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WILLARD AGRI-SERVICE v. COMMONWEALTH PENNSYLVANIA (02/16/89)

decided: February 16, 1989.

WILLARD AGRI-SERVICE, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF AGRICULTURE, RESPONDENT



Appeal from the Order of the Secretary of the Department of Agriculture, in the case of Commonwealth of Pennsylvania, Department of Agriculture v. Willard Agri-Services, Inc., Case No. 1987-1.

COUNSEL

Katherene E. Holtzinger-Conner, with her, Frank B. Boyle, Law Offices of Frank B. Boyle, for petitioner.

Stephen R. Pelcher, for respondent.

Judges Colins and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley. Judge MacPhail did not participate in the decision in this case.

Author: Mcginley

[ 123 Pa. Commw. Page 467]

Willard Agri-Service, Inc. (Willard) appeals an order of the Secretary of Agriculture (Secretary), dated January 21, 1988, assessing a fertilizer deficiency penalty pursuant to the "Pennsylvania Fertilizer, Soil Conditioner and Plant Growth Substance Law" (Law)*fn1 in the amount of $5,016.00. We affirm.

On July 28, 1986, the Department of Agriculture (Department) determined that a fertilizer manufactured by Willard was deficient in its guaranteed nutrient components.*fn2 The Department issued a penalty letter from

[ 123 Pa. Commw. Page 468]

    which Willard appealed. De novo hearings were held on July 10, 1987, and August 26, 1987, before a hearing examiner who filed a proposed adjudication and order on December 21, 1987. On January 19, 1988, Willard filed exceptions but on January 21, 1988, the Secretary adopted the proposed adjudication and order. Willard appeals now to this Court.

The relevant findings of fact are as follows:

1. Willard Agri-Services, Inc. (hereafter 'Willard'), built, operates and maintains a modern computer assisted fertilizer manufacturing plant in Marion, Pennsylvania.

2. In 1986, Willard manufactured a 'clear' liquid fertilizer solution known as 7-21-6. These numbers represent the guaranteed presence of the plant nutrients nitrogen, phosphoric acid and potash. The 'clear' solution refers to the liquid fertilizer not requiring agitation before it is used.

3. Willard sold the 7-21-6 fertilizer to Agway, Inc. (hereafter 'Agway') in Carlisle, Pennsylvania and on six different occasions between April 10, 1986 and May 6, 1986, the fertilizer was shipped by Agway through Shillito, Inc., a common carrier, hired by Agway.

4. When Agway received the shipments, the liquid fertilizer was placed in a storage area of four holding tanks. The tanks are known as A, B, C and D. The tanks are connected by various hoses and each tank has an external valve at its base. Just

[ 123 Pa. Commw. Page 469]

    beyond the valve is a quick coupler where a separate hose leads to a common pump and meter so the contents of the tanks can be dispensed to customers.

5. On May 7, 1986, Roger Dressler, an inspector with the Department of Agriculture (hereafter the 'Department') travelled to the Agway store for a routine inspection and to obtain test samples of products at the Agway store.

6. On May 7, 1986, Mr. Dressler took a sample from tank A, which tank had been filled on May 6, 1986 with the liquid fertilizer manufactured by Willard, having a guaranteed analysis of 7-21-6.

7. The sample was taken by Mr. Dressler after Joseph Kann, an employee with Agway, disconnected the hose located at the quick coupler to tank A. The quick coupler is located just beyond the valve to tank A. Appropriately one to two gallons were drained through the line, to accomplish a flushing of the line, before Mr. Dressler obtained two four ounce samples.

8. The samples remained in Mr. Dressler's car for five days until turned into the Department's lab for testing.

9. The Department's lab test of the sample was [sic] taken May 7, 1986 found the components of the Willard liquid fertilizer to be as follows:

Nitrogen 6.4

Phosphoric Acid 13.2

Potash 5.1

10. The Pennsylvania Fertilizer, Soil Conditioner and Plant Growth Substance Law, 3 P.S. § 68.1, et seq., (hereafter the 'Fertilizer Law'), permits a

[ 123 Pa. Commw. Page 470]

    deviation of the guaranteed analysis of ten percent for the primary nutrients ...


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