, 42 Pa. C.S.A. § 723(a) as an appeal from a final order of Commonwealth Court. We reverse.
The case was commenced in the Commonwealth Court when the Pennsylvania Milk Marketing Board filed a complaint in equity and petition for preliminary injunction to prevent appellant from continuing to sell milk at his Manheim store on Route 72 below the minimum price established by the Board for the area in which the store is located. After hearing, the Commonwealth Court issued a Decree Nisi on February 27, 1980 granting injunctive relief to the Commonwealth. Exceptions were taken to the Decree Nisi, and on April 16, 1980 the court filed an opinion on the exceptions and entered a final decree permanently enjoining the appellant from selling milk at prices below the minimum set by the Board.
The Milk Marketing Law, Act of April 28, 1937, P.L. 417, Art. I, § 101, et seq. (currently Act of July 31, 1968, P.L. 963, No. 294, § 1, et seq., 31 P.S. § 700j-101 et seq. (Supp. 1981-1982) is the statutory scheme pursuant to which the Milk Marketing Board is charged with the responsibility of regulating virtually every aspect of the production and sale of milk and milk products in the Commonwealth. Whereas most retailers of milk are subject to the restrictions of minimum pricing which may be established by the Board, there is an exemption from these restrictions for certain
milk dealers who produce and sell only limited amounts of milk. 31 P.S. § 700j-402 (Supp. 1981-1982).
Appellant Kreider Dairy Farms, Inc. operates a dairy farm in Lancaster County, Pennsylvania consisting of several contiguous and several noncontiguous tracts of land on which the appellant grows feed crops, manages a dairy herd, processes milk, and operates two retail stores where milk is sold to the public. One store is located on the same tract of land where the herd and the production facilities are located. That the appellant is not subject to the Board's pricing regulation at this store is not disputed. However, the second store is located on an eighty acre tract noncontiguous to the tract on which the herd and production facilities are located. This land is used for the growth of feed crops as well as for the sale of milk at the second store. Milk is transported approximately 3.6 miles from the processing facility to the second store by use of the public highways.
Section 700j-402 of the Milk Marketing Law, 31 P.S. § 700j-402 (Supp. 1981-1982) provides that a milk dealer may be exempted from the licensing requirements of the act ...