Appeal, No. 212, Jan. T., 1962, from decree of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1961, No. 1111, in equity, in case of Mead Johnson & Company v. Martin Wholesale Distributors, Inc. Decree affirmed.
I. Raymond Kremer, for appellant.
Francis Hopkinson, with him Wallace P. Cooney, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE MUSMANNO
This is a case involving interpretation and application of Pennsylvania's Fair Trade Act (Act of June 5, 1935, P. L. 266, § 2, as amended, 73 PS § 8). The plaintiff, Mead Johnson & Company, asked for and obtained a preliminary injunction against the defendant, Martin Wholesale Distributors, Inc. The defendant appealed.
The plaintiff (an Indiana corporation doing business in Pennsylvania) manufactures and sells certain nationally advertised products known as "Dextri-Maltose," "Poli-Visol," "Tri-Vi-Sol", "Lactum" and others. It has entered into contracts with various retailers in Pennsylvania who, in accordance with the provisions of the Fair Trade Act, agreed not to sell the plaintiff's products below established minimum prices. The defendant, which maintains a place of business in Philadelphia, and which has not entered into a fair trade
contract with the plaintiff, sold some of its products below the stipulated minimum prices, and in doing so, came into conflict with section 2 of the Act, which provides:
"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 competition and is actionable at the suit of such vendor, buyer or purchaser of such commodity." (Emphasis supplied).
The plaintiff, in asking for a preliminary injunction against the defendant, stated that unless the defendant was restrained, in the manner prayed for, the plaintiff would suffer "irreparable injury." In its answer, the defendant averred, under new matter, that: "the so-called 'Fair-Trade Program' of the Plaintiff corporation and other drug companies is not in any way whatsoever in the interest of or for the benefit of the citizens and people of the City of Philadelphia and Commonwealth of Pennsylvania but, to the contrary, is designed and calculated to and does very adversely affect economically depressed and impoverished groups."
The defendant called upon the court to "compel the plaintiff to reveal its costs, price-structures, profits and competitive position with other drug companies, and the function and effect of its so-called fair-trade program upon drug prices and the ...