Redmond v. Commonwealth

363 A.2d 840, 26 Pa. Commw. 368, 1976 Pa. Commw. LEXIS 1307
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 13, 1976
DocketAppeal, No. 1844 C.D. 1975
StatusPublished
Cited by6 cases

This text of 363 A.2d 840 (Redmond v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Redmond v. Commonwealth, 363 A.2d 840, 26 Pa. Commw. 368, 1976 Pa. Commw. LEXIS 1307 (Pa. Ct. App. 1976).

Opinion

Opinion by

Judge Crumlish, Jr.,

This is an appeal from Official General Order A-794 of the Pennsylvania Milk Marketing Board (Board) which established prices for the South Central Milk Marketing Area, Area No. 4.

In response to petitions, the Board held public hearings concerning the revision of minimum milk [370]*370prices for the South Central Area of Pennsylvania. Pursuant to Section 801 of the Milk Control Law (Milk Law),1 pre-order conferences were held. At these conferences, Board staff prepared a tentative order, designated A-794, which was introduced along with findings of fact to the Board.

The Board, by a vote of two to one, adopted tentative Order A-794 and posted that order to become effective November 26, 1975.

Ralph Redmond (Appellant) appealed Order A-794 on behalf of himself and certain Franklin County consumers. Appellants were denied leave to proceed in forma pauperis and pursuant to Rule 89 of the Court, agreed with Appellee, Board, upon a statement of facts withdrawing seven of the eleven exceptions. Consequently, we have four procedural questions for disposition:

“1. Did the Pennsylvania Milk Marketing Board abuse its discretion in refusing a subpoena requested on behalf of milk consumers!

“2. Does a violation of the ‘Sunshine Law’ void an action taken by the Pennsylvania Milk Marketing-Board!

“3. Does a member of the Pennsylvania Milk Marketing Board, who casts a deciding vote in the matter under appeal, have a conflict of interest such that his vote should be declared unlawful!

“4. Are General Orders of the Pennsylvania Milk Marketing Board required to be filed with the Pennsylvania Legislative Reference Bureau!”

Turning to Appellant’s first question, the Board has the power “to issue subpoenae requiring the attendance and testimony of, or the production of pertinent books and papers by, milk dealers or handlers or their employes, producers or their employes, per[371]*371sons having business dealings with milk dealers or handlers or producers, or other persons whom the Commission believes to have information, books or papers of importance to it in carrying out the purposes and intent of this Act,”2 Mindful, that the function of a subpoena duces tecum does not sanction the production of masses of books, papers and records for unbridled scrutiny, the Board did not abuse its discretion in denying the request of Appellant to subpoena a representative cross-section of the Pennsylvania Milk Marketing Area 4 milk dealers.

Second, the “Sunshine Law,” Act of July 19, 1974, P.L. 486, 65 P.S. §261 et seq., provides that “[n]o formal action shall be valid unless such formal action is taken during a public meeting.”3 Appellant alleges that since the effect of the non-public meeting on the final outcome is unknown, the action of the Board should be invalid. Not having alleged any further facts to support their contention, we see no merit to this position when extensive hearings are held and the decision of the Board is filed supported by complete findings of fact.

Next is raised the question of conflict of interest involving a member of the Board. In Milk Control Commission v. Louden Hill Farm, 87 Dauphin 254 (1967), aff’d sub nom., Milk Control Commission v. Lily-Penn Food Stores, 434 Pa. 189, 253 A.2d 630 (1969), while we disagree with the learned judge’s distinction between legislative and adjudicatory and will discuss this question infra, we conclude, as he did, that there is no conflict' of interest which would void the order of the Board.

Our inquiry now turns to whether the Board’s determination was an adjudication or regulation. In [372]*372Pittsburgh v. Pennsylvania Public Utility Commission, 182 Pa. Superior Ct. 376, 126 A.2d 777 (1956), the Superior Court unequivocally held the ratemaking function to be an exercise of legislative power. However, in Man O’War Racing Association, Inc. v. State Horse Racing Commission, 433 Pa. 432, 250 A.2d 172 (1969), the Supreme Court held that an appeal should be from any action which is adjudicatory in nature and which affects current property rights. The Court reasoned that an applicant for a racing license, if refused, was directly affected in that his ability to earn purses in the Commonwealth had been taken, and that labeling of the determination as other than adjudicatory would not diminish the adjudicatory nature of finally affecting the individual’s property right. Newport Homes, Inc. v. Kassab, 17 Pa. Commonwealth Ct. 317, 332 A.2d 568 (1975). See also Pittsburgh v. Insurance Department of Pennsylvania, 448 Pa. 466, 294 A.2d 892 (1972); and Pittsburgh v. Blue Cross of Western Pennsylvania, 4 Pa. Commonwealth Ct. 262, 286 A.2d 475 (1971), rev’d on other ground, sub nom., have extended the sweeping holding of Man O’War to the extent that ratemaking determinations of the Commission are no longer subject to the strictures of Pittsburgh v. Pennsylvania Public Utility Commission, supra4

[373]*373In Blue Gross, we held that approval of a rate increase by the Insurance Commissioner for Blue Cross of Western Pennsylvania was adjudicatory and was subject to the Administrative Agency Law. This holding was bottomed upon our perception of the distinction between the regulatory (legislative) function of rate approval and the possible adjudicatory (judicial) effect thereof if the rate proceeding were to be directed to a specific rate increase affecting a specific geographic area. Judge Manderino, now Justice Manderino, writing for this Court, stated:

“The definition of adjudication is very broad, as is the definition for regulation. If we attempt to find a distinction between them, we must look to the proceeding before the Commissioner in this case. It was not a proceeding to determine a rule or regulation involving rate increases of general application throughout the Commonwealth. It was a proceeding to determine specifically whether an individual non-profit corporation would be entitled in a specific geographic area to a specific rate increase. This has all the earmarks of a judicial function, not a legislative function. Indeed, we might test this by considering whether or not the Legislature itself could by legislative enactment pass legislation specifically referring to Blue Cross of Western Pennsylvania and stating in the legislation that a specific corporation was entitled to charge a specific rate to subscribers. There can be no question that such legislation would be special legislation which is prohibited by the Constitution. See Constitution of Pennsylvania, Art. 3, §32.

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Bluebook (online)
363 A.2d 840, 26 Pa. Commw. 368, 1976 Pa. Commw. LEXIS 1307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redmond-v-commonwealth-pacommwct-1976.