Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-1996

Sani-Dairy v. Sec Agri
Precedential or Non-Precedential:

Docket 95-3304,95-3304




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"Sani-Dairy v. Sec Agri" (1996). 1996 Decisions. Paper 143.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/143


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              UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                       No. 95-3304


    SANI-DAIRY, a division of Penn Traffic Co., Inc.;
     JOHN P. STRITTMATTER, d/b/a Strittmatters Dairy;
       DELBERT THOMAS; ED THOMAS; LOWELL FRIEDLIN;
              ARTHUR BLOOM; JAMES L. HARTEIS

                             v.

    CLAYTON YEUTTER, Secretary of Agriculture, United
    States Department of Agriculture; COMMISSIONER OF
        AGRICULTURE AND MARKETS, STATE OF NEW YORK

                (D.C. Civil No. 90-cv-00222)


                    MILK MARKETING, INC.

                             v.

        CLAYTON YEUTTER, Secretary of Agriculture,
         United States Department of Agriculture

                (D.C. Civil No. 90-cv-00236)


       CLAYTON YEUTTER, Secretary of Agriculture,
        United States Department of Agriculture;
        DAN GLICKMAN, Secretary of Agriculture,
        United States Department of Agriculture
             and UNITED STATES OF AMERICA,*
                                         Appellants
           (*Pursuant to Rule 12(a), F.R.A.P.)



     ON APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR THE WESTERN DISTRICT OF PENNSYLVANIA



Submitted under Third Circuit LAR 34.1(a) on March 15, 1996

 Before:   NYGAARD, SAROKIN and ALDISERT, Circuit Judges.

              (Opinion Filed: July 31, 1996)
                                     Marvin Beshore
                                     Milspaw & Beshore
                                     130 Locust Street
                                     P.O. Box 946
                                     Harrisburg, PA 17108-0946

                                     Attorney for Appellees
                                     SANI-DAIRY, a division of
                                     Penn Traffic Co., Inc.,
                                     JOHN P. STRITTMATTER, dba
                                     Strittmatters Dairy,
                                     DELBERT THOMAS, ED THOMAS,
                                     LOWELL FRIEDLIN, ARTHUR
                                     BLOOM, JAMES L. HARTEIS

                                     Glen W. Wagner
                                     3858 North Cliff Road
                                     Port Clinton, OH 43452

                                     Attorney for Appellee
                                     MILK MARKETING, INC.

                                     Edward R. Cohen
                                     United States Department
                                     of Justice
                                     10th & Constitution
                                     Avenue, N.W.
                                     Washington, DC 20530

                                     Attorney for Appellants



                      OPINION OF THE COURT



PER CURIAM.

     Several Pennsylvania dairy farmers and a dairy cooperative
challenge the validity of the Secretary of Agriculture's
regulations governing the marketing of fluid milk in the New
York-New Jersey milk marketing area. Plaintiffs allege that the
Secretary's regulations, promulgated under the Agricultural
Marketing Agreement Act of 1937, 7 U.S.C.   601 et seq., violate
7 U.S.C.   608c(5)(G), which states:
No marketing agreement or order applicable to milk and its
products in any marketing area shall prohibit or in any manner
limit, in the case of the products of milk, the marketing in that
area of any milk or product thereof produced in any production
area in the United States.

The district court found that the Secretary's regulations
governing the marketing of fluid milk in the New York-New Jersey
milk marketing area, as applied to plaintiffs, constituted a
prohibited economic trade barrier to milk producers and sellers
outside the New York-New Jersey milk marketing area. See Lehigh
Valley Cooperative Farmers, Inc. v. United States, 

,
91-98, 

, 1175-1180 (1962). The district court
awarded plaintiffs restitution and interest. We will now affirm,
and in so doing adopt the reasoning of the district court
expressed in Sani-Dairy v. Yeutter,     F.Supp.    , No.
CIV.A.90-222J, 

(W.D. Pa. Mar. 27, 1995) and Sani-
Dairy v. Espy,     F.Supp.    , NO. CIV.A. 90-222J, CIV.A. 90-
236J, 

(W.D. Pa. Dec. 30, 1993).