Department Sales Co. v. Commission of Pharmacy

Palmer, J. This is an action for a declaratory judgment to determine the constitutionality of § 19-242 of the General Statutes, which provides that “[n]o drug retailer shall sell any drugs, medicines, cosmetics, toilet preparations or drug sundries at a price below the manufacturer’s wholesale list price per dozen,” except under circumstances not here in issue. The complaint alleges that “solely to meet competition or in connection with special opening day promotions, and without intent to injure or destroy competition,” the plaintiff: sold articles in violation of the statute. The defendants have moved to expunge the quoted language on the grounds that it is irrelevant, immaterial and evidential in nature. On the same grounds, the defendants also seek to expunge an allegation that “[t]he retail drug trade in Connecticut has been highly competitive and drug retailers other than the plaintiff, solely in order to meet competition, have made sales” in violation of the statute. The court is not prepared to hold that the allegations sought to be expunged are irrelevant or immaterial in the context of this case. The question of constitutionality may involve proof of an intent to injure competitors or destroy competition. See Mott’s Super Markets, Inc. v. Frassinelli, 148 Conn. 481, 487; State v. Lelyo, 3 Conn. Cir. Ct. 484, 489. The motion to expunge is denied.