90 Pa. Commw. 268 | Pa. Commw. Ct. | 1985
Opinion by
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.
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,
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
Since Guers did not press its first contention and its counsel stated at oral argument that it was relying entirely upon the second contention,
When reviewing the discretionary acts of an agency, we will only overturn the agency’s action where the agency acts in bad faith, fraudulently, capriciously or committed an abuse of discretion. Kerbeck v. Department of Transportation, 74 Pa. Commonwealth Ct. 300, 302, 459 A.2d 908, 909 (1983); Holloway v. Department of Public Welfare, 67 Pa. Commonwealth Ct. 6, 9, 445 A.2d 1329, 1331 (1982). Where an agency has been vested with broad discretionary power, as has the Board, we will only find that the Board made an arbitrary, capricious or unreasonable determination in the absence of substantial evidence to support that determination. Appeal of Mutual Supply Co., 366 Pa. 424, 426, 77 A.2d 612, 614 (1951); Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 49, 57-58, 484 A.2d 413, 418 (1984).
Our review of the record before us convinces us that there is substantial evidence to support the Board’s order revoking Guers’ milk dealer’s license.
Accordingly, we will affirm the Board’s order.
Obdeb
And Now, this 25th day of June, 1985, the order of the Pennsylvania Milk Marketing Board at Legal Docket No. C-84-7, dated September 21, 1984, which revoked the milk dealer’s license of Guers Dairy, Inc., for the licensing year 1984-1985, is hereby affirmed.
On October 17, 1984, the Board granted Guers a supersedeas of its September 21, 1984 revocation order during the pendency of this appeal. As a result of that supersedeas, Guers has been able to continue in business pending our resolution of this appeal.
OGÓ No. A-844A, effective January 13, 1982, establishes minimum prices for milk and milk products for the Northeastern Milk Marketing Area, Area 3.
Act of April 28, 1937, P.L. 417, as amended, 31 P.S. §700j-807. This provision makes it unlawful for milk dealers to sell milk below the minimum prices or above the maximum prices set by the Board.
Section 404.1 of the Law, 31 P.S. §700j-404.1, provides that in eases where the Board suspends a license, the Board may accept from the licensee an offer of compromise at the rate of fifty dollars per day for each day of the suspension as a penalty in lieu of the suspension and thereby rescind the suspension. The alternate penalty of $4,800 proposed by the hearing examiner was calculated under this provision. ($50/day times 96 days equals $4,800).
In making its decision to reject the hearing examiner's proposed penalty and deciding instead to revoke Guers’ milk dealer’s license for one year, the Board made specific reference to Guers’ prior violations and the need for some punitive action against Guers in response to those recurring violations.
In passing, however, we note that issues such as those involved in Guers’ first contention have been resolved against it. See NLRB v. Seven-Up Bottling Co., 344 U.S. 344 (1953) (NLRB is not confined to the record of a single proceeding in deriving a remedy) ; Market Street Railway v. Railroad Commission, 324 U.S. 548 (1945) (Commission could properly use revenue figures provided by the company in its monthly reports filed with the Commission but not admitted into evidence in hearings before the Commission).