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PAUL SAUERBRY v. COMMONWEALTH PENNSYLVANIA (05/14/84)

decided: May 14, 1984.

PAUL SAUERBRY, T/A GREENWOOD DAIRIES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, MILK MARKETING BOARD, RESPONDENT



Appeal from the Order of the Commonwealth of Pennsylvania Milk Marketing Board in the case of Commonwealth of Pennsylvania, Milk Marketing Board v. Paul Sauerbry, t/a Greenwood Dairies, Docket No. C-81-97.

COUNSEL

Willis F. Daniels, Duane, Morris & Heckscher, for petitioner.

Daniel T. Flaherty, Jr., Chief Counsel, for respondent.

Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 82 Pa. Commw. Page 386]

The petitioner, Paul Sauerbry, seeks review of an Order of the Milk Marketing Board (Board). The Board adopted the Order of a hearing examiner who

[ 82 Pa. Commw. Page 387]

    found that petitioner had violated Section 807 of the Milk Marketing Law (Law), Act of April 28, 1937, P.L. 417, as amended, 31 P.S. ยง 700j-807.

In October of 1981, the Board issued a citation against the petitioner which charged him with offering to sell to the Pennsbury School District (District) milk in combination with half pint containers of orange drink, at a price below Milk Marketing Board minimum prices because the orange drink was priced below cost or value.

A hearing examiner presided over a formal hearing on April 13, 1982. The hearing examiner elicited evidence from the Board witness which essentially demonstrated that the petitioner made a bid to the District for milk and half pints of orange drink, and that the price bid for orange drink was less than handling costs for that product, not including any production costs. The Board expert based his findings on cost figures submitted for the calendar year immediately preceding the year in which the bid was made. Additionally, the Board introduced evidence demonstrating that the price bid made by the petitioner for the orange drink was less than half the price which the petitioner charged for a less concentrated orange drink sold to other schools during the same time period. The petitioner objected to the admission of this evidence as immaterial to the charge as stated in the citation against him.

In July of 1982, the hearing examiner issued an order which found that the petitioner had violated Section 807 of the Law. The proposed order recommended a fifty-day suspension of the petitioner's milk dealer's license, or in lieu of a suspension, a $2500 fine. In September of 1982, the Board adopted the recommendation of the hearing examiner and entered an Order to that effect which is the subject of this petition.

[ 82 Pa. Commw. Page 388]

Section 807 of the Law states, in ...


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