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CLOVER FARMS DAIRY v. BRUMBAUGH

April 20, 1984

CLOVER FARMS DAIRY, HARRISBURG DAIRIES, INC., RITCHEY'S DAIRY, BROOKWOOD FARMS, GREATER PITTSBURGH DAIRY INDUSTRY ASSOCIATION, CARL COLTERYAHN DAIRY, INC., MARBURGER FARM DAIRY, INC., SCHNEIDER'S DAIRY, TAYLOR MILK COMPANY, and TURNER DAIRY FARMS, INC., Plaintiffs
v.
GEORGE BRUMBAUGH, ROBERT DERRY and PAUL O'HOP, Officially and in their individual capacities, Defendants



The opinion of the court was delivered by: RAMBO

 This court has before it a motion for a temporary restraining order to prevent the suspending of minimum price controls for low fat and skim milk. Notice of the motion was given to the named defendants and the Commonwealth of Pennsylvania.

 The Pennsylvania Milk Marketing Board is an independent commission of the Commonwealth of Pennsylvania charged by the Milk Marketing Law with regulation of the milk industry pursuant to the provisions of said Act, with responsibility and power to supervise, investigate and regulate the entire milk industry of the Commonwealth of Pennsylvania including the authority to issue orders fixing prices of milk including low fat and skim milk. The Board's authority derives from the Act of April 28, 1937, P.L. 417 as amended, 31 P.S. § 700j-801 (1983). The Act, in pertinent part, provides:

 
The Board shall ascertain, after a hearing in which all interested persons shall be given reasonable opportunity to be heard, the logical and reasonable milk marketing areas within the Commonwealth . . . and shall ascertain and maintain such prices for milk in the respective milk marketing areas as will be most beneficial to the public interest, best to protect the milk industry of the Commonwealth and insure a sufficient quantity of pure and wholesome milk to inhabitants of the Commonwealth . . .
 
. . . .
 
The Board may, on its own motion or upon application in writing from time alter, revise or amend an official order defining milk marketing areas or fixing prices to be charged or paid for milk. Before making, revising or amending any order defining milk marketing areas or fixing prices to be charged or paid for milk, the Board shall hold a hearing, after giving a reasonable opportunity to be heard to interested persons of whom the Board has notice . . ., and, in case of any order affecting the public after giving reasonable notice thereof to the public in such newspaper or news papers as, in the judgment of the Board shall, after sufficient notice and publicity . . .
 
. . . .
 
All provisions of all price fixing orders shall be presumed to be valid and the burden of proving any invalidity of any provisions thereof shall be upon the person asserting the same.

 31 P.S. § 700j-801 (1983)

 The Act of April 28, 1937, P.L. 417, as amended, 31 P.S. § 700j-802 (1983), in pertinent part, provides:

 
The fixing of minimum wholesale or retail prices for skim milk . . . shall be discretionary with the Board.

 31 P.S. § 700j-802.

 Findings of fact

 1. Pursuant to official action and subsequent to notice and hearing, the Board issued general orders which fixed the minimum prices to be paid licensed dealers for nonfat and skim milk within the ...


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