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STRUCTURE PROBE, INC. v. FRANKLIN INST.

May 1, 1978

STRUCTURE PROBE, INC.
v.
THE FRANKLIN INSTITUTE



The opinion of the court was delivered by: FOGEL

 FOGEL, J.

 Plaintiff, a Pennsylvania corporation in the business of selling services on a Scanning Electron Microscope, (SEM), has brought this action against defendant, The Franklin Institute, a non-profit Pennsylvania corporation which also sells such services to the public through its research arm.

 The complaint consists of two counts: Count I alleges that defendant monopolized and attempted to monopolize a local market for SEM services in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2; Count II is brought under the pendant jurisdiction of this Court, and avers that defendant's engagement in this business is ultra vires both under its charter, and the Pennsylvania Non Profit Corporation Law, 15 P.S. § 117. *fn1" Based upon the extensive record, requests for findings of fact, conclusions of law, comprehensive briefing and oral arguments, we find for defendant on the merits on both counts, because of plaintiff's failure to meet its burden of proof.

 Our findings of fact, discussions and conclusions of law follow:

 FINDINGS OF FACT:

 I. PARTIES, PERTINENT PROVISIONS OF THE PENNSYLVANIA NON PROFIT CORPORATION LAW AND OF PLAINTIFF'S ARTICLES OF INCORPORATION.

 1. Plaintiff, Structure Probe, Inc., (SP), is a business corporation organized and existing under Delaware law. Plaintiff's principal place of business is in West Chester, Pennsylvania, within the Eastern District of Pennsylvania. (Agreed Fact No. 1)

 2. Dr. Charles A. Garber is President of plaintiff and the owner of 100% of its outstanding stock. (Agreed Fact No. 48)

 3. Dr. Garber is also president of and owns all of the stock of a second corporation by the same name, which was organized in 1973 and incorporated under the laws of the State of New Jersey. The principal place of business of the New Jersey corporation (hereinafter referred to either as "Structure Probe-New Jersey" or "SPNJ") is in Metuchen, New Jersey, near New York City. Structure Probe-New Jersey is not a party to this action and no claim is made on its behalf. (Agreed Facts No. 48, 49)

 4. Defendant, The Franklin Institute, (Institute or Franklin), is a non-profit corporation organized and existing under the Pennsylvania Non Profit Corporation Law of 1933, P.L. 289. Defendant's principal place of business is in Philadelphia, Pennsylvania, within the Eastern District of Pennsylvania. (Agreed Fact No. 2)

 5. The Franklin Institute operates a Museum and Planetarium open to the public, and engages in a wide variety of scientific and research activities through the Franklin Institute Research Laboratories, (FIRL), and the Bartol Laboratories, both of which are unincorporated divisions of Franklin. (Agreed Fact No. 10)

 6. Defendant was originally incorporated under the Act of March 30, 1824, P.L. 206; Section 2 of that Act states the following:

 
That the objects of the said corporation shall be the promotion and encouragement of manufactures, and the mechanic and useful arts, by the establishment of popular lectures on the sciences, connected with them; by the formation of a cabinet of models and minerals, and a library; by offering premiums on all objects deemed worthy of encouragement; by examining ...

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