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CASCO PRODUCTS CORPORATION v. HESS BROTHERS (06/11/57)

June 11, 1957

CASCO PRODUCTS CORPORATION
v.
HESS BROTHERS, INC., APPELLANT.



Appeal, No. 79, Oct. T., 1957, from decree of Court of Common Pleas of Lehigh County, June T., 1955, No. 10, in case of Casco Products Corporation v. Hess Brothers, Inc. Decree modified and, as modified affirmed.

COUNSEL

Orrin E. Boyle, for appellant.

W. Hamlin Neely, with him Robert B. Doll, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Rhodes

[ 184 Pa. Super. Page 49]

OPINION BY RHODES, P.J.

This is a contempt proceeding. Defendant, Hess Brothers, Inc., was adjudged guilty of a civil contempt by the Court of Common Pleas of Lehigh County, sitting in equity, for violation of an injunction prohibiting the sale of products of plaintiff, Casco Products Corporation, at prices less than the minimum retail prices stipulated in plaintiff's contracts. Defendant admits that it violated the injunction; but it complains that the fine imposed is excessive, and that the court below erred in refusing to allow the introduction of certain evidence as a defense.

A complaint in equity was filed by plaintiff on August 24, 1955, in which it was alleged that defendant was offering for sale and selling at resale plaintiff's trade-marked "Casco steam irons," at less than the price stipulated by plaintiff in its fair trade contracts and price lists, in violation of the Pennsylvania Fair Trade Act of June 5, 1935, P.L. 266, §§ 1, 2, as amended by the Act of June 12, 1941, P.L. 128, No. 66, § 1, 73 PS §§ 7, 8. Defendant made no answer to the complaint; on September 12, 1955, a consent decree was entered. Defendant was permanently enjoined from offering for sale or selling any irons bearing plaintiff's trade-mark, brand, or name "Casco" at prices less than

[ 184 Pa. Super. Page 50]

    those stipulated for the same in plaintiff's fair trade contracts and price lists supplemental thereto. Defendant was permitted to close out its existing stock of "Casco" products at less than the stipulated prices; the decree further provided that the injunction was to remain in effect against defendant unless amended or vacated.

On May 3, 1956, plaintiff filed a petition alleging that defendant had violated the consent decree; a rule was granted upon defendant to show cause why it should not be held in contempt of court. Defendant, in an answer, admitted the sale of plaintiff's product in violation of the consent decree, but advanced the defense that its action was justified because plaintiff was not enforcing its fair trade prices against defendant's competitors in the same trading area. At the hearing the court below refused to admit evidence of the purported defense. Thereafter the court filed its opinion in which it made the following finding of fact: "2. That on May 10, 1956, the defendant advertised in its public display windows signs which contained this phraseology: 'Casco Steam Irons. This is what the manufacturer says we must sell them for: $15.95. Which would you rather pay? We may go to jail - but while they last Hess's price is $10.00.'" The court also found that on April 5, 1956, defendant had sold a Casco iron for $10.30, including tax, and that this iron was not one of the close-out items specifically excluded from the operation of the original injunction. Defendant was adjudged guilty of a civil contempt and fined $500. There was no provision whereby defendant could purge itself of the contempt.

Defendant's contentions on this appeal are that the contempt is an indirect criminal contempt within the scope of the Act of June 23, 1931, P.L. 925, § 1, 17 PS § 2047, ...


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