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LILY-PENN FOOD STORES v. COMMONWEALTH PENNSYLVANIA (01/21/84)

January 21, 1984

LILY-PENN FOOD STORES, INC. ET AL., PETITIONERS,
v.
COMMONWEALTH OF PENNSYLVANIA, MILK MARKETING BOARD, RESPONDENT, SUBURBAN MILK DEALERS ASSOCIATION ET AL., INTERVENORS, ATLANTIC PROCESSING, INC. T/A LEHIGH VALLEY FARMS, INTERVENORS



COUNSEL

Daniel T. Flaherty, Jr., Chief Counsel, James J. Kutz, Allen C. Warshaw, Harrisburg, for respondent.

Harold Swope, Duane, Morris & Heckscher, Harrisburg, J. Jackson Eaton, III, Butz, Hudders & Tallman, Allentown, for intervenors.

Kevin J. McKeon, Rose, Schmidt, Dixon & Hasley, Harrisburg, Sheldon A. Weiss, Jersey City, N.J., for petitioners.

Author: Craig

MEMORANDUM OPINION

CRAIG, Judge.

This proceeding is a sequel to our decision in Lily Penn Food Stores v. Milk Marketing Board, 62 Pa. Commonwealth Ct. 597, 437 A.2d 485 (1981), where we decided an appeal from the Pennsylvania Milk Marketing Board which, pursuant to proceedings initiated by the Suburban Milk Dealers Association (Association), had increased the minimum resale prices for milk in Area 1, Zone 2 (Order No. A-837).

In those proceedings, Lily Penn Food Stores, Inc. and Joan Arnone, an individual consumer, opposed the minimum price increases before the board and, after the board had adopted its order essentially granting the Association's request, brought the appeal to this court as petitioners. (In this memorandum opinion, "Lily Penn" refers collectively to those petitioners, who are also the moving parties here.)

In our Lily Penn decision, we held that the board failed to use a representative cross-section of dealers in ascertaining a reasonable rate of return, and that the board "abused its discretion" in rejecting evidence on the issue of low fat and skim milk price margins. We therefore reversed Order No. A-837 and remanded the matter to the board for redetermination of the minimum prices, with directions.

Now we have the application of Lily Penn as a party who prevailed, seeking the taxation of costs, including counsel fees, against the board itself, against the four-dealer Association and against the other dealer, Atlantic Processing, Inc. In the appeal, the board had initially been the respondent, and the Association and Atlantic were intervenors.

Summarized, Lily Penn's claim for appeal costs is as follows:

Filing fee for the appeal $25.00

Cost of transcripts of hearings

     before the board $1,559.27

Printing costs (net) as to

     the briefs and supplemental

     briefs in this court $8,201.26

Copying costs as to individual

     papers filed in this court $578.10

Counsel fees $50,000.00

The board, the Association and Atlantic now have filed answers to the costs application, and all parties have filed briefs on the following questions of law:

1. Was Lily Penn's application for costs timely?

2. Is the Milk Marketing Board exempt from liability for costs?

3.On what legal basis, if any, does liability for record an printing costs rest ...


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