Goldlawr, Incorporated v. Shubert
| Decision Date | 25 February 1960 |
| Docket Number | 12975.,No. 12974,12974 |
| Citation | 276 F.2d 614 |
| Parties | GOLDLAWR, INCORPORATED, Appellee, v. Jacob J. SHUBERT, Lawrence Shubert Lawrence, John Shubert, Select Theatres Corporation, Modern Theatre Corporation and Barrymore Theatre Corporation, Appellants, and L. A. B. Amusement Corporation and William Goldman Theatres, Inc. and William Goldman, Third Party Defendants. GOLDLAWR, INCORPORATED, Appellee, v. Jacob J. SHUBERT, Lawrence Shubert Lawrence, Select Theatres Corporation, Appellants, and L. A. B. Amusement Corporation and William Goldman Theatres, Inc. and William Goldman, Third Party Defendants. |
| Court | U.S. Court of Appeals — Third Circuit |
C. Russell Phillips, Philadelphia, Pa. (C. Brewster Rhoads, Philadelphia, Pa., on the brief), for appellants.
Harold E. Kohn, Philadelphia, Pa. (Dolores Korman, Dilworth, Paxson, Kalish, Kohn & Dilks, Philadelphia, Pa., on the brief), for appellees.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
In these anti-trust actions, differing only as to the number of defendants, the trial court granted plaintiff's motion to vacate its ex parte order permitting joinder of third party defendants and dismissing the third party complaint. Finding "no just reason for delay" the court directed entry of judgment in favor of third party defendants, William Goldman and William Goldman Theatres, Inc. in accordance with Rule 54(b) F.R. Civ.P. upon the third party complaint. Defendants appealed from the resultant judgment. Thereafter appellees moved to dismiss the appeal.
The complaints in these causes allege that the defendants monopolize the operation of theatres in the City of Philadelphia and because of their domination, control and monopoly of booking of legitimate attractions both in New York and Philadelphia and elsewhere throughout the United States and because of their control over the production of legitimate attractions are able to and do control and monopolize the operation of theatres in the City of Philadelphia, the booking of legitimate attractions therein, the presentation of such attractions in said theatres and have done so since prior to September 1, 1950. It is alleged that defendants since said date have refused to book attractions into plaintiff's Erlanger Theatre in Philadelphia, have exerted pressure on producers to prevent and restrain them from presenting attractions at that theatre, that defendants are now so engaged and have been since prior to September 1950, that they have conspired to restrain the sale of theatre tickets and charged higher prices therefor because of their said monopoly, that by reason of said monopoly defendants have stifled initiative and development among producers and in the theatre and denied attractions to the public.
The third party complaint states that William Goldman is the president, the owner of the capital stock and in control of William Goldman Theatres, Inc.; that from 1940 to 1950 Goldman Theatres, Inc. was lessee of the Erlanger Theatre, Philadelphia; that it sued a large number of motion picture producers to permit it to show motion pictures, particularly first run pictures, in the Erlanger Theatre and won the suit; that it surrendered its interest in the Erlanger and plaintiff became lessee thereof in 1950; that at that time Goldman owned 50% of plaintiff's stock and since June 1956 has been the owner of all its stock; that Goldman through Goldman Theatres, Inc. and plaintiff abandoned all effort to secure motion pictures for the Erlanger Theatre; that this took place in order that Goldman might secure motion pictures for his other theatres without competition from the Erlanger; that Goldman is widely experienced in the distribution and exhibition of motion pictures and this third party plaintiff (apparently plaintiff Goldlawr is meant) is not. Then the third party complaint in paragraph 14 states:
"The actions of William Goldman Theatres, Inc., and of William Goldman amounted to and were a conspiracy against the public interest to injure the plaintiff in its operation of the Erlanger Theatre contrary to the provisions of the Anti-Trust Laws of the United States, and by reason thereof the said William Goldman Theatres, Inc., and William Goldman are jointly and severally liable to the Plaintiff for treble damages in accordance with the provisions of Sections 4, 12 and 16 of the Act of Congress of October 15, 1914, 15 U.S.C. 15, 22 and 26, commonly known as the Clayton Act, and in accordance with the provisions of Sections 1 and 2 of the Act of Congress of July 2, 1890, 15 U.S.C. Sections 1 and 2, commonly known as the Sherman Anti-Trust Act."
Appellants' main contention on oral argument was that under Pennsylvania law the claim urged in the third party complaint was a joint tort with that alleged against the defendants because it resulted in the same injury which, in appellants' brief, is stated to be "keeping performances out of the Erlanger during the period involved in the principal action" and for which it is claimed contribution should be had because it is for the same injury as sued on in the prime complaint.
This point was not made to the district court until after the latter had filed its opinion and dismissed the third party complaint. It was then asserted in the petition for rehearing 1 The petition was denied without comment.
As above set out in the third party complaint there are certain factual allegations concerning William Goldman Theatres, Inc. and William Goldman. From these the conclusion is drawn that "The actions of William Goldman Theatres, Inc. and of William Goldman amounted to and were a conspiracy against the public interest to injure the Plaintiff in its operation of the Erlanger Theatre contrary to the provisions of the Anti-Trust Laws of the United States, * * *" etc. Nowhere in that third party complaint is a local tort claim even hinted at. The entire cause is based on the Federal Anti-Trust Laws. The treble damages claimed were specifically sought on that ground, the only possible basis for that type of recovery.
Assuming Goldman's alleged conduct was tortious and that it or part of it may have been concurrent with the alleged conduct of the defendants, the two were completely different of themselves and from each other; their objectives and their results were different. They both are said to have caused damage to the plaintiff but this of itself does not make them joint nor does it call for contribution from the third party defendants to the defendants.
The defendants are sued as theatre operators presenting legitimate attractions and controlling the legitimate theatre business of Philadelphia. They are charged with preventing plaintiff's...
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