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April 21, 1969

Peerless Dental Supply Co., Inc.
Weber Dental Mfg. Co., and Heinsheimer Dental Supplies, Inc.

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

Defendant, Heinsheimer Dental Supplies, Inc. (hereinafter Heinsheimer) has moved that the non-federal causes of action alleging tortious interference with the plaintiff's customer relationships, libel and slander be dismissed for want of jurisdiction. For the reasons set forth hereafter this motion is denied.

 This is an action by Peerless Dental Supply Co., Inc. (hereafter Peerless) charging that the Weber Dental Manufacturing Company (hereafter Weber) conspired with Heinsheimer to restrain trade contrary to Section 1 of the Sherman Antitrust Act, Title 15, U.S.C. § 1, that Weber and Heinsheimer tortiously interfered with Peerless' customer relationships and that Heinsheimer engaged in libel and slander against Peerless.

 The record of the case indicates that the dispute arose when Weber, an Ohio corporation engaged in the manufacture of dental equipment and supplies, refused to make any further sales to, or through, Peerless. For more than twenty years Weber had utilized Peerless as an authorized distributor and independent dealer selling Weber manufactures. Weber discontinued this relationship on or about April 10, 1967. The plaintiff alleges that this was done arbitrarily, without cause and without any previous notice. Weber explains its unilateral discontinuance of the relationship asserting that the plaintiff had violated the terms and conditions of sale under which Weber offered its goods, specifically that Peerless sold Weber products beyond the normal range of Peerless' service facilities.

 The effect of Weber's termination was to bar Peerless from further dealing in Weber's products. It is averred that these can not be obtained from any source other than the manufacturer. Weber not only refused to fill orders placed by Peerless for new equipment, but also refused to sell service parts and to honor the orders it had received from Peerless prior to its suspension of dealings. Instead it notified the dentists in whose name Peerless had submitted orders that such orders would not be shipped through Peerless, but could be had only if delivery was made through the defendant Heinsheimer. Dentists who had traded with Peerless were contacted by Heinsheimer and their orders were solicited. *fn1"

 These actions of Weber and Heinsheimer form the basis of Peerless' allegation that Weber and Heinsheimer engaged in concerted activity to bar Peerless from dealing in Weber's products and to substitute Heinsheimer for Peerless as an authorized Weber distributor without sacrificing the customer relationships which Peerless had established during its years of service in that capacity. In addition they also form the gravamen of the plaintiff's claim under state law that the defendants have tortiously interfered with Peerless' customer relationships.

 Peerless also alleges that Heinsheimer's employees repeatedly informed dentists who had previously been customers of the plaintiff that Peerless was out of business and could no longer serve the dental trade because it had merged with the Ark Dental Supply Co. The plaintiff asserts that as these representations were false, Heinsheimer, acting through its agents and employees, libeled and slandered the plaintiff, in carrying out its role in the conspiracy to eliminate Peerless as a dealer in dental equipment and supplies.

 The motion now before this court is a narrow one attacking only plaintiff's assertion of its non-federal claims against Heinsheimer in this action. The sole reason given in urging such a dismissal is lack of jurisdiction in this court to determine these claims. In support of its motion, Heinsheimer notes that the Commonwealth of Pennsylvania is the principal place of business of both Peerless and Heinsheimer, and further asserts that a Memorandum Opinion in this case dated April 2, 1968, which granted Heinsheimer's motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 determined that the plaintiff had no federal cause of action. Heinsheimer relies on this as establishing the plaintiff does not presently state a federal claim against it.

 After a review of the record we conclude that the Memorandum Opinion of April 2, 1968, 283 F. Supp. 288, does not control the instant motions. The motion for summary judgment decided by that Opinion dealt with the initial complaint. The Court in granting that motion stated:

"Merely the substitution by a manufacturer of one exclusive distributor for a rival distributor even at the instigation of the replacing dealer, is not a combination in restraint of trade under the Sherman Antitrust Act".

 On April 26, 1968, Peerless requested leave to amend its complaint to allege that Weber and Heinsheimer had engaged in a conspiracy in restraint of trade, and that Heinsheimer had libeled and slandered Peerless. Leave was granted to file such a complaint on May 27, 1968, and the Amended Complaint was filed on May 31, 1968. It contained detailed allegations of acts of the manufacturer and its new exclusive distributor tending to show that they had acted in concert to insure that the plaintiff's customers would shift their orders to Heinsheimer.

 With regard to whether a federal cause of action has been stated against Heinsheimer, the present record read in a light most favorable to the plaintiff, may be summarized as follows: Weber and Heinsheimer engaged in a vertical combination or conspiracy to punish Peerless for a putative violation of a geographic restriction as to the customers to whom Peerless could sell Weber dental products. This took the form of a refusal by Weber to deal with Peerless while attempting to service Peerless' customers through a substitute, authorized and independent distributor.

 We can not say at this time that Peerless has failed to state a substantial federal claim of conspiracy to restrain trade. While it long has been held that an individual seller's refusal to sell to a person is not unlawful under Section 1 of the Sherman Act, U.S. v. Colgate & Co., 250 U.S. 300, 63 L. Ed. 992, 39 S. Ct. 465 (1919), where the refusal to sell is accompanied by unlawful conduct or agreement, an individual seller's refusal to deal transgresses the Sherman Act. Times-Picayune Publishing Co. v. U.S., 345 U.S. 594, 625, 97 L. Ed. 1277, 73 S. Ct. 872 (1953). Exclusive dealerships have been upheld although other dealers in the same product were eliminated as a result of the institution of the exclusive dealership, product distribution system. Packard Motor Car Co. Webster Motor Car Co., 100 U.S. App. D.C. 161, 243 F.2d 418 (1957), cert. denied, 355 U.S. 822, 2 L. Ed. 2d 38, 78 S. Ct. 29, rehearing denied, 355 U.S. 900, 2 L. Ed. 2d 197, 78 S. Ct. 259 (1957); Schwing Motor Co. v. Hudson Sales Co., 138 F. Supp. 899 (D.C. Md. 1956), aff'd. 239 F.2d 176 (C.A.4, 1956), cert. denied, 355 U.S. 823, 2 L. Ed. 2d 38, 78 S. Ct. 30 (1957). But a different question is presented where the manufacturer utilizes its position to directly support a new exclusive distributor in capturing the customers previously serviced by the distributor's predecessor.

 The competitive effects of the alleged course of conduct can not be reliably ascertained from the present record. Nor is there sufficient information to determine the relevant market, the availability of competing substitutes for Weber's products, or the manufacturer's position in the market. The record is bare with regard to the effects on competition resulting from the terms and conditions of sale imposed by Weber, and from the geographic restriction placed on the customers to whom an authorized dealer was permitted to sell. On the other hand, the record as a whole does indicate that Weber has engaged in practices which tend to restrict competition in the sale of its products, that it refused to fill any orders received from the plaintiff and that Weber and Heinsheimer worked in tandem to replace Peerless in providing dental equipment and supplies. For purposes ...

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