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BOWLES v. CUNNINGHAM

June 19, 1945

BOWLES, Adm'r, Office of Price Administration,
v.
CUNNINGHAM et al.



The opinion of the court was delivered by: GIBSON

The court, after due hearing upon complainant's prayer for a preliminary injunction, makes the following Findings of Fact and Conclusions of Law:

Findings of Fact

 1. Since July 17, 1944, Clyde E. Speer, J. H. Cunningham and L. H. Funcke, trading as The Clyde E. Speer Coal Company, a partnership, have been and are now engaged in the selling of bituminous coal in the Western District of Pennsylvania, the sales of which are and have been continuously regulated by Maximum Price Regulation 120. Clyde E. Speer is not named as a defendant herein.

 2. Prior to July 17, 1944, at the times complained of by plaintiff, the business was carried on by a corporation, known as The Clyde E. Speer Coal Company, Incorporated, which is not a defendant herein.

 3. From July 17, 1944, until December 2, 1944, defendants sold bituminous coal to the Veterans' Administration, United States Government, for a price of $ 3.40 per ton, f.o.b. Veterans' Administration, Aspinwall, Pennsylvania. The delivery price was determined in this manner: Ceiling price f.o.b. mine was $ 2.70 per ton and the delivery charges to Aspinwall were $ 0.70 per ton. Total to consumer was $ 3.40 per ton.

 While defendants billed the Veterans' Administration $ 3.40 per ton, defendants paid their suppliers, F. W. Harrison and E. W. Quinette, trading as Harrison and Quinette Coal Company, only $ 3.28 per ton, f.o.b. Veterans' Administration, Aspinwall, Pennsylvania, thus realizing a commission of twelve cents per ton.

 4. From July 17, 1944, to November 25, 1944, defendants sold bituminous coal to the Allegheny County Workhouse for a price of $ 3.96 per ton, f.o.b. Workhouse. The delivered price was determined in this manner: Ceiling price, f.o.b. mine, $ 3.06, delivery charges to Workhouse, $ 0.90, total to consumer $ 3.96.

 In this case, defendants billed the Allegheny County Workhouse $ 3.96 per ton, and paid their suppliers, Harrison and Quinette Coal Company, only $ 3.81 per ton, f.o.b. Workhouse, thus realizing a commission of fifteen cents per ton.

 5. From July 17, 1944, to December, 1944, defendants sold crushed bituminous coal to the City of Pittsburgh, Pa., for a price of $ 4 per ton, f.o.b. Ross Pumping Station. The delivered price was determined in this manner: Ceiling price, f.o.b. mine, $ 3.25, delivery charges to Pumping Station $ 0.75, total to consumer, $ 4.00.

 Here, too, the defendants realized a commission of fifteen cents per ton by billing the City of Pittsburgh at $ 4 per ton delivered, and paying their suppliers, Harrison and Quinette Coal Company, only $ 3.85 per ton f.o.b. Ross Pumping Station.

 6. The defendants did not employ the haulers of the coal nor set the delivery charges per ton. Defendants merely charged the consumers the ceiling price per ton of the coal, f.o.b. mine, plus the amount per ton set by Harrison and Quinette as the delivery charges.

 7. Plaintiff has not shown conclusively that the delivery charges in the above three instances exceed the delivery charges allowed by Maximum Price Regulation 120.

 8. Plaintiff has not conclusively shown that the price per ton charged by the defendants in the above three instances exceed the ceiling prices ...


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