Opinion
501 C.D. 2024
01-03-2025
Department of Agriculture, by Secretary Russell C. Redding, and Office of Attorney General, by Attorney General Michelle A. Henry, Appellants v. Amos Miller and Rebecca Miller, husband and wife, d/b/a Mill Creek Buffalo and Bird-in-Hand Meats; Miller's Organic Farm (an unincorporated association); Miller's Camel Farm, LLC; Miller Organic Farm, LLC; A-B Farm (an unincorporated association); A-B Farm, LLC; and Bird-in-Hand Grass Fed Meats, LLC
Argued: October 8, 2024
BEFORE: HONORABLE ANNE E. COVEY, JUDGE HONORABLE MICHAEL H. WOJCIK, JUDGE HONORABLE STACY WALLACE, JUDGE
OPINION
STACY WALLACE, Judge
This appeal involves the action of the Department of Agriculture, by Secretary Russell C. Redding, and Office of Attorney General, by Attorney General Michelle A. Henry (collectively, the Department), alleging sales of unpasteurized "raw milk" without a permit by Amos Miller and Rebecca Miller, husband and wife, and related businesses, including Mill Creek Buffalo and Bird-in-Hand Meats; Miller's Organic Farm (an unincorporated association); Miller's Camel Farm, LLC; Miller Organic Farm, LLC; A-B Farm (an unincorporated association); A-B Farm, LLC; and Bird-in-Hand Grass Fed Meats, LLC (collectively, the Millers). The Court of Common Pleas of Lancaster County (trial court) granted a preliminary injunction prohibiting the Millers' raw milk sales in their entirety by order dated March 1, 2024. However, the trial court modified its preliminary injunction to not preclude sales to customers outside Pennsylvania by order dated March 19, 2024. In effect, the trial court granted in part and denied in part the Department's preliminary injunction request. On appeal, the Department challenges the decision to limit the injunction to only sales to customers within the Commonwealth, pending trial on the underlying case, contending the March 19, 2024 order violates statutory provisions known as the Milk Sanitation Law and related regulations. After careful review, we affirm.
Act of July 2, 1935, P.L. 589, as amended, 31 P.S. §§ 645-60g.
BACKGROUND
The Department filed its complaint on January 23, 2024, alleging violations of the Milk Sanitation Law and related regulations, the Food Safety Act, the Retail Food Facility Safety Act, and the Unfair Trade Practices and Consumer Protection Law by the Millers. The Department averred the Millers operate a "buyer's club" in Lancaster County, which requires customers to sign a contract and pay a fee for the ability to purchase raw milk and other products. Reproduced Record (R.R.) at 19a-20a. According to the Department, the Millers sell products in person and "by filling telephone, e[-]mail, fax and internet orders." Id. at 20a-21a. The Department averred the Millers have a history of disregarding food safety laws and cited a case in the United States District Court for the Eastern District of Pennsylvania, finding violations of federal meat and poultry laws and imposing contempt sanctions based on Amos Miller's ongoing noncompliance. See United States v. Miller's Organic Farm, No. 19-cv-1435 (E.D. Pa., filed July 22, 2021).
Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1-201-10.
In relevant part, the Department alleged the Millers were selling raw milk and products manufactured from raw milk without first obtaining a permit or complying with the Commonwealth's "testing, documentation, inspection, sampling, sanitation, handling, and labeling requirements." R.R. at 43a-44a. The Department averred the Millers' raw milk had been linked to illness in other states. Further, the Department averred it executed an administrative warrant and collected samples of the Millers' products on January 4, 2024, some of which tested positive for dangerous bacteria. Based on these claims, the Department requested a declaration that the Millers were violating the Milk Sanitation Law and related regulations. The Department asked that the trial court enjoin the Millers from continuing the violations.
The Department filed a motion for an ex parte special injunction on January 24, 2024, repeating the allegations in its complaint and relying on a statement to the media from the Millers' counsel that their products were healthier, safer, and "better" than other products. R.R. at 380a, 412a. The trial court granted the Department's motion that same day, enjoining the Millers from producing or selling raw milk and requiring that they allow the Department to enter their facilities for the purposes of inspection, records review, and testing. Moreover, the trial court directed the Millers to "cooperate with the Department to notify" customers of illnesses associated with their products and positive tests for dangerous bacteria. Id. at 416a.
The case proceeded to an evidentiary hearing on February 29, 2024, on the preliminary injunction, at which both sides presented testimony. Notably, the Millers' counsel acknowledged during the hearing that the Millers did not have, and did not intend to apply for, a permit to sell raw milk. The Millers were concerned, counsel explained, that a permit would prohibit them from selling other products that the Milk Sanitation Law and related regulations did not expressly authorize, such as raw milk butter, yogurt, colostrum, and kefir. R.R. at 422a, 605a-08a. Counsel for the Department confirmed its belief that the Millers were not allowed to sell those products under any circumstances. Id. at 607a-08a.
By order dated March 1, 2024, the trial court terminated its January 24, 2024 ex parte injunction and issued a preliminary injunction with similar terms. The first paragraph of the preliminary injunction prohibited the Millers "from marketing and selling raw milk and/or products made with or from raw milk." R.R. at 642a. The preliminary injunction included an exception for noncommercial sales to immediate family members. Further, it directed that the Millers allow the Department to enter their facilities for purposes of inspection, records review, and testing. The trial court explained it did not intend to "detract from the sincerely held beliefs of individuals who believe in the benefits of [r]aw [m]ilk [p]roducts" but was constrained to apply Pennsylvania law and could not usurp the authority of the General Assembly. Id. at 643a.
The trial court described the February 29, 2024 evidentiary hearing as an "injunction hearing" without clarifying that a preliminary injunction was under consideration. R.R. at 421a. In its opinion under Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a), the trial court described the injunction as "permanent," rather than preliminary in nature. Id. at 875a. The trial court miswrote, because it was ruling on a request for a preliminary injunction under Rule 1531 of the Pennsylvania Rules of Civil Procedure, Pa.R.Civ.P. 1531. Courts may not generally convert a preliminary injunction hearing into a permanent injunction hearing without the agreement of the parties. Wolk v. Sch. Dist. of Lower Merion, 197 A.3d 730, 741-42 (Pa. 2018).
The Millers filed a motion to modify the preliminary injunction on March 4, 2024. They argued the trial court should modify the preliminary injunction to forbid only raw milk sales to customers in Pennsylvania by adding the words "within this Commonwealth" to the first paragraph. R.R. at 647a. The Millers cited the language of Section 2 of the Milk Sanitation Law, which solely prohibits sales of milk without a permit "within this Commonwealth." Id. (quoting 31 P.S. § 646). They asserted an injunction prohibiting sales to customers outside Pennsylvania would violate "the Supremacy Clause, Commerce Clause, the Privileges and Immunities Clause and the Right to Travel Clause [sic] of the U.S. Constitution." Id.
The trial court granted the requested modification in its March 19, 2024 order. Specifically, the trial court modified the first paragraph of its preliminary injunction order to bar "marketing and selling raw milk and/or products made with or from raw milk . . . within this Commonwealth." R.R. at 653a. The Department responded by filing an expedited motion for clarification on March 26, 2024. The Department requested that the trial court issue an order "clarifying" its March 19, 2024 order and expressly prohibiting the Millers from possessing with the intent to sell or offering for sale raw milk or raw milk products in Pennsylvania, "regardless of where [their] customers reside." Id. at 661a-62a. The Department cited the definitions of "'[t]o [s]ell,' 'for sale' or 'sold' and similar terms" in Section 1 of the Milk Sanitation Law and "sell" in the related regulations, which include "selling, exchanging, delivering, or having in possession, care, control, or custody with intent to sell, exchange, or deliver, or to offer or to expose for sale." 31 P.S. § 645; 7 Pa. Code § 59a.402(a).
The Millers also requested that the trial court enjoin the operations of a website, which they did not control, but which "continue[d] to falsely claim marketing of [their] products, including raw milk products." R.R. at 645a. The trial court granted the Millers' request, ordering the owner of the website to "cease all marketing of [the Millers'] products." Id. at 654a.
By order dated April 12, 2024, the trial court denied the Department's motion for clarification. The trial court explained Section 2 of the Milk Sanitation Law and regulations requiring permits to sell milk and raw milk at 7 Pa. Code §§ 59a.12 and 59a.402 used the phrase "[']within th[is] Commonwealth['] at the same time other applicable regulations do not indicate 'within th[is] Commonwealth.'" R.R. at 699a (citations and underlining omitted). The trial court cited generally to Title 7 of the Pennsylvania Administrative Code, concluding the absence of "within this Commonwealth" in other regulations under Title 7 rendered the law governing milk permits ambiguous. The trial court explained it would not hold this ambiguity against the Millers.
In its Rule 1925(a) opinion, the trial court reasoned Section 2 of the Milk Sanitation Law is inconsistent with the related regulations at 7 Pa. Code § 59a.402 because these provisions "did not both indicate 'within the Commonwealth.'" R.R. at 875a, 880a. Thus, the trial court explained, "ambiguity lies when using both statutes [sic] simultaneously in the regulation of raw milk and raw milk products." Id. at 880a-81a.
Moreover, the trial court explained it would "decline to blur the line between the regulation of raw milk sales in the Commonwealth and interstate commerce." R.R. at 699a. The trial court pointed to federal cases involving other raw milk dairies in Pennsylvania and California. See United States v. Allgyer, No. 11-02651 (E.D. Pa., filed Feb. 2, 2012); United States v. Organic Pastures Dairy Co., LLC, No. 1:08-CV-01786-JLT-SAB (E.D. Cal., filed July 26, 2023). Likewise, the trial court reasoned, "[Food and Drug Administration] or United States Department of Agriculture involvement in the case at bar seems appropriate." R.R. at 699a.
The Department timely appealed from the March 19, 2024 order. On appeal, the Department emphasizes the definitions of "[t]o [s]ell" and similar terms under the Milk Sanitation Law and related regulations, which include not just selling in a conventional sense but also possession with intent to sell and offering or exposing for sale. Department's Br. at 21, 26-28. According to the Department, the statute and regulations are consistent and, to the extent they are not, the statute controls over the regulations and prohibits the Millers from selling raw milk without a permit. Id. at 21, 28-30. To allow sales without a permit, the Department maintains, would lead to absurd results and create a system in which anyone can "come into Pennsylvania, ignore food safety laws, and sell unsafe products anywhere in the country except Pennsylvania." Id. at 21-22, 32-36.
Both the trial court and this Court denied the Department's requests to stay modification of the preliminary injunction in the March 19, 2024 order. However, this Court directed the appeal be heard on an expedited basis.
DISCUSSION
The trial court's March 19, 2024 order modified its prior March 1, 2024 order to not preclude sales of raw milk to customers outside of Pennsylvania. In effect, the March 19, 2024 order partially denied the Department's request for a preliminary injunction barring all raw milk sales. We generally review preliminary injunction orders under a "highly deferential" abuse of discretion standard of review. Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1000 (Pa. 2003). We do not inquire into the merits of the case but examine the record "to determine if there were any apparently reasonable grounds" to support the trial court's decision. Chan v. Ass'n of Prop. Owners of the Hideout, Inc., 323 A.3d 92, 100 (Pa. Cmwlth. 2024) (quoting Mazzie v. Commonwealth, 432 A.2d 985, 988 (Pa. 1981)). This Court will reverse "[o]nly if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied." Id. (quoting Mazzie, 432 A.2d at 988). The party requesting a preliminary injunction must establish the following factors:
First, a party seeking a preliminary injunction must show that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages. Second, the party must
show that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings. Third, the party must show that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct. Fourth, the party seeking an injunction must show that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits. Fifth, the party must show that the injunction it seeks is reasonably suited to abate the offending activity. Sixth and finally, the party seeking an injunction must show that a preliminary injunction will not adversely affect the public interest.Summit Towne Ctr., 828 A.2d at 1001 (citations omitted).
Our courts have recognized that granting a preliminary injunction is a "harsh and extraordinary remedy." Cutler v. Chapman, 289 A.3d 139, 150 (Pa. Cmwlth. 2023) (quoting Pa. AFL-CIO by George v. Commonwealth, 683 A.2d 691, 694 (Pa. Cmwlth. 1996)). The purpose of a preliminary injunction is to provide interim relief and preserve the status quo until a court resolves the case on the merits. DiLucente Corp. v. Pa. Roofing Co., Inc., 655 A.2d 1035, 1037 (Pa. 1995). Stated differently, a preliminary injunction is not meant to be a final resolution of the underlying claims, particularly where the parties have not had the opportunity to engage in discovery or fully prepare their arguments. Gun Owners of Am., Inc. v. City of Phila., 308 A.3d 401, 404-05 (Pa. Cmwlth. 2024) (en banc).
A related concern is the less stringent evidentiary standards that may apply in preliminary injunction proceedings. Under Rule 1531(a) of the Pennsylvania Rules of Civil Procedure, "[i]n determining whether a preliminary or special injunction should be granted . . . the court may act on the basis of the averments of the pleadings or petition and may consider affidavits of parties or third persons or any other proof which the court may require." Pa.R.Civ.P. 1531(a). During the evidentiary hearing, the Department relied on this less stringent standard to seek admission of an affidavit from its Microbiology Section supervisor and of an e-mail from the New York State Department of Health. R.R. at 465a-67a, 491a-93a. The fact that a party may obtain a preliminary injunction without adhering to the formal rules of evidence shows why it is generally imperative a preliminary injunction not serve as the final resolution of a case.
The Millers argue a preliminary injunction of their out-of-state raw milk sales would bankrupt them, cause them to lose their family farm, and effectively end the case before the trial court can decide the merits. Millers' Br. at 20, 47-48. On this issue, we find persuasive Watson v. Perdue, 410 F.Supp.3d 122, 131 (D.D.C. 2019), recognizing loss of a family farm constitutes irreparable harm because "[i]t involves the loss of generations of family history, sweat-equity, and memories," and monetary damages are no substitute. See also Carlini v. Highmark, 756 A.2d 1182, 1188 (Pa. Cmwlth. 2000) (quoting W. Penn Specialty MSO, Inc. v. Nolan, 737 A.2d 295, 299 (Pa. Super. 1999)) (observing irreparable harm includes "the impending loss of a business opportunity"). The Department does not dispute a preliminary injunction would bankrupt the Millers, and it presented no evidence to the contrary during the evidentiary hearing. For these reasons, prohibiting the Millers' out-of-state raw milk sales would "substantially harm other interested parties in the proceedings," Summit Towne Centre, 828 A.2d at 1001, and we conclude the trial court had "apparently reasonable grounds" to deny the Department's preliminary injunction request, Chan, 323 A.3d at 100 (quoting Mazzie, 432 A.2d at 988).
To the extent the Department has addressed substantial harm, it contends this issue is irrelevant because the Millers are not entitled to violate the law. Appl. to Stay, 7/11/24, at 27-28. Essentially, the Department argues the Millers are violating the Milk Sanitation Law and related regulations, which establishes per se irreparable harm and overcomes any need to consider the equities of the case.
The trial court did not make any factual findings in support of its preliminary injunction orders. Thus, the trial court did not find there would be irreparable harm without a preliminary injunction. On the issue of whether the Millers' raw milk can be linked to illness or is otherwise dangerous, the Department relied on expert testimony. R.R. at 485a-518a. The Department did not present any witnesses who testified they were ill after consuming the Millers' raw milk products. The Millers countered with their own expert testimony to refute the Department's expert. Id. at 565a-82a. The trial court did not make a finding on credibility or otherwise in this regard. However, it would not make sense for this Court to remand for the trial court to make a finding because the Department presented no evidence whatsoever on the prong dealing with whether the injunction would not substantially harm the Millers.
Arguably, the Department presented no evidence that granting the preliminary injunction would not adversely affect the public interest. The Court acknowledges the first two prongs, which focus on whether an injunction is necessary to prevent irreparable harm and whether greater injury would result from refusing an injunction than granting it, are similar to the sixth prong, which focuses on the public interest. However, a critical consideration in the sixth prong is the harm that may come from granting an injunction. That is, the first two prongs look at the positive results that may come from granting an injunction, but the sixth prong considers the harm an injunction may cause. The Millers, who did not carry the burden, presented many witnesses to testify that it would harm their health or the health of their family members if the injunction was granted. R.R. at 524a-43a. Furthermore, we note that in SEIU Healthcare Pennsylvania v. Commonwealth, 104 A.3d 495 (Pa. 2014), the Supreme Court heard a case on direct appeal from this Court's original jurisdiction wherein this Court failed to make findings of fact for the preliminary injunction prongs. Rather than remand, the Supreme Court reviewed whether the preliminary injunction was proper. Because a remand would not change the fact that evidence was not presented on all the prongs, a remand would be fruitless, and we follow our high court's lead and review whether the partial denial of the preliminary injunction in this case was proper. Put another way, even if the trial court found the Department's expert credible over the Millers' expert and concluded that the Department established the injunction is necessary to prevent irreparable harm, the Department needed to establish all six prongs, which it failed to do.
We have explained per se irreparable harm exists if there is a violation of an "express" statutory provision. Council 13, Am. Fed'n of State, Cnty. & Mun. Emps., AFL-CIO v. Casey, 595 A.2d 670, 674 (Pa. Cmwlth. 1991). Courts have found per se irreparable harm in cases where the defendant admitted a statutory violation or the fact-finder concluded a statutory violation occurred. See Pa. Pub. Util. Comm'n v. Israel, 52 A.2d 317, 405-09 (Pa. 1947) (irreparable harm where the statutory violation was not "seriously" in dispute); Wolk v. Lower Merion Sch. Dist., 228 A.3d 595, 611 (Pa. Cmwlth. 2020) (irreparable harm where the court concluded a school district misrepresented revenues and expenditures contrary to statute).
In this case, however, the Millers did not admit the statutory violation, and the trial court determined the law was ambiguous. The Millers maintain the permitting requirements of the Milk Sanitation Law and related regulations apply to sales to instate customers, emphasizing the phrase "within this Commonwealth." Millers' Br. at 2-3, 24-28. They contend the Department's contrary interpretation would lead to absurd results by illegalizing mere possession of milk in Pennsylvania with the intent to sell it in a different state and would empower the Department to "govern interstate commerce and global commerce whenever any part of the food supply chain touches inside [Pennsylvania's] borders." Id. at 28-30.
Section 2 of the Milk Sanitation Law provides that "no person shall sell milk, milk products or manufactured dairy products within this Commonwealth without first having obtained a permit" or otherwise in violation of the statute. 31 P.S. § 646 (emphasis added). Once again, Section 1 of the Milk Sanitation Law defines "[t]o [s]ell" and similar terms to include acts of "selling, exchanging, delivering, or having in possession, care, control, or custody with intent to sell, exchange, or deliver, or to offer or to expose for sale." 31 P.S. § 645. Even taking Section 1's broad definition into account, it is unclear whether sales directed to out-of-state customers are sales "within this Commonwealth." As the Millers argue, anyone merely passing through Pennsylvania with the intent to sell milk elsewhere would be subject to Section 2's permit requirements under the Department's interpretation.
The related regulations arguably prohibit the Millers' out-of-state sales of raw milk. They provide that "[a] person may not sell raw milk for human consumption without having a current raw milk permit." 7 Pa. Code § 59a.402(a). A person who obtains a permit may "lawfully produce and sell (within this Commonwealth) raw whole milk for human consumption." 7 Pa. Code § 59a.402(b) (emphasis added). The related regulations prohibit raw milk sales generally and allow sales "within this Commonwealth" only if a permit is obtained.
Nonetheless, there is reason to question whether the related regulations are in violation of the statute and, therefore, illegal. See Marcellus Shale Coal. v. Dep't of Env't Prot., 216 A.3d 448, 459 (Pa. Cmwlth. 2019) (en banc). The Milk Sanitation Law contemplates a permit holder will sell milk in a particular "municipality" within the Commonwealth. 31 P.S. §§ 645-46. Related provisions will sometimes refer to activities within and "without the Commonwealth," which may suggest the General Assembly intended "within" in Section 2 to refer specifically to in-state sales. It is noteworthy 7 Pa. Code § 59a.402(b) also seems to use "within this Commonwealth" to refer to in-state sales. Thus, we hold the trial court was "apparently reasonable" in holding that the law on this issue is ambiguous. Chan, 323 A.3d at 100 (quoting Mazzie, 432 A.2d at 988).
See, e.g., Section 103 of the Milk Marketing Law, Act of April 28, 1937, P.L. 417, as amended, 31 P.S. § 700j-103 (defining a "milk dealer" or "handler," in relevant part, as "any person, who purchases or receives or handles on consignment or otherwise milk within the Commonwealth, for processing or manufacture and further sale, within or without the Commonwealth, whether on behalf of himself or others, or both").
The Millers have also raised potentially meritorious constitutional challenges to the Milk Sanitation Law and related regulations, involving the Commerce Clause, the Supremacy Clause, the right to travel, and what they describe as the fundamental right to purchase "traditional foods directly from the producer of that food." Millers' Br. at 3-4, 31-46. Most significantly, the trial court expressed concern that granting the Department's requested preliminary injunction would "blur the line between the regulation of raw milk sales in the Commonwealth and interstate commerce." R.R. at 699a. These constitutional challenges are more appropriately resolved after a full trial.
CONCLUSION
Recognizing our highly deferential standard of review, we discern no abuse of discretion by the trial court in modifying its preliminary injunction to limit the restriction on sales to customers within the Commonwealth. We are mindful that we are not delving into the merits of the actual controversy; we are merely considering whether the trial court's action in this preliminary stage was "apparently reasonable." Chan, 323 A.3d at 100 (quoting Mazzie, 432 A.2d at 988).
The Millers maintain they will suffer substantial harm if they are unable to continue out-of-state raw milk sales, and the Department, which carries the burden, presented no evidence to the contrary. Unless per se irreparable harm exists, which is not present here, a court ruling on a preliminary injunction, which is an equitable remedy, understandably must consider the equities of the case, which here favor the Millers. The Department's request for the extraordinary remedy of preliminary relief depends entirely on the claim that the Millers are violating the Milk Sanitation Law and related regulations. The trial court's conclusion that the law is ambiguous is reasonable. Moreover, the Millers have presented constitutional challenges, including an alleged violation of the Commerce Clause, which are best resolved after a trial on the merits.
Again, this Court is cognizant that the underlying cause of action by the Department includes seeking a permanent injunction, which can only come after a full evidentiary hearing on the complaint. Here, the trial court accidentally referred to the injunction as permanent in its Rule 1925(a) opinion. At argument before this Court, when asked by the Court, the Department said the relief was permanent in nature. The Department is simply not entitled to the permanent relief it requests in its complaint before the hearing on the complaint occurs. Accordingly, we affirm the trial court's March 19, 2024 order.
ORDER
AND NOW, this 3rd day of January 2025, the order dated March 19, 2024, by the Court of Common Pleas of Lancaster County, is AFFIRMED.