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MICHAEL J. KOBYLSKI v. COMMONWEALTH PENNSYLVANIA (10/01/86)

decided: October 1, 1986.

MICHAEL J. KOBYLSKI, T/A HYLAND DAIRY, 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. Michael J. Kobylski t/a Hyland Dairy, 8 Wayne Street, Wilkes-Barre, Pennsylvania 18702 (Luzerne County, N.E. Area 3), Docket Nos. C-84-20, C-84-21 and C-84-54.

COUNSEL

John R. Sobota, with him, Joseph V. Kasper, for petitioner.

Daniel T. Flaherty, Jr., for respondent.

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

Author: Palladino

[ 101 Pa. Commw. Page 156]

Petitioner, Michael J. Kobylski t/a Hyland Dairy, appeals from an order of the Pennsylvania Milk Marketing Board (PMMB) revoking Petitioner's Milk Dealer's License for 1985-1986 and revoking Petitioner's right to apply for such license in the future. This order was issued pursuant to § 404(10) of the Milk Marketing Law, Act of April 28, 1937, P.L. 417, as amended, 31 P.S. § 700j-404(10) (1986).*fn1 We affirm the Board's determination that Petitioner was in violation of the Milk Marketing Law and its revocation of Petitioner's license for 1985-86, but modify the order to permit Petitioner to thereafter reapply.

[ 101 Pa. Commw. Page 157]

PMMB's order stemmed from three citations received by Petitioner. The order adopted the findings of fact and the conclusions of the hearing examiner but not his proposed sanctions.

Notice by certified mail of the first citation was sent to the Petitioner at the dairy's address on June 4, 1984. This citation charged the dairy with multiple violations, including: (1) failure to comply with two previous orders of the Board; (2) payment to farmers below the minimum prices established by the Board; (3) failure to maintain accounting records in accord with Board regulations; and (4) failure to submit required monthly reports. At a hearing thereafter before a hearing examiner, Petitioner was represented by Everett Kobylski.*fn2

On July 27, 1984 a second citation was issued charging the dairy with failure to account and to make timely payment for milk from a producer, and on October 29, 1984, a third citation was issued charging the dairy with purchasing milk at below the minimum price fixed by the Board. Petitioner was notified of these citations and the hearing dates by certified mail sent to the dairy, but did not seek a postponement of either hearing nor appear.

PMMB notified Petitioner by certified mail sent to the dairy on May 29, 1985 that a conference would be held June 5, 1985 to discuss why the Board should not revoke the dairy's license as the penalty for the violations in the issued citations. Petitioner did not appear for the conference, nor did he contact the Board to reschedule. On July 17, 1985 the order revoking Hyland Dairy's Milk Dealers License for 1985-1986 and revoking Petitioner's right to apply for a license in the future was issued.

[ 101 Pa. Commw. Page 158]

Petitioner filed a petition for review of the order with this Court on August 6, 1985. A supersedeas was granted by PMMB ...


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