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GUERS DAIRY v. COMMONWEALTH PENNSYLVANIA (06/25/85)

decided: June 25, 1985.

GUERS DAIRY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, MILK MARKETING BOARD, RESPONDENT



Appeal from the Order of the Pennsylvania Milk Marketing Board in the case of Commonwealth of Pennsylvania Milk Marketing Board v. Guers Daory, Inc., Legal Docket No. C 84 7.

COUNSEL

Donn L. Snyder, for petitioner.

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

Judges Doyle and Colins and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 90 Pa. Commw. Page 269]

Guers Dairy, Inc., appeals here an order of the Pennsylvania Milk Marketing Board (Board). That order revoked Guers' milk dealer's license for the licensing year 1984-1985.*fn1 We affirm.

The facts of this case are undisputed. During the month of December 1983, Guers allowed several of its customers discounts on quantity purchases of milk in excess of those permitted in the Board's Official General Order (OGO) No. A-844A.*fn2 Guers was also alleged to have improperly billed customers for milk purchases under OGO No. A-844A and improperly

[ 90 Pa. Commw. Page 270]

    reported its packaged purchases and sales of milk to and from other dealers. Guers was cited for violating Section 807 of the Milk Marketing Law (Law)*fn3 in March 1984. A hearing was held on May 1, 1984 after which a Board hearing examiner found that Guers had violated the Milk Marketing Law and proposed that Guers' milk dealer's license be suspended for ninety-six days or, in lieu of the suspension, that Guers be given the opportunity of paying a penalty of $4,800.*fn4 On September 21, 1984, the Board adopted the hearing examiner's findings and conclusions but rejected the recommended penalty. Rather, the Board ordered Guers' milk dealer's license be revoked for the 1984-1985 licensing year.*fn5 Guers filed a timely petition for review from that order.

In this appeal, Guers contends that (1) the Board erred as a matter of law when it considered Guers' prior violations of the law in arriving at its decision to revoke its milk dealer's license; and (2) the penalty imposed, license revocation, is so harsh and excessive in relation to the violations found that it amounts to an arbitrary and capricious act and an abuse of discretion. In reviewing Guers' contentions, we are cognizant that our scope of review of an

[ 90 Pa. Commw. Page 271]

    agency adjudication is limited to determining whether necessary findings are supported by substantial evidence, an error of law committed, or whether any constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Schuman's Village Square Drugs, Inc. v. State Board of Pharmacy, 13 Pa. Commonwealth Ct. 456, 320 A.2d 377 (1974).

Since Guers did not press its first contention and its counsel stated at oral argument that it was relying entirely upon the second contention,*fn6 we will pass on to Guers' second contention which is that the penalty which the Board ultimately imposed upon it, license revocation, is so unduly harsh and excessive in relation to the present violations that it amounts to an abuse of discretion. Guers' concedes that Section 404(10) of the Law, 31 P.S. § 700j-404(10), specifically authorizes the Board to revoke a milk dealer's license for violating provisions of the Act or any of the rules, regulations, or orders of the Board. Guers argues, however, that the severe sanction of license revocation has only been used in the past by the Board in cases involving a dealer's failure without reasonable cause to make timely payments for milk purchased. See Pennsylvania Milk ...


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