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PALMER-LUCAS, INC. v. MARTIN'S HEREND IMPORTS

July 14, 1993

PALMER-LUCAS, INC., a corporation, Plaintiff,
v.
MARTIN'S HEREND IMPORTS, INC., Defendant.



The opinion of the court was delivered by: GLENN E. MENCER

 Presently before the court is a motion filed by defendant Martin's Herend Imports, Inc. ("Martin's") asking this court to dismiss Count II of the complaint of Palmer-Lucas ("Palmer"). The basis of motion to dismiss Count II is defendant's assertion that the Pennsylvania Commissioned Sales Representative Act, 43 Pa. C.S.A. §§ 1471-78, is unconstitutional under the Commerce Clause of the United States Constitution.

 Defendant Martin's is engaged in the business of importing and selling Herend porcelain products to retailers throughout the United States. Palmer served as a sales representative for Martin's pursuant to an oral agreement entered into between the parties in the early 1960's. Under the agreement Palmer was appointed to be Martin's exclusive sales representative within approximately a six-state area, including Pennsylvania. (Complaint at paragraph 7). The relationship between the two parties grew, until by 1990 Palmer was Martin's exclusive sales representative within the United States except for portions of the District of Columbia and the States of Maryland, West Virginia and Virginia. The relationship eventually deteriorated, according to the plaintiff, and beginning in 1991 Martin's began reducing the areas where Palmer's would serve as sales representative. Finally Martin notified Palmer that it was ending the relationship effective August 30, 1992.

 Palmer in its complaint asserts breach of contract, violation of the Pennsylvania Commissioned Sales Representative Act, and quantum meruit. It is the Pennsylvania statute, 43 Pa. C.S.A. § 1471 et seq., that forms the basis of the current motion to dismiss. The pertinent sections of the Act state the following:

 
§ 1471. Definitions.
 
"Principal." Any person who does not have a permanent or fixed place of business in this Commonwealth and who does all of the following:
 
(1) Engages in the business of manufacturing, producing, importing or distributing a product for sale to customers who purchase such products for resale.
 
(2) Utilizes sales representatives to solicit orders for such product.
 
(3) Compensates sales representatives, in whole or in part, by commission.
 
"Sales representative." A person who contracts with a principal to solicit wholesale orders from retailers rather than consumers and who is compensated, in whole or in part, by commission. The term does not include one who places orders or purchases for his own account for resale or one who is an employee of a principal.
 
§ 1472. Contracts.
 
Contents- When a sales representative enters into an agreement with the principal for the solicitation of wholesale orders, a written contract shall be entered into setting forth the following:
 
(1) The form of payment and the method by which it is to be ...

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