On November 29, 1977 plaintiff Priscilla Torres filed the following complaint against defendant Essex Travel Service:*fn1
1. At all times hereafter mentioned, Defendant is in the business of providing travel services and accommodations for the public.
2. On or about February 1, 1977, Defendant advertised a Unitravel Charters flight to England at a cost of $349.00 per person, departure date May 24, 1977.
3. Plaintiff upon seeing this offer contacted Defendant regarding same.
4. On or about March 1, 1977 Plaintiff, relying upon the representation made by Defendant, paid to the Defendant the sum of $798.00 representing the cost of two fares to England via Unitravel Charters flight.
5. On or about March 1, 1977 plaintiff advised the Defendant of her intention not to participate in the trip and demanded the return of her money.
6. On or about March 30, 1977 Defendant advised the Plaintiff that should she cancel her trip, she would forfeit a portion of her deposit. Accordingly Plaintiff reinstated her travel agreement.
7. On or about April 18, 1977 Plaintiff again advised Defendant of her intention to cancel the flight.
8. On or about June 27, 1977 Defendant advised Plaintiff that she had forfeited her entire deposit and as such was not entitled to a refund of her deposit of $798.
9. This was the first notice Plaintiff had that she would not be entitled to her refund.
WHEREFORE, Plaintiff demands judgment against the Defendant for $798 together with interest and costs of suit.
1. Plaintiff repeats each and every allegation of the First Count as if more fully set forth therein.
2. On or about March 1, 1977 Plaintiff entered into an agreement with Defendant to participate in the Unitravel Charters flight.
3. Plaintiff at that time was required to sign an application form.
4. Subsequent to Plaintiff's cancellation of her flight application, she was advised that a provision of the charter flight application provided for the forfeiture of the full purchase price.
5. Said charter flight application is by its terms and conditions so unconscionable as to be void as against public policy.
WHEREFORE, Plaintiff demands judgment against Defendant for $798 together with interest and costs of suit.
On October 3, 1978 defendant filed a motion for an order "Dismissing the action due to the Court's lack of subject matter jurisdiction in this suit." The basic ground for defendant's motion is that the subject of plaintiff's complaint is properly a matter for the primary jurisdiction of the Civil Aeronautics Board in its review and regulation of filed air carrier tariffs, and therefore the allegations of the complaint should be subjected to the review and analysis of the CAB, at least in the first instance, which they ...