dissenting.
I respectfully dissent from the majority’s grant of the Board’s motion to dismiss Petitioner’s appeal from Order A-860, which was based upon the premise that Petitioner did not preserve for our review the issues raised in her application for reconsideration filed with the Board after the Board had completed its hearings. The majority further characterizes the relief sought by Petitioner as “alternative findings which would require reconvening the Board for additional testimony.” (Op. at 81.) For the following reasons, I believe that the issues before this Court were preserved for our review by virtue of Petitioner’s motion for reconsideration and that the majority mischaracterizes the relief sought by Petitioner.
Section 703 of the Administrative Agency Law, 2 Pa.C.S. § 703, and Pa. R.A.P. 1551 both provide that issues not raised before an agency cannot be raised on appeal. Here, while it is true that the issues before us were not raised at the hearings before the Board, it would seem that they could not have been raised at that time because they involve the question of whether there was substantial evidence to support the Board’s findings, and the Board’s alleged failure to require certain evidence mandated by the Milk Marketing Law (Law), Act of April 28, 1937, P.L. 417, as amended, 31 P.S. §§ 700j-101 through 700j-1204, and by this Court in Lily Penn Food Stores, Inc. v. Pennsylvania Milk Marketing Board, 80 Pa.Commonwealth Ct. 266, 472 A.2d 715 (1984), and Lily Penn Food Stores, Inc. v. Milk Marketing Board, 62 Pa.Commonwealth Ct. 597, 437 A.2d 485 (1981). As the first opportunity in this case for Petitioner to raise these issues before the Board was in her timely filed application for reconsideration, I consider them properly preserved for our review.
With regard to the relief sought by Petitioner, Section 801 of the Law, 31 P.S. § 700j-801, provides in pertinent part that “[u]pon application ... from a person aggrieved by an order of the board ... the board may ... issue an order revising or amending such order without a further *84hearing, if such revision or amendment is based on the record of the hearing held prior to the issuance of such order.” Section 901 of the Law, 31 P.S. § 700j — 901, further provides that “[r]efusal by the board of any application for revision or amendment, filed as provided in section [801], shall constitute an appealable action....”
In the instant case, the issues raised by Petitioner need not have required a further hearing and could have been addressed by the Board based on the hearing record, i.e., the Board could have explained where in the record there was substantial evidence to support the findings disputed by Petitioner and why evidence required under the law apparently was not received or requested, especially in light of the Board’s failure to provide any findings with its original order. The Board merely denied Petitioner’s application without comment. As such, it was the Board which failed to provide this Court with guidance on these issues.
In light of the above, I believe that the majority improvidently granted the motion to dismiss, and I would deny the motion for those reasons.
ORDER
AND NOW, February 13, 1990, the motion to dismiss Petitioner’s appeal of the Pennsylvania Milk Marketing Board Order A-860 is granted. The Board’s order denying Petitioner’s application for reconsideration is affirmed.