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November 27, 1963

CHESTER DISCOUNT HEALTH AND VITAMIN CENTER, INC., and West Chester Discount Health and Vitamin Center, Inc., and Martin Weiner and Samuel Tollen

The opinion of the court was delivered by: DUSEN

The hearing on the Motion (filed October 9, 1963) for a Preliminary Injunction was initially scheduled for October 15, 1963, but was continued at the request of both counsel (see D-6) due to the unavailability of witnesses. The hearing was held on November 14 and 15, 1963, and counsel were granted leave to supplement the record by a stipulation, which was filed with the trial judge on November 21, 1963 (Document 6).

Counsel for plaintiff conceded that the individual defendants were not properly brought before the court as defendants at the above hearing and, hence, that any preliminary injunction could not apply to them as defendants.

 The District Sales Manager of plaintiff (Mr. Adler) established the requisite jurisdictional amount by testimony concerning expenditures for advertising of the registered trademark 'Revlon' (see P-1, P-9 and P-10) and concerning the volume of sales in his District, which covers that part of Pennsylvania east of Altoona. He testified that plaintiff was a Delaware corporation and the pleadings (pars. 2-3) established that defendants are Pennsylvania corporations.

  This witness established that plaintiff's fair-traded products, as shown on price lists marked P-18A and P-19A, are sold in Pennsylvania in fair and open competition with products of the same general class (cosmetic and beauty products) produced or manufactured by Max Factor, Helena Rubinstein, Dorothy Gray, and others (see pp. 4-5, 11-12, 14 and 22 of P-2, and P-3 -- P-5). He also testified that plaintiff had a continuous program of policing Fair Trade contracts and prices in Pennsylvania.

 The record clearly establishes sales by the defendant corporations in the fall of 1962 below the established Fair Trade prices of plaintiff. See, for example, paragraph 12 of Answer and paragraph 13 of Complaint, which is admitted in the Answer, as well as the testimony of Miss Rafaj. *fn1"

 From November 1961 to August 1962, form letters were mailed by plaintiff to the corporate defendants enclosing Fair Trade price lists and stating that 'agreements with dealers in our products located in your state pursuant to the Fair Trade Act' had been entered into, which agreements provided 'that our products shall not be sold at less than the established minimum retail Fair Trade prices shown on the enclosed list.' *fn2" See P-15, P-1, P-18 and P-19A. Identical letters were sent by registered mail to corporate defendants, but they were returned marked 'Refused.' See P-14, P-16, P-17 and P-19.

 Since October 1962, there has been another store in Chester within a block of defendants' Chester store which sells plaintiff's products at less than the minimum Fair Trade prices on the above-described price lists, but notice of these violations at this store was not given to plaintiff by defendants prior to institution of this suit (see D-6, P-21 and P-22). Since the record does not show that the prices of the following items, sold at special sales at prices less than the prices specified in the Fair Trade price lists (P-18A and P-19A), were included in such Fair Trade price lists, n3 plaintiff is not entitled to a preliminary injunction as to these items: n4 Page of Code# P-18A & P-19A Product Name 0742, 0750 8 Hi and Dri Roll-On Deodorant with Neomycin n5 0658 11 Top Brass Medicated Hair Dressing 0668, 0744 11 Top Brass Roll-On Deodorant with Neomycin 0342 7 Living Curl Hair Spray n6 0197 3 Eterna Cream


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