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KLEINBERGER v. ALLEN PRODS. CO.

February 23, 1984

SIDNEY KLEINBERGER AND ARTHUR LEAVER, Plaintiffs,
v.
ALLEN PRODUCTS COMPANY, INC., Defendants



The opinion of the court was delivered by: TROUTMAN

 BENCH OPINION

 BEFORE THE HONORABLE E. MAC TROUTMAN, S.J.

 TRANSCRIPT ORDERED BY: GREGORY M. HARVEY ESQ.

 THE COURT: Good morning.

 At the conclusion of the plaintiffs' case on liability, plaintiffs' Exhibit No. 61 was offered in evidence. As I recall, the Court did not rule upon it. That exhibit is now admitted.

 Also, the plaintiffs' case having been concluded on liability, we go back to the testimony of Mr. Leaver in which he was permitted by the Court to express a lay opinion under Rule 701 as to the copying of the so-called cookie jar. The examination by counsel, in an effort to qualify him to express a lay opinion under Rule 701, suggested that he has repeatedly dealt with ceramics manufacturers in the course of his many years of business experience and dealings; and we, therefore, assumed that he knew sufficient about the actual manufacturing details and mechanics of ceramics that he was qualified to at least express a lay opinion under Rule 701. However, his opinion then ultimately stated was not in fact based upon any knowledge of the mechanics of ceramics manufacturing techniques sufficient, in our opinion, upon which to base the conclusion or opinion that he reached as regards the copying of the cookie jar. It was indeed a sufficient explanation as to why the lawsuit was filed, which was indeed the basis for its offer by plaintiffs' counsel, and to that extent is competent for that purpose, but does not rise in our opinion to the expression of a lay opinion under Rule 701 as to the allegation that the jar was copied. And to that extent, his testimony in the expression of that opinion is stricken.

 Upon conclusion of the plaintiffs' case on liability, we invited oral argument on the motion to dismiss at which time the defendants also filed a motion for a directed verdict. Oral argument was then heard at length on both motions.

 In their motion to dismiss, defendants assert that this court lacks subject matter jurisdiction over the claims at bar. Jurisdiction was conferred on this Court under 28 U.S.C., Section 1338(b), there being a claim in count one of the complaint under the copyright laws. Counts two and three consist of pendent claims under the laws of Pennsylvania which sound in contract and tort respectively. Since the Court has no independent federal jurisdiction of these claims, jurisdiction to hear them exists only pursuant to the doctrine of pendent jurisdiction. Specifically, neither the contract claim nor the tort claim involve a federal question. Therefore, unless plaintiffs can meet the diversity jurisdictional requirements of 28 U.S.C., Section 1332, the Court has no independent jurisdiction over the contract and tort claims.

 In order to establish diversity jurisdiction, plaintiffs must show, inter alia, that, at the time the complaint was filed, they and the defendants were citizens of different states. A corporation is considered to be a citizen of the state in which it was incorporated and the state where it has its principal place of business. 28 U.S.C., Section 1332(c). Since the plaintiffs Kleinberger and Leaver were citizens of Pennsylvania when the complaint was filed and defendants Allen Products Company and its wholly-owned subsidiary Liv-A-Snaps had and still have their principal places of business in Pennsylvania, diversity jurisdiction does not exist.

 At a final pretrial conference, it became apparent that the plaintiffs were not actually pursuing their copyright claim in this proceeding. This, however, was not an absolute certainty. This, however, has been confirmed by the fact that no evidence has been produced with respect to the copyright claim except the introduction of plaintiffs' copyright application and registration certificate which was moved into evidence at the close of the liability case, that is, plaintiffs' Exhibit No. 61. Moreover, plaintiffs' counsel honestly and candidly represented to the Court at the time they moved the admission of the certificate into evidence that it was not offered as evidence in support of the copyright claim; rather, its admission was moved because it tends to support plaintiffs' Pennsylvania common law tort claims in support of the plaintiffs' contention that the defendants illegally appropriated plaintiffs' property, i.e., the novel idea of a three-dimensional dog cookie jar.

 Finally, plaintiffs concede that in this trial no additional evidence will be offered in support of the copyright claim, and no damages are being sought in this proceeding for copyright infringement.

 In the memorandum supporting their motion, defendants contend that the plaintiffs should be deemed to have abandoned their copyright claim. They further argue that the claim has been shown to be entirely lacking in merit. Therefore, it is contended that the court has no subject matter jurisdiction. Defendants further contend that, absent ...


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