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ARK DENTAL SUPPLY CO. v. CAVITRON CORP.

March 10, 1971

Ark Dental Supply Co., is a copartnership consisting of Archie Sherman and Robert Sherman
v.
Cavitron Corp., Clev-Dent and Coles Electronic Corp.


Luongo, D.J.


The opinion of the court was delivered by: LUONGO

In this suit charging violations of Section 1 of the Sherman Anti-Trust Act, 15 U.S.C. ยง 1, plaintiff *fn1" has filed a motion for summary judgment in its favor, and defendants have filed a motion for judgment on the pleadings, or in the alternative, for summary judgment in their favor. The motions are before the court for disposition on the pleadings and on affidavits of Robert E. Navin, president of defendant Cavitron Corporation (Cavitron), and Harry Leiter, former president of defendant Coles Electronic Corporation (Coles). Plaintiff has filed no countervailing affidavits.

 Plaintiff is Ark Dental Supply Company, a partnership which deals in dental equipment. Over a period of several years, until sometime in 1970, plaintiff purchased *fn2" from Coles, which manufactured it, a product called "Radiosurg", (hereinafter referred to as the product), for sale to and use by dentists for electrosurgery. In November 1969, Cavitron acquired the capital stock of Coles. Thereafter responsibility for the manufacture and marketing of the product was transferred to Cavitron, and as part of the plan to liquidate Coles, the Coles manufacturing facility in Philadelphia was closed and its inventory of the product was sold to Cavitron without restriction as to manner of marketing it. Marketing of Cavitron's products is and has been for many years accomplished through Clev-Dent, which is an integral division of Cavitron, not a separate entity. Clev-Dent's method of sale and service is through 350 dealers, at least five of whom are located in or regularly sell in the Philadelphia area. Clev-Dent has no contracts with its dealers and has neither imposed nor attempted to impose on them any territorial or other restrictions on their sales of Clev-Dent products.

 At least three other manufacturers, Cameron-Miller, Parkell, and Ellman sell, for use in electrosurgery, dental units which perform the same function and compete with the product marketed by Clev-Dent.

 Sometime during 1970 plaintiff apparently placed an order for certain of the Coles items and received in reply the following letter *fn3" (Exhibit A -- Complaint):

 
"Clev-Dent division of Cavitron Corporation
 
3307 Scranton Road, SW
 
Cleveland, Ohio 44109
 
July 16, 1970
 
Ark Dental Supply Co.
 
544 Commerce Drive
 
Yeadon, Pa. 19050
 
Gentlemen:
 
We are returning the enclosed order for Coles items which you ...

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