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BERTRAM SHAFER AND DOLORES E. SHAFER v. A. I. T. S. (04/03/81)

filed: April 3, 1981.

BERTRAM SHAFER AND DOLORES E. SHAFER, HIS WIFE, LAWRENCE DOUGLAS AND BARBARA DOUGLAS, HIS WIFE, MICHAEL E. EVANS AND JACQUELINE EVANS, HIS WIFE, ROY KENNETH HESS AND JOANNE S. HESS, HIS WIFE, ROBERT M. SUCKLING AND MARY LOU SUCKLING, HIS WIFE, EDWARD CHAMBERS AND HELEN CHAMBERS, HIS WIFE, RAYMOND E. SCALES AND MIRIAM C. SCALES, HIS WIFE, ESTELLA WILLIAMS, HELEN M. SOLDOMRIDGE, GLADYS S. RYSER, ROSE E. PHILIPS, ALTHEA JENKINS, PATRICIA L. FITZGERALD, HAROLD COOPER, THELMA K. JONES, MARGARET FINLEY AND JOYCE COOPER, APPELLANTS AT NO. 653 PHILA. 1980,
v.
A. I. T. S., INC., CROSS-APPELLANT AT NO. 721 PHILA. 1980



Nos. 653 & 721 Phila. 1980, Appeal and Cross-Appeal from the Order of the Court of Common Pleas of Northampton County, Civil Action Law at No. 272 October Term 1977.

COUNSEL

Joel M. Scheer, Easton, for Shafer et al., appellants (at No. 653) and for appellees (at No. 721).

Joel H. Ziev, Easton, for A.I.T.S., Inc., appellant (at No. 721) and for appellee (at No. 653).

Spaeth, Hester and Cavanaugh, JJ. Cavanaugh, J., concurs in the result.

Author: Spaeth

[ 285 Pa. Super. Page 492]

This case comes before us on cross-appeals. The action is in assumpsit, and is pleaded in seventeen counts. For our purposes, however, there are only two claims, the first represented by the first fifteen counts, the second, by the seventeenth count. (The sixteenth count is for a claim not brought before us by appeal.) On the first claim, the jury found for the defendant, and the plaintiffs have appealed, arguing that we should enter judgment n. o. v. or grant a new trial. This is Appeal No. 653. On the second claim, the lower court directed a verdict for the plaintiffs, and the defendants have appealed, arguing that we should enter judgment n. o. v. This is Appeal No. 721. We have decided that on Appeal No. 653, we should reverse and enter judgment n. o. v., and that on Appeal No. 721, we should affirm.

[ 285 Pa. Super. Page 493]

An agreement that cannot be performed without violation of a statute is illegal and will not be enforced. Dippel v. Brunozzi, 365 Pa. 264, 74 A.2d 112 (1950); Pennsylvania R. Co. v. Cameron, 280 Pa. 458, 466, 124 A.2d 638, 640 (1924); Gramby, et al. v. Cobb, 282 Pa. Super. 183, 422 A.2d 889 (1980). However, it must appear that the subject of the agreement is specifically proscribed by the statute. The agreement whereby A.I.T.S. was to pay the Order a commission based on the number of travelers is not the type of agreement prohibited by 14 C.F.R. 207.15. This regulation presumably was intended to further the efforts of the Civil Aeronautics Board, whose statutory duty is to "foster sound economic conditions, promote economic and efficient service at reasonable charges, and avoid destructive competitive prices," Las Vegas Hacienda, Inc. v. C.A.B., 298 F.2d 430, 432-33, (9th Cir. 1962), cert. denied, 369 U.S. 885, 82 S.Ct. 1158, 8 L.Ed.2d 286; see also Voyager 1000 v. Civil Aeronautics Board, 489 F.2d 792 (7th Cir. 1973), cert. denied, 416 U.S. 982, 94 S.Ct. 2383, 40 L.Ed.2d 759 (1974), by preventing travel agents or air carriers from lowering the cost of air transportation by refunding the cost of airfare in the form of commissions to members of a charter organization. This does not appear to have been the intent or the result of the agreement here. Rather than reducing the cost to members of the Order, the commission was intended as compensation to the Order for the use of its membership list and other facilities. This was the finding of the lower court: "[S]uch payment could fairly be viewed as an arrangement for services under which the [Order] would use its facilities, mailing lists and membership rolls to contact its members and inform them of the trip, in return for which the [Order] would receive $20.00 for each participant." (Slip op. at 6)

We therefore conclude that the lower court was correct in directing a verdict in favor of the Order's assignees, and in denying A.I.T.S.'s motion for judgment n. o. v.

Appeal No. 653

After the meeting in May 1975, between the representatives of the Order and A.I.T.S., A.I.T.S. sent Mrs. Finley a

[ 285 Pa. Super. Page 495]

    letter giving a "detailed breakdown of the administrative and financial workings of the various AITS programs." (R.R. 341a) Included ...


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