421 F.Supp. 116 (W.D.Pa. 1976), Civ. A. 76-292, DiCesare-Engler Productions, Inc. v. Mainman Ltd.

Docket Nº:Civ. A. 76-292
Citation:421 F.Supp. 116
Party Name:DiCesare-Engler Productions, Inc. v. Mainman Ltd.
Case Date:October 19, 1976
Court:United States District Courts, 3th Circuit

Page 116

421 F.Supp. 116 (W.D.Pa. 1976)

DiCESARE-ENGLER PRODUCTIONS, INC., a corporation, Plaintiff,


MAINMAN LTD., a corporation and David Bowie, an Individual, Defendants.

Civ. A. No. 76-292.

United States District Court, D. Pennsylvania.

Oct. 19, 1976

Page 117

[Copyrighted Material Omitted]

Page 118

David Abrams, Monroeville, Pa., for plaintiff.

Stanley M. Stein, Fieldstein, Bloom, Grinberg, Stein & McKee, Pittsburgh, Pa., for defendants.


COHILL, District Judge.

The facts alleged in the complaint of plaintiff, DiCesare-Engler Productions, Inc., will be taken as true for the purposes of the disposition of these motions.

Plaintiff is a corporation, doing business in Pennsylvania, and is in the business of promoting music concerts. Defendant, Mainman Ltd. ("Mainman"), is a corporation doing business in Pennsylvania. Defendant, David Bowie ("Bowie"), is a singer and a non-resident of Pennsylvania. Mainman acted as a booking agent in the situation under consideration here.

On May 30, 1974, plaintiff entered into an oral agreement with Mainman whereby Mainman was to furnish the services of Bowie for a concert to be held on June 25, 1974 in the Cincinnati Gardens, Cincinnati, Ohio. Plaintiff had executed a written lease of the Gardens for the day of the concert, and Mainman later cancelled the concert. Plaintiff seeks damages exceeding $10,000 resulting from the cancellation.

The case is before the court on the motions of both defendants for a preliminary injunction to enjoin plaintiff and plaintiff's counsel from proceeding with a related action against the defendants in the Court of Common Pleas of Allegheny County, Pennsylvania. We are also requested to strike off a default judgment entered against Bowie in this court and to require counsel for plaintiff to pay Bowie counsel fees pursuant to Title 28 U.S.C. s 1927.

Procedural History

In July, 1974, plaintiff filed suit against Mainman and Bowie in the Court of Common Pleas of Allegheny County, Pennsylvania, for breach of the concert contract and for tortious interference with a contractual relationship, namely the lease of the Gardens. The action in the Common Pleas Court (hereinafter referred to as Suit # 1) was begun by a Praecipe for a Writ of Foreign Attachment. On July 5, 1974, the defendants removed the case to this court at Civil Action No. 74-657. In the intervening period, the Court of Appeals for the Third Circuit in Jonnet v. Dollar Savings Bank, 530 F.2d 1123 (1976), held the Pennsylvania foreign attachment procedure to be unconstitutional. Since plaintiff had obtained service of process via that procedure, defendants' motion to dismiss Suit # 1 on the basis of Jonnet was granted by Hon. Louis Rosenberg of this court on March 11, 1976.

Prior to the court's disposition of the motion to dismiss, and apparently as a hedge against the possibility of Suit # 1 being dismissed because of the Jonnet case, plaintiff filed a second suit (Suit # 2) in the Court of Common Pleas of Allegheny County, alleging the same cause of action against the defendants as was alleged in Suit # 1. Service of process in Suit # 2 was attempted to be made on the defendants pursuant to the Pa.R.Civ.P. 2180(c) (service upon corporation) and 2079 (service upon individual) which...

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