JERILU FRUIT CENTER v. DELORENZO & STEFLIK BROKERAGE INC. PACA Docket No. 9711. Dismissal-Settled JOHN INGLIS FROZEN FOODS COMPANY v. GISINGER SOUTH- WESTERN FOOD DISTRIBUTORS, INC., A/T/A SOUTHWESTERN JOHN INGLIS FROZEN FOODS COMPANY v. GISINGER SOUTH- WESTERN FOOD DISTRIBUTORS, INC., A/T/A SOUTHWESTERN JUSTAMERE FARMS, INC. v. FORT PITT TOMATO & PRODUCE CO. LACONADO PRODUCE, INC. v. NEM-AR-CO DISTRIBUTING, INC. PACA Docket No. 9539. Contract term-"Terminal quality" of lettuce-Good delivery-Acceptance by diversion LEE BROS. FARMS v. LAROSA TOMATO DISTRIBUTORS, INC. MANDELL, SPECTOR, RUDOLPH Co. PACA Dockets No. 8998 MANTECA FROZEN FOODS v. GRIFFIN GROCERY COMPANY, a/t/a 892 SETRAKIAN AND COMPANY v. TURNER PRODUCE COMPANY, INC. 919 SMITH, CLYDE E. v. EDDIE ITULE BROKERAGE Co. PACA 921 THOMPSON & JOHNSON POTATO Co. v. CITY POTATOE SALES. TOM SANDIFER RANCH v. BRUCE HILL. PACA Docket No. 921 TROPICANA IMPORTING COMPANY, INC. v. BANANA TOWN, INC. VERDE FARMS Co. v. TURNER PRODUCE COMPANY, INC. PACA 919 WEISS BROKERAGE COMPANY v. MANTECA FROZEN FOODS WILCO PRODUCE COMPANY v. PACKER'S SUPER MARKETS, INC.__ PACA Docket No. 9597. Suitable shipping condition-Good WOLVERINE FRUIT Co. v. HENRY J. SCIAMBRA & HOLLIS M. 919 BEFORE THE SECRETARY OF AGRICULTURE UNITED STATES DEPARTMENT OF AGRICULTURE (No. 9875) In re ADAMSON DAIRY, INC. AMA Docket No. M 33-1. Decided June 4, 1965. Handler-Fluid milk plant-Termination of obligations Petitioner, who purchased and received milk at its plant from dairy farmers, processed it and sold the milk in bottled form to an independent dealer for distribution on routes in the marketing area, was a handler operating a nonpool plant during the period involved, and as such, the termination of obligations provision is applicable and petitioner may recover only those payments made into the producer-settlement fund not barred by such provision. George, Greek, King & McMahon, Columbus, Ohio, for petitioner. Messrs. John A. Campbell and George G. Rayburn, for respondent. Mr. Jack W. Bain, Hearing Examiner. Decision by Thomas J. Flavin, Judicial Officer PRELIMINARY STATEMENT This is a proceeding under section 8c (15) (A) of the Agricultural Adjustment Act (1933), as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 and subsequent amendments (7 U.S.C. 601 et seq.), involving the validity of obligations imposed against petitioner as owing to the producersettlement fund under Order No. 33 (7 CFR 1033), issued under the act and regulating the handling of milk in the Greater Cincinatti marketing area.1 Petitioner challenges the validity and applicability of section 1033.61 of the order which imposes the disputed charges. Respondent filed an answer to the petition and the amended petition upholding the validity of the contested provision of the order, its applicability to petitioner and the charges resulting therefrom. Respondent further alleges that section 1033.78 of the order bars recovery as to a portion of petitioner's claim. 1 Effective January 1, 1962, the order regulating the handling of milk in the Greater Cincinnati marketing area, previously designated as Order No. 65, was renumbered as Order No. 33 (26 F.R. 12752), and shall be referred to herein by that designation. Cite as 24 A.D. 749 An oral hearing was held before Jack W. Bain, Hearing Examiner, Office of Hearing Examiners, United States Department of Agriculture, July 7, 1964, in Cincinnati, Ohio. At the hearing, petitioner was represented by Darold I. Greek, of George, Greek, King & McMahon, Attorneys at Law, Columbus, Ohio, and respondent was represented by John A. Campbell and George C. Rayburn, Office of the General Counsel, United States Department of Agriculture. After the hearing, the parties filed briefs. On April 30, 1965, the hearing examiner filed a report containing proposed findings of fact and conclusions and recommending that the relief requested by petitioner be granted. Respondent filed exceptions to the hearing examiner's report. FINDINGS OF FACT 1. Petitioner, Adamson, Dairy, Inc., is a corporation organized and existing under the law of the State of Ohio whose address is East State Street, Georgetown, Ohio. During the period May 1959 to June 15, 1961, petitioner was a handler regulated by Order No. 33, as amended, issued under the act and regulating the handling of milk in the Greater Cincinnati marketing area. 2. During the period May 1, 1959 to June 15, 1961, petitioner operated a milk processing plant at Georgetown, Ohio, located outside the marketing area under the order. Petitioner purchased milk from dairy farmers, received such milk at its plant, processed and packaged such milk there in glass containers or bottles and sold such milk in bottled form. The milk it sold in paper containers was purchased from another milk plant which was not regulated under the order, the plant of Swonger Dairy, Inc., Hillsboro, Ohio. 3. During the period May 1, 1959 to June 15, 1961, petitioner sold milk in glass bottles and paper packages to John Tucker, a jobber or dealer who distributed part of such milk, including the milk in glass bottles, on a route or routes in Clermont County, Ohio, which became a part of the marketing area under the order effective May 1, 1959. 4. On June 15, 1961, petitioner discontinued processing milk at its plant at Georgetown and has not processed milk nor purchased milk from dairy farmers since that time. Petitioner continues to purchase, in packaged form, the milk it sells in paper containers from Swonger Dairy, Inc. Since June 15, 1961, petitioner has purchased, in packaged form, the milk it sells in Cite as 24 A.D. 749 glass bottles from Model Dairy, Chillicothe, Ohio, which is not regulated under the order. During the period June 20 to December 10, 1962, petitioner distributed milk within the marketing area in addition to milk distributed there by John Tucker. 5. During the period involved herein, petitioner filed reports with the market administrator for the order which listed sales in the marketing area but which did not indicate petitioner's sources of milk. The market administrator assessed petitioner for charges owing to the producer-settlement fund pursuant to section 1033.61 of the order and petitioner paid such charges during the period May 1959 through August 1963 in the total amount of $12,880.28. CONCLUSIONS The controversy herein has been narrowed at this stage of the proceeding to whether petitioner was a handler as defined in the order during the period May 1, 1959 to June 15, 1961 and whether part of petitioner's claim for refund for payments made by it into the producer-settlement fund under the order pursuant to section 1033.61 of such order is barred by section 1033.78 thereof. The answer to the latter inquiry depends upon a determination of the former. Section 1033.11 of the amended order during the pertinent period defined the term "handler" to mean, in part, "(a) any person who operated (1) a pool plant; or (2) a fluid milk plant which is a nonpool plant . . ." Section 1033.6 thereof in turn defined a "fluid milk plant" to mean "a plant or other facilities used in the preparation or processing of milk, all or a portion of which is disposed of during the month on a route (s) operated wholly or partially in the marketing area." During the period May 1, 1959 to June 15, 1961, petitioner purchased and received milk from dairy farmers at its Georgetown, Ohio, plant, processed and packaged such milk there in glass containers or bottles, and sold such milk in bottled form. At the same time, petitioner resold milk in paper containers or packages purchased from the plant of Swonger Dairy, Inc., a milk plant which was not regulated under the order. It is clear that during the period involved herein petitioner's plant at Georgetown, Ohio, was a nonpool plant and "a plant . . . used in the preparation or processing of milk" in glass containers. Similarly, it is agreed |