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HEDLUND MANUFACTURING COMPANY v. WEISER (03/29/88)

decided: March 29, 1988.

HEDLUND MANUFACTURING COMPANY, INC., APPELLANT,
v.
WEISER, STAPLER & SPIVAK AND KARL L. SPIVAK, APPELLEES



Appeal from the Order of Superior court entered on May 5, 1986 at No. 01625 PHL 85, affirming the Order of the Court of Common Pleas of Philadelphia County entered on May 22, 1985 at July Term 1981, No. 3533. Pa. Super. , 512 A.2d 1293 (1986).

COUNSEL

David F. Binder, Philadelphia, for appellant.

James A. Drobile, John E. McKeever, Philadelphia, for appellees.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Flaherty, J., filed a dissenting opinion in which Nix, C.j., joined. Stout, J., did not participate in the consideration or decision of this matter.

Author: Larsen

[ 517 Pa. Page 523]

OPINION OF THE COURT

The issue presented for our consideration by this case is whether a cause of action for negligence and breach of contract with respect to the performance of legal services can be assigned.

In January 1978, Mervin Martin (Martin) engaged the services of appellee, Karl Spivak, to apply for a patent on a manure spreader which Martin had invented and manufactured. Appellee, a seasoned patent attorney, prepared the application in time to file it within one year of the date of

[ 517 Pa. Page 524]

    first sale, as required by statute. 35 U.S.C.A. § 102(b).*fn1 The application was not filed, however, until August 1979, approximately two years after the date of first sale of the manure spreader.

Appellant, Hedlund Manufacturing Company, Inc., purchased Martin's business in December 1980, including all the right to use and license the then pending patent on the manure spreader along with other patents, trademarks and patents pending owned by Martin. In February 1981, the U.S. Patent Office issued a notice of allowance of patent for the manure spreader -- an indication that the patent would be issued upon payment of the required fee. 35 U.S.C.A. § 151. Subsequently, appellant discovered that the patent application had been filed late, and, as required by regulation, so notified the U.S. Patent Office. 37 C.F.R. § 1.56(a). In May 1981, Martin assigned the entire right, title and interest in and to the patent application for the manure spreader to appellant, and in July 1981, Martin assigned all rights and causes of action against appellees arising out of the mishandling of the patent application for the manure spreader to appellant. Appellant immediately filed a complaint in trespass and assumpsit, alleging negligence and breach of contract, in the Court of Common Pleas of Philadelphia County. In September 1981, the Commissioner of Patents and Trademarks disallowed the patent on the manure spreader.

Pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure, appellees filed a motion for summary judgment on the ground that appellant lacked standing to bring this action against appellees. The trial court granted appellees' motion for summary judgment and dismissed appellant's complaint with prejudice, finding a ...


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