dissenting.
I respectfully dissent from the majority’s affirmance of the Board’s denial of Petitioner’s application for reconsider*90ation. Specifically, I disagree with the majority’s characterization of Petitioner’s argument, that dealers and retailers must show a threshold need for a price increase based upon aggregate milk sales, as “merely questioning] the Board’s procedure.” (Op. at 87.) Rather, I believe that the Milk Marketing Law (Law), Act of April 28, 1937, P.L. 417, as amended, 31 P.S. §§ 700j — 101 through 700j-1204, and this Court’s decisions in Lily Penn Food Stores, Inc. v. Pennsylvania Milk Marketing Board, 80 Pa.Commonwealth Ct. 266, 472 A.2d 715 (1984) (Lily Penn III), and Lily Penn Food Stores, Inc. v. Milk Marketing Board, 62 Pa.Commonwealth Ct. 597, 437 A.2d 485 (1981) (Lily Penn II), require the Board as a matter of substantive law to consider this evidence prior to establishing milk prices.
Section 801 of the Law, 31 P.S. § 700j — 801, provides in pertinent part that “[t]he board shall base all prices upon all conditions affecting the milk industry in each milk marketing area, including the amount necessary to yield ... a reasonable return on aggregate milk sales by milk dealers or handlers and stores selling milk.” (Emphasis added.) We held in Lily Penn II that:
In complying with the statutory [directivés in Section. 801], the board must be guided by the primary language of Section 801, which mandates board consideration of ‘all conditions affecting the milk industry in [the] area.’ That language reflects legislative recognition of the varied elements affecting prices, along with imminent transition and growth in the industry.
62 Pa.Commonwealth Ct. at 603, 437 A.2d at 489. See also Lily Penn III (Board must follow provisions of Section 801 of the Law).
In the instant case, the Board argued that it was not required to consider such evidence and that a threshold determination of the need for a price increase based upon aggregate milk sales would require it to adopt a different procedure than that presently utilized. However, in light of the above discussion I cannot accept this argument.
*91Accordingly, the affirmance of the Board’s denial of Petitioner’s application for reconsideration based upon the characterization of Petitioner’s argument as procedural is not supported by the law or by the Lily Penn cases, and I would reverse the Board’s denial for those reasons.