Appeal, No. 377, Jan. T., 1962, from decree and orders of Court of Common Pleas No. 7 of Philadelphia County, June T., 1960, No. 3089, in case of Mead Johnson & Company v. Herbert Breggar and Irving Breggar, individually and trading as Lakoff & Co. Decree and orders reversed; reargument refused April 26, 1963.
Wilbur Greenberg, with him A. Martin Herring, and Miller, Pincus & Greenberg, for appellant.
Francis Hopkinson, with him Wallace P. Cooney, and Drinker, Biddle & Reath, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Mead Johnson & Company, the plaintiff in this case, is an Indiana corporation engaged in the manufacture and sale of "dextri-maltose," "poly-visol," "lactum," "metrecal" and other pharmaceutical products. On January 17, 1955, it entered into a contract with the Bellview Pharmacy in Philadelphia, whereby the latter bound itself not to sell any Mead Johnson products at prices less those designated by the manufacture vendor in a certain schedule of prices which was made part of the contract.
Herbert Breggar and Irving Breggar, individually and trading as Lakoff & Co. (hereinafter referred to as Lakoff), dealt in the same type of products sold by the Bellview Pharmacy, but did not bind itself to Mead Johnson to sell at certain prices as had the Bellview Pharmacy.
Mead Johnson, claiming under the provisions of the Pennsylvania Fair Trade Act (June 5, 1935, P.L. 266, 73 P.S. § 8), that Lakoff, even though a non-signer with Mead Johnson, was required to observe the minimum price list laid down by Mead Johnson in Philadelphia, engaged the nationally known Pinkerton Detective Agency, to ascertain the prices being charged by Lakoff in selling Mead Johnson products.
On August 8, 1960, one of the Pinkerton operatives, a Miss Anna K. Johnson, swore to the following statement: "On August 3, 1960, at 12:05 p.m. (D.S.T.) I entered the above mentioned store [Lakoff] and I purchased 12 - 8 oz. cans of Metrecal (butterscotch) for
$14.00 ($1.16 2/3 per can) including sales tax, although Mead Johnson & Company's fair trade price for said item, as set forth in its then current fair trade price list was $1.59 per can."
Mead Johnson protested that this "underselling" violated Section 2 of the Fair Trade Act, which section reads as follows: "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, ...