Opinion by
These cross appeals bring before us for review an order of the Milk Marketing Board (Board), Official General Order No. A-807, providing for certain increases in milk prices for Milk Marketing Area No. 5. The City of Pittsburgh (City), representing the consumers, is the appellant at No. 778 C.D. 1977, while Schneider’s Dairy, Inc. et al., representing milk dealers within the affected area, are the appellants at No. 988 C.D. 1977. The Greater Pittsburgh Dairy Industry is an intervenor in the former appeal, while the City of Pittsburgh has sought to intervene in the latter.
Hearings on the subject of milk prices were held March 2, 3, and 4, 1977. A tentative order was issued on April 12, supplemented by the official order effective April 20.
No. 778 C.D. 1977
In its appeal, the City first raises for our consideration its contention that the 3% rate of return on sales allowed to dealers by the Board in its findings is unnecessarily high and that, in fact, the effective rate of return is actually in excess of 3%. After a
By Mr. Daniels (counsel for the dealers):
Q. ... I am going to ask Mr. Herbein to request the Board to increase our gallon price in order that we would have a reasonable return of six percent before taxes, and three after on sales.
How much would the gallon price have to be increased?
A. To accomplish six percent before tax, and to include in that calculation the cost increases that we have experienced, or are experiencing subsequent to September 30, requires a 19.56 cents increase per gallon.
It is readily apparent from this colloquy that the witness was asked to accept an assumption made by counsel as to the reasonableness of the return and merely proffered his opinion as to what cost per gallon increase was necessary to yield that return. To pass • upon the merits of this appeal on the present
This same reasoning is equally applicable to the City’s second contention. The City urges us to hold that the store margin allowed by the Board lacks support in the record. The Board’s finding on this issue follows, in part:
Nothing appeared in this record concerning in-store handling costs or store margins. The Board closely monitors store margins in all areas of the State and therefore must rely on its general knowledge of the industry in writing this Order. We find that a 14% markup for stores is reasonable. . . . Applying 14% to the delivered cost of $1.31 ... , we arrive at an out-of-store price of $1.49 per gallon. That price is the out-of-store price in this new Order.
Again, our thorough search of the voluminous record presented before the Board fails to reveal any evidence on this precise issue. As our Supreme Court stated in Colteryahn Sanitary Dairy v. Milk Control Commission, 332 Pa. 15, 21, 1 A.2d 775, 778-9 (1938):
[T]he Commission may make its independent survey of the milk industry in the particular area to acquire a just and fair understanding of the problems before it. But the result of that survey should bo placed on the record of the hearing before the Commission, and the parties who made the survey should be subject to such cross-examination as is proper. Interested parties should be accorded opportunityPage 404to test the reliability of the Commission’s evidence before an order is promulgated, revised or changed.
Though the close monitoring to which the Board refers may not, in this instance, refer to a formal survey, it is clear that the same logic applies. As the Court, in Colteryahn, supra, also stated:
It is the general intent and purpose of the Act that in the promulgation, revision or change of official orders fixing prices, a definite record should be made of all evidence produced before the Commission, and all matters upon which it bases its order. (Emphasis added.)
332 Pa. at 20-21, 1 A.2d at 778.
In this particular case, the City had no opportunity to test the reliability of the Board’s evidence. Its so-called “general knowledge of the industry” was not made part of the record. "We must conclude again, that, due to the lack of evidence in the record with respect to in-store margins, we cannot pass upon the merits of this question.
No. 988 C.D. 1977
By Order of President Judge Bowman, the Board’s motion to quash the dealers’ appeal at No. 988 C.D. 1977 on the grounds that they (the dealers) are not aggrieved, was directed for argument at the same time as argument on the merits.
Section 901 of the Milk Marketing Law (Law), Act of April 28, 1937, P.L. 417, as amended, 31 P.S. §700j-901, provides that:
Any person aggrieved by an order of the board fixing, revising or amending the price at, or the terms upon, which milk may be bought or sold, or by any other general action, rule, regulation or order of the board, may . . . file an appeal therefrom ....
Accordingly, we
Order,
And Now, this 23rd day of May, 1978, it is hereby ordered that the record in this proceeding be remanded to the Milk Marketing Board for the purpose of its review and revision of Official General Order No. A-807 and, if necessary, modification thereof, consistent with the opinion to the end that its discussion, findings of fact and conclusions of law are sufficiently comprehensive to enable this Court to pass upon the merits of any appeal from such revised order, with the prices as fixed in Official General Order No. A-807 to remain in effect.