violated by the defendants. The increased severity of the fine and the use of conditional incarceration are necessary to coerce compliance with the court's prior orders since the penalties utilized in the prior contempt order resulted in continued noncompliance.
An appropriate order follows.
AND NOW, this 12th day of May, 1988, upon consideration of the plaintiff's submissions and after a hearing in open court, it is hereby Ordered that defendants Attech Systems Corporation d/b/a Attech Fax Express ("Attech"), FX Express International, Inc. d/b/a Fax Express ("International"), Rider R. Lewis, II ("Lewis") and their officers, agents and employees be held in civil contempt of this Court's Orders of April 7th and April 19th.
On April 19th, the Court adjudged defendants Attech and International in civil contempt for violating the Court's Order of March 25th, that Order temporarily restraining said defendants and their officers and agents from the use of the following service marks or trade names: "FAX EXPRESS"; "FX EXPRESS"; AND "F-X EXPRESS" wherein the hyphen is a fanciful "A" (the "names"). Attech and International were further adjudged in contempt for disregarding that portion of the March 25th Order compelling their appearance in Philadelphia for deposition by plaintiff on March 30th.
As a remedial measure, Attech and International were ordered to immediately dispatch a letter to all of their dealer-agents doing business under the enjoined names, advising those agents to comply with the preliminary injunction entered on April 7th. A copy of that letter, with a list of its recipients, was ordered to be tendered to the Court by April 24th. No letter has been received by the Court.
As a coercive measure to induce compliance by defendants with the preliminary injunction, the Court further ordered that, beginning April 20th, defendants shall pay damages to plaintiff in the amount of $ 2,000 per day for injury to plaintiff's goodwill and reputation being caused by defendants' continued violation of the preliminary injunction. All costs and reasonable attorneys fees incurred in the prosecution of plaintiff's earlier contempt motion were assessed against defendants.
Attech and International continue to disregard this Court's Orders. Based upon the convincing testimony of Messrs. Klein and Wagenheim, the Court finds defendants' agents, and defendants themselves, continue to use one or more of the enjoined names. Contrary to the Court's explicit directive to instruct defendants' dealer-agents to cease the use of the enjoined names, defendant Lewis has advised one such dealer-agent that they are free to use the name "Fax Express". When plaintiff's officers phoned defendants' place of business in California, Mr. Tim Treaster, the person who accepted service of process for Attech and International, answered "FX EXPRESS". Mr. David Mortimer then got on the line and answered questions regarding defendants' dealership network. Mr. Mortimer acknowledged the present action, but opined that no dealers would be sued and that the case was going to be transferred to California because no judge in Philadelphia has jurisdiction over a California company.
Defendant Lewis, as chief executive officer of Attech and International, was and is responsible to see that Attech, International, and their agents obey this Court's orders. Mr. Lewis has represented to others that he is an attorney-at-law. As discussed in the Court's April 19th Order, Lewis has discussed this action with another attorney, Mr. Salmonsen. Mr. Lewis, however, has elected to flaunt the authority of this Court. There is, and can be no excuse for his contempt.
Consequently, I hereby order as follows:
(1) Judgment be entered in the amount of $ 44,000 against Lewis, Attech and International for the twenty-two days of continuing violation of the preliminary injunction. Additional damages to plaintiff in the amount of $ 5,000.00 shall begin accruing immediately for each further day defendants or their agents fail to comply with the preliminary injunction and the Court's Order of April 19th. Such additional damages shall be payable jointly and severally by International, Attech, and Lewis;
(2) Defendants Attech, International, and Lewis shall pay all of plaintiff's costs and reasonable attorneys fees incurred in the prosecution of this contempt order;
(3) A bench warrant shall issue for the arrest and imprisonment of Mr. Lewis until such time as the letter, recipient list, and affidavits of compliance, including those of defendants' agents, prescribed in the Court's April 19th Order are received by the Court;
(4) Lewis, Attech and International shall direct their dealer agents to take all reasonable efforts to withdraw telephone listings and telephone advertisements identifying them as supplying services under any of the aforementioned names.
AND IT IS SO ORDERED