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GEVER v. AMERICAN STORES CO. (12/29/56)

December 29, 1956

GEVER, APPELLANT,
v.
AMERICAN STORES CO.



Appeals, Nos. 271 and 280, Jan. T., 1956, from decrees of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1955, Nos. 9093 and 9092, in cases of David Gever, Ind. and trading as Gever's Pharmacy et al. v. American Stores Co., trading as Acme Super Market, and Same v. Penn Fruit Company, Inc. Decrees affirmed. Equity. Defendant's preliminary objections sustained and final decrees entered dismissing complaints, before KUN, P.J. and HAGAN, J., opinion by HAGAN, J. Plaintiff appealed.

COUNSEL

George D. Kline and S. Walter Foulkrod, Jr., for appellant.

Samuel B. Fortenbaugh, Jr., with him John S. Carnes, and Clark, Ladner, Fortenbaugh & Young, for appellee.

Bernard G. Segal, with him John B. Lister, Jerome J. Shestack, and Schnader, Harrison, Segal & Lewis, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 387 Pa. Page 207]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Appellant, David Gever, Individually and Trading as Gever's Pharmacy, is one of several plaintiffs who

[ 387 Pa. Page 208]

    sought unsuccessfully in the court below to enjoin defendants, American Stores Company, trading as Acme Super Market, and Penn Fruit Company, Inc., from giving trading stamps to their customers in connection with sales of certain trade-marked or branded commodities the minimum retail prices of which had been established by agreements entered into pursuant to the provisions of the Pennsylvania Fair Trade Act of June 5, 1935, P.L. 266. Section 1 of that Act, as amended by the Act of June 12, 1941, P.L. 128, provides "That no contract relating to the sale or resale of a commodity which bears, or the label or content of which bears, ... the trade-mark, brand or the name of the producer or owner of such commodity, and which is in fair and open competition with commodities of the same general class produced by others, shall be deemed in violation of any law of the State of Pennsylvania by reason of any of the following provisions which may be contained in such contract:

"(a) That the buyer will not resell such commodity, except at the price stipulated by the vendor."

"(b) That the buyer of such commodity require upon his resale of such commodity that the purchaser from him agree that such purchaser will not in turn resell except at the price stipulated by the vendor of the buyer. ..."

Section 2 provides that "Wilfully and knowingly advertising, offering for sale, or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of section one of this act, whether the person so advertising, offering for sale, or selling is, or is not, a party to such contract, is unfair ...


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