Gibson & Perkins, P.C. is a full-service litigation firm located at Suite 204, 100 W. Sixth Street, Media, Pennsylvania, 19063 with a team of experienced litigators licensed to practice in Pennsylvania, Delaware, and New Jersey. Call 610-565-1708 or visit www.gibperk.com for more information.
On July 17, 2012, the Superior Court of Pennsylvania held in Coleman v. Duane Morris, LLP that a plaintiff’s damages for a legal malpractice claim, based upon breach of contract, are not necessarily limited to the attorneys’ fees paid to the defendant during the underlying representation. In doing so, the Court held that the attorneys’ fees limitation previously announced by the Supreme Court of Pennsylvania in Bailey v. Tucker is inapplicable when the underlying case is a civil action, rather than a criminal action as in Bailey.
The Supreme Court granted allocator, but the parties settled before the Court heard arguments. Accordingly, the certainty of an award of consequential damages is contingent upon the defendant’s willingness to spend the time and resources to pursue an appeal to the Supreme Court.
On July 17, 2012, the Superior Court of Pennsylvania held in Coleman v. Duane Morris, LLP that a plaintiff’s damages for a legal malpractice claim, based upon breach of contract, are not necessarily limited to the attorneys’ fees paid to the defendant during the underlying representation. In doing so, the Court held that the attorneys’ fees limitation previously announced by the Supreme Court of Pennsylvania in Bailey v. Tucker is inapplicable when the underlying case is a civil action. Accordingly, plaintiffs’ attorneys and aggrieved clients should proceed with caution, as the state of the law with respect to this issue remains unsettled.
In Pennsylvania, the statute of limitations for legal malpractice stemming from negligence is a relatively short two years, pursuant to 42 Pa.C.S. § 5524. Under § 5525, a malpractice action based on a breach of contract must be commenced within four years. However, in Pennsylvania “when an attorney enters into a contract to provide legal services, there automatically arises a contractual duty on the part of the attorney to render those legal services in a manner that comports with the profession at large.” Gorski v. Smith, 812 A.2d 683, 694 (Pa. Super. Ct. 2002). Accordingly, a plaintiff can always pursue their case under a contract theory and enjoy the longer four year statute of limitations, at first glance effectively rendering the two year negligence statute obsolete.
However, in Bailey the Supreme Court ruled that a legal malpractice plaintiff suing under a contract theory can only recover the amount of legal fees, actually paid, in the underlying matter. Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993). Until Bailey, a legal malpractice plaintiff could be made “whole” only by succeeding on a claim sounding in negligence—thus negating the benefit of the longer contractual period of limitations. Coleman, however, adds important qualifications to Bailey.
The plaintiffs in Coleman were the owners of BCA Management, Inc. and BCA Professional Services, Inc. (together “BCA”). The Plaintiffs decided to sell BCA after it was determined that the companies owed approximately $2.16 million in unpaid taxes, for which the Plaintiffs were personally liable. The Plaintiffs engaged the services of Duane Morris, LLP (“Defendants”), via oral agreement, to assist in the sale to purchaser Mirabilis Ventures, Inc. (“Mirabilis”). Pursuant to BCA’s agreement with Mirabilis, Duane Morris would bill BCA for its services, but Mirabilis would ultimately pay the fees after the sale was completed. Despite Plaintiffs’ expressed expectation that the sale would eliminate their liability for the back-taxes, an error on the part of a Duane Morris attorney left them personally liable.
Subsequently, the Plaintiffs brought an action against Defendants for legal malpractice based upon breach of contract, as they were outside the two-year window for a negligence claim. Defendants filed a new matter asserting, inter alia, that their invoices for legal services remained unpaid. Thereafter, Defendants moved for judgment on the pleadings arguing that because Plaintiffs had not in fact paid their legal fees, they had incurred no recoverable damages. Based upon the holding of Bailey, the trial court agreed with Defendants and dismissed the suit. The Plaintiffs filed a timely appeal to the Superior Court.
[W]e conclude that that limitation on damages imposed by the Bailey Court applies to an action in assumpsit based on a claim of attorney malpractice in a criminal case, but that limitation does not extend to an action for legal malpractice in assumpsit where the underlying action was, as here, a civil action.
Coleman v. Duane Morris, LLP, 58 A.3d 833, 838 (Pa. Super. Ct. 2012).
The decision in Coleman certainly appears to have positive implications for aggrieved clients and their counsel. After all, the law in the Commonwealth at the moment indicates that a plaintiff can recover more than attorneys’ fees in a legal malpractice action based on breach of contract, provided of course the underlying matter was a civil action. However, there is reason for pause.
Does the limitation on damages in a legal malpractice action sounding only in contract set forth in Bailey v. Tucker, 533 Pa. 237, 252, 621 A.2d 108, 115 (1993) — which limited such damages to “the amount actually paid for the services plus statutory interest” in a case involving an underlying criminal representation—apply where the underlying representation is a civil one?
Coleman v. Duane Morris, LLP, 68 A.3d 328 (Pa. 2013).
Clearly, the highest court in the Commonwealth was intent on settling this question. However, the Supreme Court did not get the chance to do so, as the parties in Coleman settled before Court could render its decision and the appeal was withdrawn on September 17, 2013.
Following Coleman, a plaintiff can file a legal malpractice action based on breach of contract and claim damages in excess of their underlying attorneys’ fees. The Superior Court will likely uphold the trial court’s award of consequential damages. However, that hypothetical decision may be appealed to the Supreme Court, which appears poised to decide the question. Until such time as the Supreme Court conclusively determines this issue, attorneys should counsel potential plaintiffs that if they wish to pursue a legal malpractice claim based upon breach of contract, they should be prepared to see the case through multiple levels of appeal. Moreover, the risk remains that the Supreme Court could overturn the Coleman decision and reestablish the preeminence of Bailey.


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This Site displays and promotes the sale of products marketed under the registered trademark "Brunello Cucinelli" ("Products").
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Customers cannot make any purchase under someone else’s identity unless strictly authorized to do so by the identity holder.
c) Submit the Order electronically to the Site.
Upon receiving an Order, the Seller will immediately send an Order summary to the Customer by email ("Order summary"). The Order summary communicates to the Customer that the Order has been received. It does not imply acceptance of the Order by the Seller.
Customers are also encouraged to store an electronic copy of the Order summary and to refer to the unique identifying number of the Order included in the Order summary when contacting the Brunello Cucinelli Customer service (“Customer Service”).
All Orders are subject to availability in stock and acceptance by the Seller.
If only some of the Products ordered are available, the Seller will promptly contact the Customer by email to verify their interest in the fulfilment of (a) a partial Order, (b) of a full Order but in multiple shipments or (c) whether they intend to cancel the Order.
An Order can be deemed as accepted, and the relevant contract for the sale of the Products between the Seller and the Customer as formed, only when the Seller dispatches the Products and submits the Purchase confirmation to the Customer by email.
• The Product is no longer in stock.
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The Seller intends to notify Users of any refusal of Order in a prompt manner.
Customers can make payments ("Payments") of the Purchase price by using all major credit and debit cards and other electronic payment methods (collectively, "Payment methods").
In case of Credit Card payments, the Seller will debit the Purchase price to the Customer via the selected Payment method only when the Order is accepted.
However, prior security checks to prevent insolvency or fraud may take place, or an authorisation hold or pre-payment may be carried out to verify that the Payment method used by the Customer is active and available for Payment.
The Seller does not directly process any credit/debit card details or other financial information of the Customer and uses a primary payment gateway ("Payment gateway") to authorize any Payment.
The Payment gateway protects the credit/debit card details by encrypting sensitive information to ensure that such information is passed securely between the Customer and this Site, on one side, and between this Site and the payment processor, on the other side. However, the Seller cannot be held liable for any error, negligence or wrongdoing referable to how the Payment gateway has managed the financial transaction linked to the purchase of the Products on this Site.
This Site also uses Secure Sockets Layer (SSL) technology to guarantee a higher standard of safety on any purchase of Products.
Customers can track the shipping progress of their Orders by using the unique tracking reference number supplied to the Customer when shipment is confirmed by e-mail.
The Seller is strongly committed to completing each Order in the most efficient and seamless way. Nonetheless, any estimated delivery time indicated in the Order summary should be used as a guideline only. The estimated delivery time starts from the date of dispatch.
The Seller cannot be held liable for any delay in delivery that is not due to its negligence, including but not limited to force majeure, customs clearance processes, strikes, natural disasters, any other fact pertaining to the supply of courier services or any other circumstance outside of the control of the Seller.
Customers should plan to be available to receive the Products without any undue delay.
In the event of a first unsuccessful delivery attempt, the Courier will notify the Customer to rearrange delivery. If all delivery attempts have failed, the courier will return the package to the Seller. In this case, Customers are invited to contact the Seller immediately for further instructions by email customerserviceusa@brunellocucinelli.com or by filling out the contact form on the Contact us page.
All prices of Products, shipping charges and other costs debited to the Customer (collectively, the "Purchase price") published on the Site are expressed in USD.
The full Purchase price will be repeatedly shown at checkout, in the Order summary and in the Purchase confirmation.
Unless specifically stated otherwise, all shipping charges on an Order will be debited in full to the Customer ("Shipping charges"). The Shipping charge amount will first be calculated and shown at checkout.
Where U.S. Sales Tax applies, the checkout page will show the estimated sales tax due on the Order, at current tax rates. Shipping charges may also be subject to tax in certain states. Sales tax will be then charged on the Order and added to the Purchase price.
If Sales Tax is not due on the Order, most U.S. states require Customers to self-assess and remit the tax due on the purchase according to the local law. Customers are invited to ask local authorities or tax consultants for advice on their obligations.
In the event of any error or mistake in the Product prices published on this Site, the Seller retains the right to modify the relevant Purchase prices at any time. Incorrect Purchase prices will not be binding for the Seller or the Customer in any case, even after the Customer has received the Order summary.
The Seller is under no obligation to accept or execute any Order for Products published at an incorrect Purchase price and reserves the right to refuse or cancel the Order.
At checkout, Customers can opt to collect their Order at a designated Brunello Cucinelli boutique at no additional expenses.
In this case, the Customer service will notify the Customer by email or telephone when the Order is ready for collection at the selected boutique. The Order will remain available for collection at the boutique for a period of 15 (fifteen) days following notification.
If the Order is not collected within such period, the Customer service will promptly contact the Customer to reorganize the delivery. In the event that no indication is given by the Customer within 5 (five) working days, the Order will be deemed as cancelled and the Seller will refund the Purchase price to the Customer at no additional expenses.
Customers are invited to collect the Orders at the designated boutique in person or by delegating another person, whose personal data (such as: name, surname, email and phone number) must be indicated during the checkout process.
3. A copy of their own ID.
During marketing campaigns, the Seller may issue vouchers and discount codes for purchase use on this Site.
Vouchers and discount codes can never be redeemed in any Brunello Cucinelli boutique.
Vouchers and discount codes can never be refunded.
The Seller guarantees the Customer that the Products are not defective or flawed and that the Products conform to the Product description given by the Seller on this Site.
For technological reasons, the Seller cannot guarantee that the monitor display of colours will be accurate.
Minor differences between the Product description on the Site and the actual Product features should not be deemed to lead to any non-conformity of the Product for the purposes of these Terms and Conditions.
Customers are invited to inspect carefully any parcel before signing and confirming the completed delivery. If the parcel appears damaged or not complete in its content, Customers are kindly encouraged to sign the delivery of the parcel by reporting the encountered damage or claim and then to contact promptly the Customer service by using the online form in the “Contact us” section or by writing an email at customerserviceusa@brunellocucinelli.com .
In the unlikely event of a Product being defective, flawed or non-conforming to the Product description on this Site, Customers are entitled to ask that the Product is repaired or replaced free of charge within a reasonable period and without major inconvenience to the Customer.
If repairing or replacement is impossible or disproportionate, or if the Seller has not remedied the shortcoming within a reasonable period or without major inconvenience to the Customer, Customers are entitled to ask for a total or partial refund of the Purchase price.
In order to submit a claim for a defective, flawed or non-conforming Product and return the concerned Product, Customers shall contact the Customer service and agree on the modalities of the Return.
THIS WARRANTY SHALL CONTINUE FOR A PERIOD OF 2 (TWO) YEARS FROM THE DATE OF TENDER OF DELIVERY OF THE PRODUCTS TO THE CUSTOMER. THE CUSTOMER SHALL INFORM THE SELLER OF ANY DEFECT WITHOUT UNDUE DELAY UPON DISCOVERING THE DEFECT.
NO WARRANTY APPLIES IF THE CUSTOMER IS RESPONSIBLE FOR THE LACK OF CONFORMITY OF THE PRODUCTS, INCLUDING BUT NOT LIMITED TO THE CASE WHEN THE PRODUCTS HAVE NOT BEEN USED, STORED, MAINTAINED OR WASHED IN STRICT ACCORDANCE WITH THE INSTRUCTIONS SET OUT ON THE PRODUCT LABELS.
IN THE EVENT THAT ANY PRODUCT IS DEFECTIVE, FLAWED OR NON-CONFORMING TO THE ORDER OR THE PRODUCT DESCRIPTION ON THIS SITE, CUSTOMER REMEDIES SHALL BE LIMITED TO THOSE DESCRIBED IN THESE TERMS AND CONDITIONS. UNDER NO CIRCUMSTANCES SHALL THE SELLER BE LIABLE FOR CLAIMS FOR ANY DAMAGES, WHETHER DIRECT, IMMEDIATE, FORESEEABLE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL OR FOR ANY EXPENSES OR INCURRED BY REASON OF THE USE OR MISUSE, SALE OR FABRICATION OF PRODUCTS WHICH DO NOT CONFORM TO THE ORDER OR THE PRODUCT DESCRIPTION ON THIS SITE. THESE TERMS AND CONDITIONS DO NOT AFFECT LOCAL STATUTORY RIGHTS.
Customers can return a Product or exchange a Product for an item of different colour and size, when available in stock, or return the Products within 30 (thirty) days from the date of delivery of the Product.
In case of return, the Seller will proceed to refund the Customer for the full Purchase price paid (with the exception for the amount paid by using Voucher or Discount codes, as indicated under Section 11), in a prompt manner after receiving the returned Products from the Customer. Refunds will be carried out via the same payment method initially used by the Customer for the Order.
To apply for a Product exchange or return, Customers must first ask the Seller to release a Returns Merchandise Authorization (“R.M.A”) before returning any Product.
When contacting the Customer service for returns, Customers are kindly requested to specify the unique identifying number of the Order.
Every Product must be returned having attached the security tag and all labels, in its original packaging and with all the accessories and covers (case, hangers, garment covers, etc.) received with the Order; it must not show any signs of use, scratches or be altered in any way (worn, washed, ironed, etc.) and the Product must be returned in the same condition it was shipped in and packaged appropriately. All shoes should be tried on a carpeted surface; in case of any sole degradation, the Seller reserves the right to refuse the return of the shoes.
The Seller offers Customers a complimentary return service free of any shipping charges (“Complimentary return service”). To enjoy this service, Customers are required to complete the electronic Return request with the pickup address, pickup date and contact details. If Customers want to change the pickup date after submitting the electronic Return request, they must contact FedEx (www.Fedex.com) to agree for a new pickup date, referring to the Tracking number reported in the email received at the end of the return process.
Customers must always return the Products within 15 (fifteen) days after receiving the R.M.A.
Any other method of returning the Products outside of the Complimentary return service will be at the Customer’s expense. By using any other option outside of the Complimentary return service to return the Products, Customers acknowledge and agree to be liable for any loss or damage to the Products during the return process.
Customers should dispatch the Products for return from the same country where the Products were first delivered.
Products can also be returned to one of the Brunello Cucinelli boutiques indicated during the return process. In this case, after indicating the Product to return or exchange, Customer should select the “Return in a store” option, then choose a boutique from the list of available boutiques and select a date and time for the Return in boutique. After completing the online procedure, the Customer will receive a Returns Merchandise Authorization email, reporting a summary of the inserted information.
Customer must return Products to the selected Boutique within 15 (fifteen) days after the receipt of the Returns Merchandise Authorization.
Customers are invited to return the Orders at the designated boutique in person or by delegating another person, whose personal data (such as: name, surname, email and phone number) must be indicated during the return process.
4. A copy of their own ID.
The Seller may refuse to accept any further Orders from a Customer after multiple returns on previous purchases by the same Customer.
BRUNELLO CUCINELLI CANNOT GUARANTEE IN ANY WAY THAT THE SITE, INCLUDING ITS SITE CONTENT, SERVICES AND FEATURES, WILL BE UNINTERRUPTED, THAT ANY DEFECTS FOUND IN THE SAME WILL BE CORRECTED OR THAT THE USE OF THE SITE BY THE USER WILL PRODUCE ANY SPECIFIC RESULTS. THE SITE AND SITE CONTENT ARE PROVIDED IN THE CURRENT STATE AND ARE AVAILABLE “AS IS”.
THE SELLER GUARANTEES CUSTOMERS THAT THE PRODUCTS ARE NOT DEFECTIVE OR FLAWED AND THAT THE PRODUCTS CONFORM TO THE PRODUCT DESCRIPTION GIVEN ON THIS SITE.
THIS WARRANTY SHALL CONTINUE FOR A PERIOD OF 2 (TWO) YEARS FROM THE DATE OF TENDER OF DELIVERY OF THE PRODUCTS TO THE CUSTOMER.
NO WARRANTY APPLIES IF THE CUSTOMER IS RESPONSIBLE FOR THE LACK OF CONFORMITY OF THE PRODUCTS, INCLUDING BUT NOT LIMITED TO WHEN THE PRODUCTS HAVE NOT BEEN USED, STORED, MAINTAINED OR WASHED IN STRICT ACCORDANCE WITH THE INSTRUCTIONS SET OUT ON THE PRODUCT LABELS.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, BRUNELLO CUCINELLI SHALL NOT IN ANY CASE BE HELD LIABLE TOWARDS USERS, CUSTOMERS OR TO ANY THIRD PARTY FOR ANY LOSS OR DAMAGE ARISING FROM USE OF THIS SITE AND/OR THE CONTENTS, OR ANY INFORMATION CONTAINED IN THE SITE OR RELATING TO THE PRODUCTS.
BRUNELLO CUCINELLI ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR ANY DIRECT OR INDIRECT DAMAGES, REGARDLESS OF THE CAUSE, ORIGIN, NATURE AND CONSEQUENCES, INCLUDING, WITHOUT LIMITATION, THE COSTS INCURRED OR ANY OTHER LOSS OF INTANGIBLE ASSETS ARISING FROM THE USE OF THE SITE OR INABILITY TO USE OR FROM RELIANCE ON THE INFORMATION PROVIDED, DIRECTLY OR INDIRECTLY, AVAILABLE ON THE SITE. THE SELLER SHALL NOT BE HELD LIABLE BY REASON OF WITHDRAWING ANY PRODUCT FROM THE SITE AFTER AN ORDER OR FOR REFUSING TO ACCEPT ANY ORDER.
ANY STATUTORY LIABILITY REMAINS UNAFFECTED.
The User acknowledges and agrees to indemnify Brunello Cucinelli from any legal action, claim, claims by third parties and related damages and expenses, including legal, arising from, or related to, use in any irregular way and/or illegal use of the Site and/or the Contents of this Site by the User or by persons under their protection or direction.
• A statement by the claimant made under penalty of perjury that the information in the notice of claim is accurate and that the claimant is the copyright owner or is acting on behalf of the copyright owner.
Copyright Agent c/o Brunello Cucinelli S.p.A.
Viale Parco dell’Industria 5, 06073 Frazione Solomeo – Corciano (PG), Italy.
Any dispute over the Contents and the Use of this Site shall be governed by the laws of the United States and of the State of New York.
All enquiries, including those concerning Orders, should be submitted to customerserviceusa@brunellocucinelli.com or notified to Brunello Cucinelli by using the contact form available in the “Contact Us” section of the Site main menu.
In these Terms and Conditions, words in the singular include the plural meaning and words in the plural include the singular meaning.
No waiver by Brunello Cucinelli of any breach of these Terms and Conditions shall be a waiver of any preceding or succeeding breach.
Invalidity or unenforceability of one or more provisions of these Terms and Conditions shall not affect the validity of any other provision of these Terms and Conditions. If possible, any unenforceable provision within this Agreement will be construed to reflect the original intention of the Parties.
These Terms and Conditions are subject to copyright. Any unauthorized reproduction, even partial, of these Terms and Conditions is strictly forbidden.
The Seller offers Customers a complimentary return service free of any shipping charges (“Complimentary return service”). To enjoy this service, Customers are required to complete the electronic Return request with the pickup address, pickup date and contact details. If Customers want to change the pickup date after submitting the electronic Return request, they must contact FedEx (Fedex)to agree for a new pickup date, referring to the Tracking number reported in the email received at the end of the return process.
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Stroth, Friedrich Andreas Device on title, head and tailpiece and an elaborate woodcut initial. First edition. Papered spine. 12 p. Stroth treatise of biblical text criticism. Printed to celebrate the occasion of Johann Jakob Griesbach’s (1745-1812; biblical text critic) appointment as "privatdozent" at Halle. Friedrich Andreas Stroth (1750-1785) was one of the most important German schoolmen of the Enlightment. Studied theology and philosophy at University of Greifswald and Halle, he became the Rector of the Gothaer Gymnasium. Three lines of contemporary note in ink on p. 3. Corners artistically restored. In good condition.
Dagover, Lil]; Ervine, St John First edition, published as manuscript, not for sale. Lil Dagover’s copy. In publisher’s wrappers. 87, (1) p. Lil Dagover’s copy of the script of the play "Die erste Frau Shelby", she played the role of Mrs. Janet Selby, the main character of John Ervin’s play. Spine sunned. Dagover’s name and address in ink on front cover by her own hand. With signes, notes underlines in red, blue and black pencil, also in blue and red ink on almost each pages by Dagover. One addiditional manuscript page in red ink added. Cover somewhat bumped, slightly worn. Yellowed, due to acidic paper. Overall in very good condition. First edition, published as manuscript, not for sale. Lil Dagover’s copy.
Mouraud, Tania Illustrated with several photographic reproductions. First edition. Limited of 77 copies, hand numbered, signed edition. In original cloth, with printed paper on front panel. 24 leaves. First edition of Mouraud’s first artist’s book. She started her career in the 1960s. Explored multiple media including painting, installation, photography, performance, video and sound. Her main topic is the relationship between art and social connections. This artist’s book is an example of her exploration of this topic, showing specially arranged photographs or fragments of photos of those general things that surrounds the people daily. Starts with "the mat you sleep on" and continues with "the water refreshing you" through "the fields surrounding your house" until "the people listening to you". Scarce and early work of the artist, WorldCat locates only one copy worldwide. In original cloth, with printed paper on front panel First edition. Limited of 77 copies, hand numbered, signed edition.
Berlioz, Hector; [Moore, Thomas]; [Gounet, Thomas] First edition. Signed and inscribed on title page by Berlioz in brown ink: "To my dear fried Robert". (2), 33, (1) p. Inscribed copy of the first edition of Berlioz’s nine songs on Irish poetry. The nine poems of the Neuf Mélodies taken from Thomas Moore’s Irish Melodies, translated into French by Thomas Gounet. The last song is a paraphrase of the speech of the he Irish rebel Robert Emmet, just before his execution in 1803. Their settings include solo romances, duos, and choral pieces accompanied by the piano. Untrimmed. Pages moderately chipped, occasional foxing throughout. Overall in fine condition. First edition. Signed and inscribed on title page by Berlioz in brown ink: "To my dear fried Robert".
Picasso, Pablo]; [Diaghilev, Sergei]; [Lifar, Serge] Original, vintage poster with a mounted lithographic print after Pablo Picasso. Text in French. Poster printed in black on yellow paper, lithograph printed in color. Poster size: ca. 1000 × 618 mm. Image size: 585 × 495 mm. Original, vintage poster of the 1939 Ballets Russes exhibition in Paris, with a mounted lithographic print after Picasso. This poster of the great 1939 retrospective exhibition of Ballets Russes features a color reproduction of Picasso’s costume for the Chinese Conjuror from the Parade. The exhibition, organised by Serge Lifar, the former principal dancer of Ballets Russes and the ballet master of the Paris Opera at the time, was the first significant celebration of Sergei Diaghilev, the founder of Ballets Russes. Under the patronage of the Prince of Monaco and the Ministry of National Education, over five hundred items were presented at the exhibition. Founded by Sergei Diaghilev (1872-1929) and active between 1909 and 1929, Ballets Russes is considered to be the most influential ballet company of the 20th century. It became famous for its ground-breaking collaborations between composers, choreographers, designers and dancers. The company collaborated with composers such asIgor Stravinsky,Claude Debussy, andSergei Prokofiev, artists such asPablo Picasso, Vasily KandinskyandHenri Matisse, and costume designersLéon BakstandCoco Chanel. Paradeis aballetwith music byErik Satie (1866-1925)and a one-act scenario byJean Cocteau (1889-1963), composed in 1916-1917 onSergei Diaghilev’s commission. It premiered on May 18, 1917, at theThéatre du Chateletin Paris, with costumes and sets designed byPablo Picasso (1881-1973). Extremely scarce. [Ref: Wild, Nicole: Les Arts du Spectacle en France. Paris: Bibliothèque nationale, 1976, 1370.]. Poster and lithograph with light traces of creasing. Lower corners of the poster dog-eared, lower right edge slightly chipped. Overall in fine condition. Original, vintage poster with a mounted lithographic print after Pablo Picasso. Text in French. Poster printed in black on yellow paper, lithograph printed in color.
Hedlund, G. P. 19th-century scrapbook with printed title page and 53 leaves with drawings. In contemporary green half leather. 11 plates hand-colored, plate no. 28 omitted by the designer. 19th-century scrapbook with several watercolored garden plans by a student of the Swedish Gardening Association. Fifty-three drawings of diagrams, plans, and designs of gardens, rosariums, garden building, doors, windows, and various tools for gardening or for gardens. Designed by a student of Horticulture and Garden Design studies at the Swedish Gardening Association between 1887 and 1889. Svenska Tradgardsföreningen, the Swedish Gardening Association was founded in 1832, modeled after the British Royal Horticultural Society. The Association organized the first garden exhibition in Sweden in 1833, however, most of its activities were confined to the city, with pioneering cultivation and building of greenhouses. Its school of horticultural studies for apprentice gardeners was opened in 1840. Because of financial difficulties, the Svenska Tradgardsföreningen ceased its activities in 1911. Spine rubbed with small damages. Corners bumped, edges of the binding rubbed. Inside clean. Overall in fine condition. In contemporary green half leather 19th-century scrapbook with printed title page and 53 leaves with drawings.
Medgyes, László (Ladislas) Illustrated with 20 full page Art Nouveau illustrations by Medgyes. The five figural tail pieces are also by him, just as the illustrated title page that is printed in black and yellow. First edition. Limited edition up to 250 copies. Numbered, one of 200 copies printed on hand made paper, and bound into half vellum. In publisher’s half vellum. 88, (4) p. Twenty short stories by László Medgyes (1892-?) the Hungarian avant-garde graphic artist and stage designer. He held his first exhibitions at the gallery of the most important Hungarian avant-garde magazine, the "MA" that also published his works in print. Since the 1920s he lived in Paris where he established his school (École Medgyes pour la Technique du Théâtre) together with the Hungarian architect Ern? Goldfinger, for scenic design. He worked as interior designer throughout Europe and in the US. One of the most beautiful Hungarian Art Nouveau books. Scarce. WorldCat locates only 2 copies in institutional holdings worldwide, none in the US. First edition. Limited edition up to 250 copies. Numbered, one of 200 copies printed on hand made paper, and bound into half vellum.
Hitler, Adolf Luxury edition, with the stamp of the deuxième division blindèe G. 5. on half-title, that states the circumstances of the origin of the volume. With photographic frontispiece of Hitler’s portrait, separated by tracing paper. In publisher’s vellum, with gilt ruling to edges on front and rear panel. Spine with four raised bands, with gilt ruling and title. Gilt head. (1 [leaf of frontispiece]), 360; 351, (29) p. 1934 full vellum, luxury edition of Mein Kampf, taken from Hitler’s own collection at Berghof, his home in Berchtesgaden, Obersalzberg in Germany, by the deuxième division blindée (French 2nd Armored Division). With the authentication stamp of unit, and the text, that certifies the origin of the book on half-title: "Cette pièce provient des collections personnelles d’Adolf Hitler au Berghof" (This piece comes from the personal collections of Adolf Hitler at the Berghof). Dated May 4, 1945, Berchtesgaden, the day when the unit took over the place. The first few leaves with very light foxing, otherwise clean. Overall in fine condition. In publisher’s vellum, with gilt ruling to edges on front and rear panel. Spine with four raised bands, with gilt ruling and title. Gilt head Luxury edition, with the stamp of the deuxième division blindèe G. 5. on half-title, that states the circumstances of the origin of the volume. With photographic frontispiece of Hitler’s portrait, separated by tracing paper.
Toroczkai-] Wigand [Ede] (Ede Toroczkai-Wigand) Plans of buildings, several images of interior design, furniture and stained glass designs. First edition. llustrated title page. Text in Hungarian and German. Initials printed in red and blue. Fine set of typography. Color portrait of Toroczkai Wigand (by Bertalan Karlovszky). In illustrated hard paper. 124, (2) p. "Architectura" is the compilation of Toroczkai-Wigand’s works in architecture and design, with several colored plates. Ede Toroczkai-Wigand (1869-1945) was a Hungarian architect and designer of decorative art. The thoughts of John Ruskin and the Arts and Crafts Movement had a major influence on him. Toroczkai-Wigand had the idea that art, architecture, folk customs and language is a complex structure and this complexity and "holism" reflecting in the unique character of his works. Beside being a prolific architect and designer, who was awarded at many international exhibitions (Paris, 1900; Torino, 1902; St. Louis, 1904), Toroczkai-Wigand published bibliophilic books, partly on his art and partly about the art, architecture and the folk tales of the Székelys in Transylvania. In these publications he combined the content and the typography of the print into a special unity, in the manner of the unique Transylvanian Art Nouveau style. First edition. llustrated title page. Text in Hungarian and German. Initials printed in red and blue. Fine set of typography. Color portrait of Toroczkai Wigand (by Bertalan Karlovszky).
Biró, Mihály) Llithograph postcard, printed in red and black. 140 × 90 mm. The postcard pictures the front page of the Social-democrat newspaper "Népszava" (People’s Voice.), with Mihály Biró’s (1886-1948) famous image of the "Red Man with Hammer". Biró’s original poster was printed in 1911. Llithograph postcard, printed in red and black.
Erasmus, Desiderius First edition. Woodcut printer’s device on title page and final leaf verso. Papered spine. 30, (2) p. A rare edition of the last two colloquies of Erasmus, Epicureus (The Epicurean), and Problema (A Problem). Scarce, we could trace only five copies in institutional holdings (British Library; BNF; Paris, Mazarine; University of Oxford; University of Illinois). Water stain to upper corners of last four leaves. Contemporary, faint Latin note in ink on the final page. In fine condition. First edition. Woodcut printer’s device on title page and final leaf verso.
Lem, Stanis?aw Second edition. Inscribed by the author. in 1984. In publisher’s cloth, with the original dust jacket, both with Jan S. Miklaszewski’s illustration. 324, (4) p. Inscribed copy of Lem’s celebrated novel G?os pana (His Master’s Voice). The first edition was published by the same publisher in 1968. Stanis?aw Lem (1921-2006), the author of Solaris, was a Polish science fiction writer, the most celebrated SF author in the Communist world. Jacket very slightly chipped. Overall in fine condition. In publisher’s cloth, with the original dust jacket, both with Jan S. Miklaszewski’s illustration Second edition. Inscribed by the author. in 1984.
Weber, Max First edition. In later black buckram, with gilt title on spine. From the "Archiv für Sozialwissenschaft und Sozialpolitik" (1905, vol. 20 and 21). 1-54; 1-110 p. First edition of Max Weber’s Protestant Ethic, the founding text of economic sociology and one of the most important texts of general sociology. Max Weber (1864-1920) was a German sociologist and political economist, considered as one of the founders of sociology besides Émile Durkheim and Karl Marx. He studied law in Heidelberg and Berlin and after earning his law doctorate he started to teach commercial law in Berlin, and economics in Freiburg and Heidelberg, until 1903. Later he became the associate editor of the academic journal of social sciences, the Archiv für Sozialwissenschaft und Sozialpolitik, where the present work, The Protestant Ethic and the Spirit of Capitalism, was first published in two parts in 1905. The Protestant Ethic is Weber’s seminal and most famous essay in which he locates the origins of capitalism in the lifestyle characterized by ascetic Protestantism and opposes the Marxist concept of dialectical materialism and relates the rise of the capitalist economy to the Calvinist belief in the moral value of hard work. To this day this essay is considered one of the most important texts in sociology and economic history. Annotated and underlined in pencil. Otherwise in very good condition. From the "Archiv für Sozialwissenschaft und Sozialpolitik" (1905, vol. 20 and 21) First edition. In later black buckram, with gilt title on spine.
Mantegazza, Steffano Second edition (first in 1601). In contemporary paper. (20), 476, (12) p. Rare Italian travelogue of Palestine through Egypt, Sinai, and the Greek islands. An account of Steffano Mantegazza’s travel to Jerusalem around 1600. Mantegazza traveled to Egypt, Sinai and the Greek islands of Zakynthos and Cephalonia. His work contains a detailed account of Alexandria, Cairo, and the Sinai. Although Mantegazza concentrates predominantly on natural history and religious sights he also includes an important report on the Beduin occupation between 1516 and 1518 of the Saint Catherine’s Monastery, during the interregnum between the Mamluk and Ottoman rule. Ref.: Kalfatovic 78 Bibl.: Kalfatovic, M. R.: Nile Notes of a Howadji: A Bibliography of Travelers’ Tales from Egypt, from the Earliest time to 1918. Metuchen, N.J., London: Scarecrow Press, 1992.; Schur, N.: St. Catherine’s Monastery: When Was the Recently Discovered Cache of Ancient Manuscripts Hidden? In: The Biblical Archaeologist. Vol. 44, No. 3 (Summer, 1981), pp. 133-134. Title with woodcut printer’s device, text printed in red and black. With woodcut headpieces and initials throughout. Spine and foot edge lettered in ink. Contemporary ownership inscription on title page. Spine somewhat discolored, with minimal damages at head and foot. Panels stained, spotted, lightly dusted. Inside clean. Overall in very good condition.
Knízák, Milan Handmade, stapled publication with a stamp of the artist’s name and the gallery on the cover. Signed, numbered (one of 100 copies). 210 mm × 300 mm. The publication includes a double-sided typescript from Kní?ák in Polish, and a vintage, black and white gelatin silver photographic print, mounted on the rear cover, dated to 1977. Photograph size: 162 mm × 226 mm. Limited edition booklet of the Czech artist, Milan Kní?ák (b. 1940), with the typescript of two texts from the artist and a vintage gelatin silver print of his 1977 performance. The booklet was created on the occasion of the 1987 solo show of Kní?ák that took place in the Galeria Potocka in Krakow, Poland. The booklet includes two texts from him, titled Operacje matematyczne (Mathematical Operations) and Wymuszone symbiozy (Enforced Symbioses). The latter can be read as a description of his eponymous 1977 performance of which there is a vintage, black and white photograph in the booklet. Milan Kní?ák is a Czech performance artist, musician, and art theoretician who was a key figure in the development of action art and performance art in Prague in the 1960s. Kní?ák is regarded as one of the most important artists of the Fluxus movement in Eastern Europe. He was appointed as the director of "Fluxus East" by George Maciunas (1931-1978), the founder and coordinator of the Fluxus. A selection of Kní?ák’s works, including a copy of the photograph in this booklet is being held in the collection of Museum of Modern Art, New York. Galeria Potocka was a progressive contemporary art gallery in Krakow, that operated between 1986 and 2010. It was founded by the Polish critic, curator, art theoretician and author, Maria Anna Potocka (b.1950) who was also the founder of the first private gallery in communist Poland, the Galerii PI. Covers somewhat sunned, with two barely noticeable stains on the front. With a line on title page in red marker, presumably on purpose. ‘Styczen" stamped on title page. In fine condition. Signed, numbered (one of 100 copies). 210 mm × 300 mm. The publication includes a double-sided typescript from Kní?ák in Polish, and a vintage, black and white gelatin silver photographic print, mounted on the rear cover, dated to 1977. Photograph size: 162 mm × 226 mm Handmade, stapled publication with a stamp of the artist’s name and the gallery on the cover.
Maurer, Dóra; [Bán, András (afterword by)] First edition. Association copy, inscribed by Maurer to Zsófia Balla. In publisher’s photographic cover. Text in Hungarian and English. 16 p. Inscribed exhibition catalogue of Maurer’s 1979 show at the Pécsi Galéria. Dora Maurer (b. 1937) Hungarian avant-garde artist, who creates her works in photography, film and graphic design. Her works can be found in the MoMA. This copy is inscribed to Zsófia Balla (b. 1949) the one of the most prominent contemporary Hungarian female poets. In publisher’s photographic cover. Text in Hungarian and English First edition. Association copy, inscribed by Maurer to Zsófia Balla.
Ladik, Katalin First edition. In original, photographic cover. Illustrated throughout by the author. The illustrations are printed in silver on black paper. 107, (5) p. First edition of Ladik’s illustrated book of poems. Katalin Ladik (b. 1942) is a Yugoslavian (today Serbia) born Hungarian radical female performance artist, poet and writer. Besides other prizes, in 2016 she was awarded by the LennonOno Grant for Peace together with Ai Weiwei, Anish Kapoor and Olafur Eliasson. She was an exhibitor at "documenta 14" in 2017. The publisher of the book was the avant-garde, literary and art magazine of the Hungarians in Yugoslavia (Serbia) "Új Symposion". Slightly rubbed at extremities. Inside fine. Overall in very good condition. Illustrated throughout by the author. The illustrations are printed in silver on black paper First edition. In original, photographic cover.
Novak, Mili [Shmuel] First edition. In publisher’s wrappers, printed in red and black. Ownership inscription and collection stamp on title page. 47, (1) p. First edition Mili [Shmuel] Novak’s collection of modernist Hebrew poems. Novak’s poetry was inspired by the October Revolution in the style of Vladimir Mayakovsky and Alexandr Blok. The typographic cover design was created by Manuel (Emanuel) Shechtman (1900-1941), a graphic and scenic designer of Kiev. Tiny worm holes throughout, no effect to the text. Paper yellowed due to aging. Cover artistically restored. Overall in very good condition. Ownership inscription and collection stamp on title page First edition. In publisher’s wrappers, printed in red and black.
First edition. In publisher’s illustrated, red wrappers, printed in black. Cover design by Lehnert. Modernist layout. 79, (5) p. . Booklet of the 1929 Socialist Culture Day in Frankfurt, a conference organised by the Socialist Cultural Association, a left-wing organization of the Weimar Republic. The topic of the conference was the film and radio with a special attention given to their social functions and their possible roles as vehicles of the socialist cultural movement. The booklet contains the transcripts of the lectures given at the conference: a lecture on the importance of film and radio for the working class by Heinrich Schulz (1872-1932), the leader of the Socialist Cultural Association ; a lecture on the technical and cultural possibilities of film, given by Siegfried Nestriepke (1872-1932), a social democratic journalist and theater director; the German-Israeli pianist and politician, Leo Kestenberg’s (1882-1962) lecture on sound film; a lecture on film music by the German-born composer, Klaus Pringsheim (1883-1972) and a lecture on theatre and broadcasting, given by Leopold Jessner (1878-1945) a Jewish-German producer and director of German Expressionist theater and cinema known for his 1921 silent film, Hintertreppe. Rear cover, and the last few pages slightly dog-eared. Pages slightly yellowed due to ageing. In fine condition. Cover design by Lehnert. Modernist layout First edition. In publisher’s illustrated, red wrappers, printed in black.
Biron, Claude]; [Vallemont, abbé de (Pierre Le Lorrain)] First edition. In contemporary calf. Panels with gilt frames. Spine with five raised bands, the compartment richly gilt with floral motives, and titled. Marbled edges, and endpapers. A copy of the variant with no author’s name on title page. Ownership stamp on title page "Bibliothéque d’Eugène de Froberville". 12mo, signatures: ã8, ?4, ?4, A-2A8/4 (ã1 verso, 2A4 blank); , xxiii, , -282,  p. and  engraved plates (one folded). [Signature L bound into twice.]. Scarce late 17th-century travelogue of the West and East Indies. Claude Biron’s scarce and interesting travel narrative and collection of curiosities. A rich collection of information about the natural history of the Indies gathered personally on his two voyages. In the West Indies, he visited Cayenne, Martinique, and Guadeloupe. Illustrated with seven engraved plates of plants and animals, as well as a folded portrait of Confucius. Provenance: The French ethnographer, explorer and geographer Eugène de Froberville’s (1790-1871) ownership stamp on title page. Sabin 5582. Occasional light brown spots, otherwise clean. Overall in very good condition. In contemporary calf. Panels with gilt frames. Spine with five raised bands, the compartment richly gilt with floral motives, and titled. Marbled edges, and endpapers. A copy of the variant with no author’s name on title page. Ownership stamp on title page "Bibliothéque d’Eugène de Froberville"
Puente, Juan de la First edition. First volume, no more published. our books, divided into two parts, each with distinct pagination. In contemporary limp vellum. Tinted edges. Spine lettered in ink. Edges tinted. Engraved title page. Woodcut head and tail pieces, and initials. Text in two columns, with printed annotations. Text area and text columns ruled. 1612. 6º: [ ]6, ?6, ??4, A-Z6, Aa-Hh6, a-z6, aa-gg6 ([ ]1v, [ ]6, ?2v, ?3v, Zz6v, dd3v, gg6v blank); 371, 371 p. (some mispaginated). Rare Spanish historical and political work with references to Mexico and Brazil. Written by Juan de la Puente (15?-1629) the Spanish Dominican dean, mythographer, treatise writer, President of the Council of Castile and the Chancillería de Valladolid, chronicler of Philip III. In this extraordinary work, whose title and frontispiece encapsulate the notion of the superiority of Spain to all other countries, he demonstrates the apostolic founding of the Spanish Church and its equality with its Roman counterpart. He surmised that St Thomas may have visited the Americas and preached the gospel in Mexico also in Brazil, although without leaving much evidence of any survival of Christian beliefs among the natives of those countries. He supported Gregorio García’s theory that the American Indians descended from the Ten Lost Tribes of Israel and "declared that ‘natural love which a man has for his country is born in the stars which engender us and preserve us in our first years’. It was this emphasis on the power of the stars which led him to insert the notorious oft-cited note: ‘the heavens of America induce inconstancy, lasciviousness, and lies: vices characteristic of the Indians and which the constellations make characteristic of the Spaniards who are born and bred there’. Here was an affirmation against which creole patriots were to rage for more than a century but which was destined to enjoy wide circulation." (Brading 1993, pp. 200) The entire work was planned to be consist of three tomes, however, only the present first volume was published. Palau 74250; Not in Sabin Bibl.: Brading, D. A.: The First America: The Spanish Monarchy, Creole Patriots and the Liberal State 1492-1866. Cambridge: Cambridge University Press, 1993. Binding dusted, stained. Later shelfmark vignette on spine. Endpapers with wormholes and stains. Inside clean. Overall in very good condition. our books, divided into two parts, each with distinct pagination. In contemporary limp vellum. Tinted edges. Spine lettered in ink. Edges tinted. Engraved title page. Woodcut head and tail pieces, and initials. Text in two columns, with printed annotations. Text area and text columns ruled First edition. First volume, no more published.

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In fine


'(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal.' Appellant American Farm Lines (AFL) filed an application for temporary operating authority. 4 The application was accompanied by a supporting statement of the Department of Defense (DOD). The ICC Temporary Authorities Board denied the application on the ground that the 'applicant has not established that there exists an immediate and urgent need for any of the service proposed.' Divison I of the ICC (acting as an Appellate Division) reversed the Board and granted AFL temporary authority. Protesting carriers sought review of this action in the United States District Court for the Western District of Washington. A single judge of the District Court temporarily restrained the operation of the ICC order and the ICC thereupon ordered postponement of the operation of its grant. At that time numerous petitions for reconsideration were pending before the Commission and the stay order did not direct the Commission to stay its hand with respect to them. The record was indeed not filed with the court until much later. Meanwhile, the Commission granted the petitions and reopened the proceeding to receive a further supporting statement of DOD. This took the form of the verified statement of Vincent F. Caputo, DOD Director for Transportation and Warehousing Policy, which was submitted as a purported reply to the pending petitions for reconsideration. Based upon this statement, the ICC entered a new order granting the AFL application. A single judge of the District Court restrained the operation of the new order. Thereafter a three-judge District Court conducted a full hearing on the merits. 5 The ICC admitted at that stage that its first order 'may not have been based upon evidence to support its conclusion,' but argued that there was no infirmity in the new order. The three-judge court set aside both orders. 298 F.Supp. 1006. Both AFL and ICC appealed to this Court and we noted probable jurisdiction. 6 396 U.S. 884, 90 S.Ct. 173, 24 L.Ed.2d 159.
This power of the Commission to reconsider a prior decision does not necessarily collide with the judicial power of review. For while the court properly could provide temporary relief against a Commission order, its issuance does not mean that the Commission loses all jurisdiction to complete the administrative process. It does mean that thereafter the Commission is 'without power to act inconsistently with the Court's jurisdiction.' Inland Steel Co. v. United States, 306 U.S. 153, 160, 59 S.Ct. 415, 419, 83 L.Ed. 557. When the Commission made the additional findings after its first order was stayed by the court, it did not act inconsistently with what the court had done. It did not interfere in the slightest with the court's protective order. What the Commission did came before the court was ready to hear arguments on the merits and before the record was filed with it. Moreover, the Commission in light of the District Court's stay, by express terms, directed AFL not to perform operations under the first order and made the second order effective only on further order of the Commission. 9 Since by the Act the Commission never lost jurisdiction to pass on petitions for rehearing, and since the stay order did not forbid it from acting on those pending petitions, it was not necessary for the Commission to seek permission of the court to make those rulings.
Insofar as ICC regulations emphasize the requirement of information concerning the ability of existing carriers to provide the service sought by a shipper, they implement not only the statutory standard under Interstate Commerce Act § 210a, 49 U.S.C. 310a, but also the fundamental scheme of our national transportation policy. Ever since the enactment in 1887 of the Interstate Commerce Act, 24 Stat. 379, national policy has reflected the congressional determination that the public interest is served by regulating competition among carriers. See, e.g., Act of September 18, 1940, § 1, 54 Stat. 899, 49 U.S.C. preceding § 1. Regulation of entry into the motor transportation industry is one important feature of the pattern of regulation. American Trucking Associations, Inc. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953); Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R. Co., 353 U.S. 436, 440, 77 S.Ct. 999, 1002, 1 L.Ed.2d 963 (1957) (Burton, J., dissenting). The Motor Carrier Part of the Interstate Commerce Act was passed because 'the industry was unstable economically, dominated by ease of competitive entry and a fluid rate picture' and 'as a result * * * became overcrowded with small economic units which proved unable to satisfy even the most minimal standards of safety or financial responsibility.' Therefore, 'Congress felt compelled to require authorization for all interestate operations to preserve the motor transportation system from overcompetition.' American Trucking Associations, Inc. v. United States, supra, 344 U.S. at 312313, 73 S.Ct. at 316. To ensure fair and effective regulation of entry, 49 U.S.C. 305309 require that entry ordinarily be authorized by the ICC only after full adversary proceedings.
This congressional concern to protect existing carriers was again forcefully expressed in the 1968 amendment to § 203(b)(5) of the Act, 82 Stat. 448, 49 U.S.C. 303(b)(5) (1964 ed., Supp. IV), which curtails substantially the authority of agricultural cooperatives like AFL to haul nonmembers' freight.
ICC Rules 1131.2(c)(8) and (9) are not hypertechnical rules, or mere matters of housekeeping convenience. They go to the heart of the issue in a temporary authority proceeding. The significance of the rules does not depend on whether, in the Court's words, they 'confer important procedural benefits upon individuals.' but rather on the fact that they are designed to elicit information crucial to determining whether in light of congressional policies a particular factual situation warrants the grant of a temporary authority. Nor is the question in this case, as the Court assumes, whether the ICC erred in failing to require 'strict' compliance with the rules. The District Court did not hold the Commission to a standard of strict compliance, and appellees have not argued that strict compliance is required. The issue is whether there was reasonable compliance with rules that the ICC purported to apply in this case. 2 The District Court found that the Caputo statement relied on by the ICC in issuing the new order 'fails to show any efforts by the Department of Defense to obtain from existing carriers the service AFL seeks to provide, or the identity of any existing carriers who failed or refused to provide the needed service and the reasons given for any such failure or refusal.' 298 F.Supp., at 1011. I reach the same conclusion from my examination of the statement.
AFL argues that (8) and (9) require information, not action, and that therefore a response that no effort has been made to obtain the service from other carriers is compliance with both items. However, apart from the doubtful premise that in the circumstances of this case the statute would authorize a grant of temporary operating authority without proof of such effort, the argument is foreclosed by the ICC's express finding in its second order that DOD did in fact attempt to obtain the service elsewhere. 3 See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 1760, 91 L.Ed. 1995 (1947); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168169, 83 S.Ct. 239, 245 246, 9 L.Ed.2d 207 (1962).
In sum, the DOD statement fails to supply that concrete evidence of the inability of particular existing carriers to provide the needed service that would enable protestants and ICC to make an informed assessment of AFL's application. Of course, DOD was not called upon to supply the specifics of innumerable instances of inadequate or unavailable service or of every effort to obtain improved service. However, the congressional concern expressed in the statutory limitation demanded that ICC be given at least enough specifics concerning inadequate or unavailable service and efforts to obtain better service so that protestants would have an opportunity for informed rebuttal and ICC the basis for an informed determination. It is of course irrelevant that DOD is the Nation's largest shipper and that its freight consists almost entirely of defense needs. ICC has held that '(w)here necessary facts are lacking' the Government is in no better position than any other shipper. Riss & Co., Inc., ExtensionExplosives, 64 M.C.C. 299, 328 (1955), National Freight, Inc., ExtensionCommodities in Bulk, 84 M.C.C. 403, 407 (1961).
AFL is a federation of agricultural marketing cooperatives created in 1964 to provide transportation for its members. By virtue of § 203(b)(5) of the Interstate Commerce Act, 54 Stat. 921, as amended, 49 U.S.C. 303(b)(5), AFL may transport freight for its members without obtaining a certificate of convenience and necessity from the ICC. In 1965 § 203(b)(5) was construed to exempt from the certification requirement any freight transportation by an agricultural cooperative for shippers other than its own members to the extent that such nonmember transportation is incidental and necessary to its principal transportation activities. See Northwest Agricultural Cooperative Assn. v. ICC, 9 Cir., 350 F.2d 252. The next year, AFL began transporting freight for DOD. In 19681969 AFL's ability to continue serving DOD was restricted by two events. First, certain competing carriers obtaned injunctions prohibiting AFL from making two consecutive movements for DOD and from transporting freight for any nonmember except when going to pick up or returning from delivery of, a member's freight. Munitions Carriers Conference, Inc. v. American Farm Lines, 10 Cir., 415 F.2d 747. Second, § 203(b)(5) was amended to restrict the exemption for agricultural cooperatives to those whose transportation for nonmembers does not exceed 15% of their total annual interstate transportation, measured by tonnage. See 82 Stat. 448, 49 U.S.C. 303(b)(5) (1964 ed., Supp. IV). AFL had transported 74,155,685 pounds for DOD between December 1966 and June 1968, and, in an effort to continue providing this service, applied to the ICC in May 1968 for temporary operating authority. The authority sought was to transport general commodities, including Class A and B explosives moving on government bills of lading over irregular routes between points in Kentucky, Indiana, Illinois, Missouri, Arkansas, Louisiana, Texas, Oklahoma, and Kansas on the one hand, and points in Washington, California, Nevada, Utah, and Arizona on the other.
It was once proposed that the same requirement be written into the law respecting those orders of the Commission reviewed by the courts of appeal as distinguished from the three-judge district courts. See H.R.Rep.No.1619, 80th Cong., 2d Sess., 4. But the ICC was deleted from the measure. Id., at 1. And the Act as approved covered only other designated agencies. 28 U.S.C. 2342 (1964 ed., Supp. IV).
Marvin STONE, Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE.
UNITED STATES et al. v. BENMAR TRANSPORT AND LEASING CORP. et al.
BELL LINES, INC., et al. v. UNITED STATES et al.
Donald L. WARNER, etc., et al., petitioners, v. KEWANEE MACHINERY & CONVEYOR CO.
Daniel Jay SCHACHT, Petitioner, v. UNITED STATES.


text:
JAMES CONLEY & another [Note 1] vs. SCOTT PRODUCTS, INC.
CIVIL ACTION commenced in the Waltham Division of the District Court Department on February 8, 1984.
On removal to the Superior Court Department the case was heard by Hiller B. Zobel, J., on a motion for summary judgment.
Alfred E. Nugent for the plaintiffs.
Timothy P. Wickstrom for the defendant.
O'CONNOR, J. This is an appeal from a grant of summary judgment for the defendant based on the statute of repose contained in G. L. c. 260, Section 2B, as amended by St. 1973, c. 777, Section 2. We transferred the case from the Appeals Court on our own motion. We affirm the judgment.
(UFFI) in the plaintiffs' home more than six years before February, 1984. The defendant moved for summary judgment grounded on both the three-year limitation of actions provision and the six-year repose provision of G. L. c. 260, Section 2B. A judge of the Superior Court denied the motion, but thereafter, on reconsideration, allowed it, and judgment was entered for the defendant, thus generating this appeal.
Mary Conley's answers to interrogatories establish that the defendant installed UFFI in the plaintiffs' home on November 28, 1977. According to Mary Conley's answer to an interrogatory, "[c]hemicals and insulation (catalyst foaming agent combined with compressed air and urea formaldehyde resin) were mixed inside a commercial truck (Mobil trailer type vehicle) then pumped through hoses into the exterior walls of [the] house in a liquid form."
The second clause of Section 2B is a repose provision imposing an absolute limit on the time within which actions to which it refers may be brought, irrespective of when the plaintiff was injured or discovered the wrong. Klein v. Catalano, 386 Mass. 701 , 702 (1982). Since more than six years elapsed between the installation of the insulation and the commencement of this action, the only arguable question is whether the repose provision applies to this case.
The repose provision applies to this case if the installation of insulation in a building constitutes "construction . . . of an improvement to real property" within the meaning of Section 2B. We conclude that it does. "Section 2B was intended . . . to apply . . . to parties who render particularized services for the design and construction of particular improvements to particular pieces of real property." Dighton v. Federal Pac. Elec. Co., 399 Mass. 687 , 696 (1987). Although the word "improvement" is not defined in the statute, this court and the Appeals Court have previously found the definition found in Webster's Third New Int'l Dictionary 1138 (1961) helpful: "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs." See Milligan v. Tibbetts Eng'g Corp., 391 Mass. 364 , 368 (1984); Raffel v. Perley, 14 Mass. App. Ct. 242 , 245 (1982). We are satisfied that this tort action arises out of an alleged deficiency or neglect in the construction of an improvement to real property. We see no significant distinction, and the plaintiffs suggest none, between this case and Salinsky v. Perma-Home Corp., 15 Mass. App. Ct. 193 , 198-199 (1983), a case in which the Appeals Court held that the installation of aluminum siding was within the statute.
[Note 2] General Laws c. 260, Section 2B, was amended by St. 1984, c. 484, Section 53, effective April 7, 1985. The statute as amended does not apply to this case. See City Council of Waltham v. Vinciullo, 364 Mass. 624 , 628 (1974). In any event, the resolution of this case would not have been different if the statute, as amended, applied.

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