42 Pa. Commw. 92 | Pa. Commw. Ct. | 1979
Opinion by
On December 2, 1976, the Suburban Philadelphia Milk Dealers Association and six individual dairies (hereafter collectively referred to as respondents) petitioned the Pennsylvania Milk Marketing Board (Board) to conduct hearings on the question of wheth
Petitioner, which operates 22 convenience stores selling dairy products in Area 1, eleven of which are located in Zone 2, filed the instant appeal, contending the Board’s findings lack sufficient specificity for adequate appellate review, that the Board exceeded its statutory authority in creating the new zones and that there was insufficient evidence to support the Board’s order.
Turning to petitioner’s first argument that the Board’s findings are inadequate for the proper exercise of appellate review, we note that the essential test in determining the adequacy of findings of fact is whether those findings admit to any speculation in determining what elements of testimony the Board relied upon in reaching its conclusion. After reviewing the testimony before the Board, we find no confusion in determining what testimony the Board found relevant and probative in determining the issue before it. The question before the Board was whether two zones should be created in Area 1 and if so what the geographical boundary between those zones should be. In its Finding of Fact (6) the Board found respondent’s witness “ demonstrate [d] the highly significant differences between the topography and demography of the areas of Bucks and Montgomery Counties north of the Pennsylvania Turnpike and all of Chester County and the areas of Bucks and Montgomery Counties south of the Turnpike and all of Philadelphia and Delaware Counties: and further that this witness “ demonstrate [d] the differences of margins available to dealers computed from raw milk to established Board prices between Milk Marketing Area I . . . and the two adjoining milk marketing areas. ...” Conversely in Finding of Fact (9) the Board found petitioner’s District Sales Supervisor’s testimony “inaccurate and misleading”; in Finding of Fact (10) the Board found the statistician’s conclusion “unjustified” in light of subsequent testimony; and finally in Finding of Fact (11) the Board
Petitioner’s argument that the Board exceeded the scope of its statutorily defined duty is equally without merit. Section 801 of the Milk Control Law (Law), Act of April 28, 1937, P.L. 417, as amended, 31 P.S. §700j-801, provides, “The board shall ascertain . . . the logical and reasonable milk marketing areas within the Commonwealth, [and] shall describe the territorial extent thereof. ...” Since the Law does not provide a definition of or the determining factors to be considered in ascertaining a “logical and reasonable” area, this decision is left to the discretion of the Board. Thus, the question is reduced to whether the Board has abused its discretion. To constitute an abuse of discretion, the Board must have based its conclusion to divide Area 1 into two zones upon wholly arbitrary grounds, in capricious disregard of competent evidence. Petitioner argues that there was no evidence to show the proportionate shares of sales represented by respondents within each of the proposed zones establishing the reasonableness of the creation of such zones. Petitioner’s focus on sales and shares of a given market ignores the express mandate of the Legislature that the Board consider in defining a market area that which will “best protect the milk industry of the Commonwealth and insure a sufficient quantity of pure and wholesome milk to inhabitants of the Commonwealth, having special regard to the health and welfare of the children residing therein.” Section 801, 31 P.S.
Finally, we address petitioner’s last argument that the Board’s order is not supported by any relevant or competent evidence. What we have said thus far is equally relevant here. Those matters, particularly statistical data which are capable of a reasonable ground of difference in interpretation raise technical questions within the Board’s expertise and will not be disturbed by this Court “ [s]o long as the [Board] has a record to support what it has done in its findings and conclusions. . . .” City of Pittsburgh v. Milk Marketing Board, 1 Pa. Commonwealth Ct. 300, 310, 275 A.2d 115, 121 (1971), cert. dismissed, 415 U.S. 902 (1974). It is clear from the Board’s findings of fact that it found the testimony of respondent’s witness relevant and credible on the issue of whether a separate zone should be established and the boundary line separating the two zones. Moreover, the staff report made by the Board’s audit supervisor supports the conclusion that a different marketing zone should be established in the suburban Philadelphia area.
Accordingly, we will enter the following
Order
And Now, April 18, 1979, the Official General Order No. A-813 of the Pennsylvania Milk Marketing
On May 26, 1978 the Board filed a motion to dismiss the Petition for Review, alleging petitioner is without standing to appeal as a party aggrieved by the action of the Board. We dismiss the motion finding petitioner has alleged the requisite direct and substantial interest in General Order No. A-813 to establish standing to appeal from the order. See Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 2.69 (1975).