seeks to apply against defendant, and (c) there is no showing of irreparable harm to plaintiff. These contentions may all be considered together.
The fact that the defendant's gross sales of plaintiff's products did not exceed about $ 1,000 and its profit on these sales was $ 100 to $ 200 does not stamp its conduct as so trivial that a court of equity should be unmoved by a prayer to enjoin it in the future. The basis of the enforcement of the fair trade policy is the prevention of debasement of a manufacturer's goodwill by repeated acts of violation. This is the essence of the rule that determines the amount in controversy by the value of the goodwill which is being impaired.
Moreover, however insignificant any one violation may be, it is the accumulated effect of the example of such violation going unchecked which constitutes the real injury. Indeed, in this case the defendant itself challenges plaintiff's right to a preliminary injunction because it claims that plaintiff has allowed other sales to be made without efforts to enforce compliance. It is clear, therefore, that whether an injunction is to be issued depends not merely on the size of the specific violation now before us, but also on its effect as part of a chain of violations with their accumulated erosion of plaintiff's goodwill. This is especially true in fair trade cases. For here the fact that the violation was small and the profit to the defendant unsubstantial is no justification for permitting defendant to continue in violation of the Pennsylvania statute and in flat disregard of the policy established by it.
Nor has the plaintiff been guilty of a failure to seek enforcement of its fair trade prices. Manifestly, the maintenance of prices in the face of price cutting requires first, knowledge of the violations and an opportunity to investigate them, then notice to the violator, followed by reference to counsel, and ultimately the determination to bring suit to enjoin the violation. All this takes time and it would be unrealistic to require that suit be brought for every violation as soon as it is uncovered. We must assume the likelihood of negotiations with the violator seeking amicable agreement to discontinue the illegal practice, and the belief that an injunction obtained in one case will be persuasive in obtaining voluntary discontinuance of other violations without litigation.
The evidence is clear that plaintiff is actively engaged in seeking to maintain its fair trade prices and that its efforts are both reasonable and diligent. (N.T. 138-49). There is no proof which would justify a conclusion that this has not been plaintiff's policy even in the past. But in any case, it is enough that plaintiff is vigorously pressing its efforts to maintain its fair trade prices; and the fact that there may have been violations in the past, or even are some now which plaintiff is undertaking to act against but has not yet enjoined, can constitute no defense to this defendant in the absence of any showing of intention to discriminate against him.
Defendant earnestly contends, as an ultimate conclusion from the combined circumstances that the amount involved in defendant's sales is small, the plaintiff is a large corporation, and the probable existence of other violations, that therefore plaintiff has not made a showing of irreparable damage.
In Mead Johnson & Co. v. Martin Wholesale Distributors, Inc., 408 Pa. 12, 182 A.2d 741 (1962), the Supreme Court of Pennsylvania held that the underselling of products within the protection of the Fair Trade Act is unlawful and that 'For one to continue such unlawful conduct constitutes irreparable injury. * * * The evil aimed at is not the underselling itself, but the assault made on the good name of the plaintiff's products and the goodwill engendered thereby.' (p. 16, 182 A.2d p. 743). I must, of course, exercise my independent judgment in determining whether irreparable damage has been shown. I think it has been shown here. Plaintiff is a nationally known drug manufacturer. Coricidin is a well-know cold remedy. I have found that the goodwill and trademarks relating to Coricidin have a value in excess of $ 10,000. The value is far more substantial than the statutory minimum. Just as the amount in controversy is determined not by the amount of an individual defendant's isolated sale but rather by the total value of the goodwill which is attacked by such sale, so also in determining the question of irreparable injury we must look not merely to the individual sale by a defendant but also to the consequence to the plaintiff of permitting it to go unchecked. A breakdown of plaintiff's policy of price maintenance because of numerous violations by small stores would, on defendant's theory, not constitute irreparable harm to the plaintiff because each case judged alone would appear too small to warrant the exercise of the strong remedy of a preliminary injunction. But we need not wait until the threat becomes a fact. Pennsylvania, under authority of Federal statutes, has adopted a law which expresses its public policy, however much views may differ as to its wisdom or desirability. By that policy the underselling of plaintiff's products is forbidden. Plaintiff is entitled to have this policy maintained against any violator, large or small; and damages for violation are far from an adequate remedy.
Although, as we have said, there is no dispute that plaintiff has established fair trade prices for its products, curiously enough a study of the record reveals that the fair trade contract between plaintiff and the dealer was never offered in evidence, although it is attached to the complaint as Exhibit 3. Nor was there offered in evidence that portion of paragraph 9 of the complaint which pleads the contract and avers that there were others like it. But paragraph 11 of the complaint was expressly admitted in the answer and was offered in evidence. That paragraph alleges that defendant was advised of plaintiff's fair trade policy and schedule of minimum prices, and there is attached as Exhibit 4 a copy of a letter from plaintiff to defendant. Exhibit 4 declares that defendant's prices are below the minimum established 'pursuant to contracts entered into between Schering Corporation and retailers in the State of Pennsylvania. Attached hereto is * * * a copy of a currently existing Fair Trade Agreement between Schering Corporation and a Pennsylvania retailer'. The agreement is not included in the Exhibit.
I deem the record technically incomplete because there is no fair trade contract in evidence. In these circumstances I will not now enter a preliminary injunction although I would have done so if an appropriate contract had been received in evidence. But I will permit the plaintiff, on notice to the defendant, to establish the actual existence of a fair trade contract, and if such a showing is made, or agreed upon, I will enter an appropriate decree.
The statements of facts and of law in the foregoing Opinion shall be deemed to be Findings of Fact and Conclusions of Law. In addition I affirm plaintiff's Requests for Findings of Facts Nos. 1-15, inclusive, and plaintiff's Requests for Conclusions of Law Nos. 1-5, inclusive.
AND NOW, December 28, 1962, leave is granted plaintiff, on notice to defendant, to establish either by proof or stipulation the actual existence of a fair trade contract. If within 30 days from this date such contract is established a preliminary injunction will issue; otherwise the motion for preliminary injunction will be denied.