Wentling v. Popular Science Publishing Company
| Decision Date | 11 September 1959 |
| Docket Number | Civ. A. No. 6300. |
| Citation | 176 F. Supp. 652 |
| Parties | S. A. WENTLING, Plaintiff, v. POPULAR SCIENCE PUBLISHING COMPANY, Inc., National Rifle Association of America, Henry Holt and Company, Inc., Lyman Gun Sight Corporation, and John Unertl, trading as John Unertl Optical Co., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
McNees, Wallace & Nurick, Harrisburg, Pa., for plaintiff.
Nauman, Smith, Shissler & Hall, Harrisburg, Pa., for defendant, Popular Science Pub. Co., Inc.
Whiteford, Hart, Carmody & Wilson, Washington, D. C., Carl F. Chronister, Harrisburg, Pa., for defendant, National Rifle Assn. of America.
Stock & Leader, York, Pa., for defendant, Lyman Gun Sight Corp.
This is a private anti-trust action for treble damages under Sections 1 and 2 of the Sherman Act (15 U.S.C.A. §§ 1 and 2) and Section 12 of the Clayton Act (15 U.S.C.A. § 22).
It appears from the complaint that the plaintiff, S. A. Wentling, is a partnership composed of Stanley A. Wentling and F. Robert Kreider, with its principal place of business at Palmyra, Lebanon County, in the Middle Judicial District of Pennsylvania; that the defendants herein involved are
(a) Popular Science Publishing Company, Inc. (hereinafter referred to as "Popular Science"), a New York corporation with its principal place of business in New York City, also qualified to do business in Pennsylvania, with its principal registered office in Pennsylvania located at 400 Wyoming Avenue, Scranton.
(b) National Rifle Association of America (hereinafter referred to as "National"), a New York corporation with its principal office in Washington, D. C.
(c) Lyman Gun Sight Corporation (hereinafter referred to as "Lyman"), a Connecticut corporation with its principal office and place of business at Middlefield, Connecticut.
Action against John Unertl, trading as John Unertl Optical Co., was dismissed by order of court on stipulation of counsel.
Counsel for plaintiff and Henry Holt and Company, Inc., stipulated that Holt would not be required to answer or further plead until the motions hereinafter referred to were disposed of.
The matter is presently before the Court on
(a) Motion of National to dismiss the action as to it because of improper venue.
(b) Motion of Lyman to dismiss complaint as to it because of improper venue.
(c) Motion of Popular Science to quash the summons and dismiss the complaint as to it because
(1) Improper service.
(2) Because of plaintiff's failure to register under Pennsylvania Fictitious Name Act, 54 P.S.Pa. § 28.1 et seq., plaintiff has no capacity to maintain this action.
(3) Complaint fails to state a cause of action upon which relief may be granted.
(4) Complaint states two separate and distinct causes of action in a single count in disregard of Federal Rules of Civil Procedure, rule 10(b), 28 U.S.C.A.
(5) Complaint fails to state sufficient facts to establish defendant's involvement in any conspiracy as to plaintiff, that plaintiff was injured by defendant, or that any of alleged injuries or damages were caused by defendant.
In the alternative, Popular Science moves for more specific statement.
In the further alternative, Popular Science moves to strike certain alleged scandalous and impertinent statements.
The unverified complaint alleges, inter alia, that plaintiff is a partnership, engaged as a dealer, jobber and distributor of gun scopes, binoculars, guns and various gun accessories, such business being substantially a mail order distribution of such products from its principal place of business located at Palmyra, Lebanon County, Pennsylvania; that beginning about 1950 and continuing through 1956 defendants and others named therein as coconspirators knowingly have entered into and engaged in an unlawful combination and conspiracy, carried out in part within this district, to eliminate and exclude plaintiff and other off-list dealers from engaging in the purchase and sale of scopes, binoculars, and gun accessories for the purpose of stabilizing and maintaining prices of scopes, which combination and conspiracy was in restraint of the therein described trade and commerce among the several states in violation of the Sherman and Clayton Acts.
The applicable venue section of the Clayton Act (15 U.S.C.A. § 22) provides in pertinent part as follows:
"Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found."
As to National Rifle Association of America.
Attached to National's motion to dismiss was the affidavit of Frank C. Daniel, its Secretary, to which is attached copy of charter and amendment thereto.
National was incorporated in 1871 in the State of New York, pursuant to Act of April 11, 1865, entitled "An Act for the Incorporation of Societies or Clubs, for certain Social and recreative purposes." It is a nonprofit, nonbusiness, nonstock organization supported by membership dues. Its original objects or purposes are the "improvement of its members in markmanship, and to promote the introduction of the system of aiming drill and rifle practice as part of the military drill of the National Guard of this and other states, and for those purposes, to provide a suitable range or ranges in the vicinity of the City of New York." The charter was amended in 1956 in order to add the following purposes to those stated originally:
"And to promote social welfare and public safety, law and order, and the national defense; to educate and train citizens of good repute in the safe and efficient handling of small arms, and in the technique of design, production and group instruction; to increase the knowledge of small arms and promote efficiency in the use of such arms on the part of members of law enforcement agencies, of the armed forces, and of citizens who would be subject to service in the event of war; and generally to encourage the lawful membership and use of small arms by citizens of good repute."
Defendant's offices are located in Washington, D. C. It has no offices, employees or agents in Pennsylvania, nor has it ever applied for or been required to apply for a certificate of authority to do business in Pennsylvania, or any other state, territory or district.
As of December 31, 1957, defendant had some 313,967 individual and 7,644 organization members. Each member of defendant, as a privilege of membership, is entitled to receive the official monthly journal of defendant, "The American Rifleman," which is published and printed in the District of Columbia and is mailed monthly to each member from Washington, D. C. For the month ending December 31, 1957, defendant mailed some 23,035 copies of its journal to addressees in Pennsylvania, of this amount 21,246 copies were mailed to members, 119 copies were mailed to nonmembers (consisting mainly of persons who have sent in the full dues but who have not completed all of the requirements for active membership, a few libraries, and several military units), and some 1,670 copies were mailed to approximately 165 sporting goods dealers for an average of approximately 10 copies each. The copies mailed to sporting goods dealers are purchased by them at Washington, D. C., on the basis of written orders received in and accepted in Washington, D. C. These dealers pay defendant 25 cents per copy and are free to dispose of the copies as they see fit. The purpose of these sales is to encourage interest in the defendant on the part of the dealers and their customers.
Plaintiff then filed an affidavit, the sole purpose of which was to place in the record a copy of defendant's magazine for October 1958, which it claims is the primary source of the present controversy.
An analysis of the advertisements disclosed that in the October 1958 issue of the magazine eight classified advertisements (one of which was sent in by plaintiff) and six larger advertisements (one of which was sent in by plaintiff) are from persons in the Middle District of Pennsylvania. The gross revenue from these fourteen advertisements was $865.55 of which $246.30 came from plaintiff.
At the argument on the motion plaintiff stated that for the purposes of the motion it relied upon the facts set forth by defendant in the said affidavits.
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