Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2001

Southco Inc v. Kanebridge Corp
Precedential or Non-Precedential:

Docket 00-1102




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Recommended Citation
"Southco Inc v. Kanebridge Corp" (2001). 2001 Decisions. Paper 162.
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Filed July 20, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1102

SOUTHCO, INC.

v.

KANEBRIDGE CORPORATION,

       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 99-cv-04337)
District Court Judge: Norma L. Shapiro

Argued: September 13, 2000

Before: SLOVITER, SCIRICA and ALITO, Circuit   Judges

(Filed July 20, 2001)

       STEVEN B. POKOTILOW (Argued)
       IAN G. DIBERNARDO
       KIERSTEN M. SKOG
       Stroock, Stroock & Lavan, LLP
       180 Maiden Lane
       New York, NY 10038

       STANLEY H. COHEN
       Caesar, Rivise, Bernstein, Cohen &
       Pokotilow, Ltd.
       1635 Market Street
       Seven Penn Center, 12th Floor
       Philadelphia, PA 19103

       Counsel for Appellant
JOEL I. KLEIN
 Assistant Attorney General
A. DOUGLAS MELAMED
 Deputy Assistant Attorney General
CATHERINE G. O'SULLIVAN
DAVID SEIDMAN (Argued)
U.S. Department of Justice
601 D Street, N.W.
Washington, DC 20530

ALBIN F. DROST
 Acting Solicitor
JUSTIN HUGHES
JOHN M. WHEALAN
United States Patent & Trademark
 Office
Arlington, VA 22215

DAVID O. CARSON
JESSE M. FEDER
STEVEN M. TEPP
United States Copyright Office
Washington, DC 20540

Counsel for Amicus Curiae in Support
of Appellants

MALLA POLLACK
Northern Illinois University College
of Law
Normal Road
DeKalb, IL 60115

Counsel for Amicus Curiae in Support
of Appellants

JAMES C. McCONNON (Argued)
ALEX R. SLUZAS
Paul & Paul
2000 Market Street
Suite 2900
Philadelphia, PA 19103

Counsel for Appellees

                        2
OPINION OF THE COURT

ALITO, Circuit Judge:

Kanebridge Corporation   ("Kanebridge") appeals the
District Court's order   granting a preliminary injunction in
favor of Southco, Inc.   ("Southco"). Because wefind that
Southco's part numbers   are not entitled to copyright
protection, we reverse   the District Court's order.

I.

Southco manufactures various types of captive screw
fasteners, devices used in assembling the panels of items
such as computers and telecommunications equipment. 1
Important characteristics that distinguish among the huge
variety of fasteners include their length, thread size, finish,
recess type, installation type, screw diameter, and
composition. To assist its employees and customers in
identifying and distinguishing among its products, Southco
developed a numbering system to serve as a shorthand
description of the relevant characteristics of each fastener.
Under this system, each fastener is assigned a unique nine-
digit number, with each digit describing a specific physical
parameter of the fastener.2 Southco includes these numbers
_________________________________________________________________

1. Southco describes these fasteners as follows:"Captive screws are used
to fasten panels together. Each captive screw comprises a screw, a
ferrule and a knob. A set of screws will be mounted in one panel by
means of the ferrule and the other panel contains an internally threaded
insert which receives the screw." Appellee's Brief at 6-7.

2. Southco's brief illustrated how its numbering system works by
including the following description of part numbers 47-10-202-10 and
47-11-202-10:

       47-10-202-10

       The first two digits ("47") refer to Southco's line of captive
fasteners,
       as opposed to other Southco product lines. The next two digits
("10")
       refer to an English thread with either a flare orfloating style
ferrule
       with a specific screw projection. In particular, the specific
digits
       ("10") indicate that the screw is so short that it does not project

                                 3
in various Handbooks it publishes each year.3 Anyone who
is familiar with Southco's system should be able to
determine all of the relevant features of a particular screw
from its part number alone. This numbering system has
become an industry standard, and the part numbers
produced by the system are the subject of this copyright
infringement suit.

Matdan America ("Matdan") is a competing manufacturer
of panel fasteners. Kanebridge, known as Matdan's"master
distributor," sells Matdan fasteners to other distributors,
often at prices lower than Southco's. Because Southco's
numbering system has become an industry standard, many
_________________________________________________________________

        outside the ferrule when the installed captive fastener is in the
        unfastened state. In the next series of digits ("202"), the first
digit
        ("2") refers to the specific thread size ("632"). The next digit
("0")
        indicates a slotted recess on top of the screw. The next digit
("2")
        refers to the grip length of that flange, where the parts attach to
the
        panel. In this case, the "2" indicates that the flange grip length
is
        appropriate for panel with a thickness from 0.058 inches and 0.125
        inches. In the last two digits, the first digit ("1") indicates the
type
        of material that the ferrule is made out of (aluminum) and that the
        knob has a natural finish. The last digit ("0") indicates whether
the
        knob is knurled or smooth. The "0" indicates that the knob is
        knurled.

        47-11-202-10

        This number signifies a captive fastener that is identical, except
that
        the second pair of digits ("11") refer to an English thread with a
flare
       or floating style ferrule with a different screw projection. In
this case
       the screw is long enough to project from the ferrule even when the
       captive fastener is unfastened.

3. Southco obtained copyright registrations for these Handbooks, but the
registrations do not refer to the part numbers. In addition to the part
numbers, the Handbooks contain, among other things, short
descriptions and drawings of the various products. The parties do not
appear to dispute that the Handbooks are entitled to copyright
protection, and it is well-established that compilations can be
copyrighted, assuming that the compiler "make[s] the selection or
arrangement independently (i.e. without copying that selection or
arrangement from another work), and that it display some minimal level
of creativity." Feist Publications, Inc. v. Rural Tel. Serv. Co., 

,
358 (1991).

                               4
of Kanebridge's customers often specify suitable fasteners
by reference to Southco's part numbers. Recognizing this
fact, Kanebridge began using Southco's part numbers in
comparison charts that were included in advertisements
and other literature that it provides to customers. These
charts display Kanebridge's and Southco's numbers for
equivalent fasteners in adjacent columns, making it clear
that these parts are interchangeable.4 According to
Kanebridge, the "ability to cross-reference Southco panel
fasteners in an honest, accurate and comparative manner"
is necessary to make competition viable. Appellant's Brief at
7. Without this ability, customers would lose the
opportunity to obtain lower-cost alternative fasteners. 

this action against Kanebridge
asserting, among other claims, a claim for copyright
infringement. The parties agreed to a temporary restraining
order ("TRO") containing various restrictions on
Kanebridge's use of Southco's part numbers. They also
agreed to enter into a preliminary injunction on consent
but were unable to agree on its scope. Southco then moved
for a preliminary injunction of the same scope as the TRO,
and after a hearing, the District Court issued an order
granting Southco's motion. Kanebridge is appealing this
order.

II.

The decision whether to enter a preliminary injunction is
committed to the sound discretion of the trial court and will
be reversed "only if the court abused its discretion,
committed an obvious error in applying the law, or made a
serious mistake in considering the proof." Loretangeli v.
Critelli, 

, 193 (3d Cir. 1988); see also Times
Mirror Magazines, Inc. v. Las Vegas Sporting News, L.L.C.,

, 160-61 (3d Cir. 2000). Although the scope of
our review is limited, "any determination that is a
prerequisite to the issuance of an injunction . . . is reviewed
according to the standard applicable to that particular
_________________________________________________________________

4. Southco claims that Matdan's fasteners, although interchangeable
with its own, are of inferior quality. Whether or not this is true,
however,
is irrelevant to the present appeal.

                               5
determination." American Tel. and Tel. Co. v. Winback and
Conserve Program, Inc., 

, 1427 (3d Cir. 1994)
(quoting John F. Harkins Co., Inc. v. Waldinger Corp., 

, 658 (3d Cir. 1986)). Therefore, "we exercise
plenary review over the District Court's conclusions of law
and its application of the law to the facts." Duraco Products,
Inc. v. Joy Plastic Enterprises, Ltd., 

, 1438 (3d
Cir. 1994); see also Marco v. Accent Publ'g Co. , 

, 1548 (3d Cir. 1992).

III.

Kanebridge challenges the District Court's grant of a
preliminary injunction on two separate grounds. First, it
argues that Southco's part numbers fail to satisfy the
requirements for copyright protection. Kanebridge gives
three reasons to support this argument: the part numbers'
lack of sufficient originality, the scenes a faire doctrine, and
the merger doctrine. Second, Kanebridge argues that, even
if the part numbers are protected, its use of the numbers
satisfies the requirements for fair use. Because we conclude
that these numbers fail to satisfy the originality
requirement, we do not reach any of the other arguments.

A.

Copyright protection is available for "original works of
authorship fixed in any tangible medium of expression." 17
U.S.C. S 102(a) (emphasis added). The Supreme Court has
held that, in order to satisfy the originality requirement, a
work must have been "independently created by the author"
and must possess "at least some minimal degree of
creativity." Feist Publications, Inc. v. Rural Tel. Serv. Co.,
Inc., 

, 345 (1991). Although the Court has
noted that this is not a "stringent" standard, it has also
held that there is "a narrow category of works in which the
creative spark is utterly lacking or so trivial as to be
virtually nonexistent." 

We conclude that
Southco's part numbers fit within this "narrow category" of
works that are incapable of sustaining a valid copyright. 

outset, we must determine exactly what work
Southco claims is entitled to copyright protection. There are

                               6
three possibilities: (1) the numbering system, (2) the actual
part numbers, and (3) both the system and the numbers.
The District Court apparently did not distinguish among
these three options. Although it framed the issue as
"whether Kanebridge may use Southco numbers in
comparison charts," the Court's analysis repeatedly referred
to the "Numbering System." Southco, Inc. v. Kanebridge
Corp., No. CIV. A. 99-4337, 

, at *2 (E.D.Pa.
Jan. 12, 2000) (emphasis added). For example, when
discussing the originality requirement, the Court stated:
"The Numbering System is sufficiently original for copyright
protection." 

(emphasis added). For purposes of
copyright law, however, Southco's numbering system itself
and the actual numbers produced by the system are two
very different works.5

Southco has not alleged that Kanebridge improperly used
its numbering system. Instead, it alleges that Kanebridge
infringed its copyright in the actual part numbers. This
case does not involve Kanebridge's creation of a new
fastener and its use of the Southco numbering system to
assign that part a part number. That hypothetical situation
would raise issues not present in this appeal.6 We believe
_________________________________________________________________

5. As the amicus brief submitted on behalf of the United States Patent &
Trademark Office aptly notes:

       The district's court's originality analysis addressed the
originality
       not of the 51 nine-digit numbers Southco alleged Kanebridge to
       have copied, but rather of the "Numbering System." . . . The court
       found that system to be original and protected by Southco's
       registered copyrights. Whatever the merits of thosefindings, they
do
       not compel, nor even suggest, a conclusion that the parts numbers
       are protected by copyright.

Amicus Brief of the United States at 14.

6. For example, the United States raises the question whether the system
amounts to a set of abstract rules that is ineligible for copyright
protection under 17 U.S.C. 102(b). Amicus Br. For the United States at
14 n.12. We express no opinion on this issue. However, we do point out
that, in response to questions at oral argument, Southco's attorney
conceded that the system itself is not eligible for copyright protection.
This issue does not affect the outcome of this case.

                               7
that, given Southco's allegations, the proper focus of our
analysis must be on the actual part numbers.7

B.

To satisfy the originality requirement, Southco's part
numbers must "display some minimal level of creativity."
See 

. Although the originality
requirement is not demanding, it nevertheless is a
prerequisite for copyright protection since copyright
protection is available only for "original works of
authorship." 17 U.S.C. S 102(a) (emphasis added); see also

("The sine qua non of copyright is
originality."). Indeed, "[o]riginality is a constitutional
requirement." 

. We conclude that the
creative spark is utterly lacking in Southco's part numbers
and that these numbers are examples of works that fall
short of the minimal level of creativity required for
copyright protection.

Although the District Court reached the opposite
conclusion, its own words demonstrate that Southco's part
numbers are completely devoid of originality and instead
result from the mechanical application of the numbering
system. As the District Court stated,

       Southco uses product numbers that convey specific
       properties of the products manufactured. The numbers
       are not assigned at random or in sequence; they are
       assigned based on the properties of the parts. The
       Numbering System is a complex code expressing
       numerous detailed features of Southco hardware
_________________________________________________________________

7. An analogy to patent law may be helpful to illustrate the importance
of this distinction. If someone obtains a process patent for a machine
that manufactures widgets, that person has a monopoly in the rights to
the machine. However, unless the widgets themselves also satisfy the
requirements for patent protection and the application contains claims
related to the widgets, that person will have no patent rights in the
widgets and will not succeed in an infringement suit against someone
who produces identical widgets through a process that does not infringe
the patent for the machine. His/her patent rights will be limited to the
machine that produces the widgets. See United States v.
Studiengesellschaft Kohle, 

, 1127-28 (D.C. Cir. 1981).

                                8
       products; each part number tells the story of a part's
       size, finish, and utility. Southco does not make random
       and arbitrary use of numbers; Southco assigns
       numbers based on a system designed over twenty years
       ago and refined ever since.

Southco, 

, at *4. Southco also acknowledges
this fact in its brief by stating that its system"is made up
of nine-digit part numbers in which the first two numbers
denote the type of fastener and the remaining digits denote
functional characteristics of each type, such as installation
type, thread size, recess type, grip length, type of material,
and knob finish." Appellee's Brief at 7. Southco also refers
to its system as a "code which communicates details of the
hardware." 

devoted time, effort, and thought
to the creation of the numbering system, but Southco's
system makes it impossible for the numbers themselves to
be original. Under that system, there is simply no room for
creativity when assigning a number to a new panel
fastener. The part has certain relevant characteristics, and
the numbering system specifies certain numbers for each of
those characteristics. As a result, there is only one possible
part number for any new panel fastener that Southco
creates. This number results from the mechanical
application of the system, not creative thought. If Southco
were to develop a new fastener and for some reason decide
to exercise creativity when assigning it a number, the
resulting part number would fail to accomplish its purpose.
Regardless of how small the change is, customers could not
effectively identify the relevant characteristics of the panel
fastener by simply looking at its part number.

C.

The District Court devoted significant attention to two
decisions from other circuits, and the parties' briefs take
the same approach. These decisions, Toro Co. v. R&R
Products Co., 

(8th Cir. 1986), and Mitel, Inc.
v. Iqtel, Inc., 

(10th Cir. 1997), are of course
not binding on this Court, and neither directly addresses
the precise ground on which our current decision is based.

                               9
In Toro, the Eighth Circuit held that a lawn care machine
manufacturer's part numbering system lacked sufficient
originality for copyright protection. See Toro , 787 F.2d at
1213. The manufacturer arbitrarily assigned a random
sequential number to each new part it created and offered
no evidence that the numbers used were intended to
encode any information. See 

stated: "The
random and arbitrary use of numbers in the public domain
does not evince enough originality to distinguish
authorship." 

however, the Court went on to
say:

       This is not to say that all   parts numbering systems are
       not copyrightable. A system   that uses symbols in some
       sort of meaningful pattern,   something by which one
       could distinguish effort or   content, would be an
       original work.

and the District Court have seized on this
dicta and argued that Toro supports a finding of
copyrightability for Southco's part numbers since those
numbers are not randomly assigned.

We agree with Kanebridge that reliance on Toro is
unfounded. For one thing, the Toro Court, in analyzing the
issue of originality, invoked the "sweat of the brow" theory,
under which courts considered the amount of effort
expended by an "author" in assessing whether a work was
original. 

(relying on Hutchinson Tel.
Co. v. Frontier Directory Co., 

(8th Cir. 1985)).
The Toro Court relied, at least in part, on this theory in
making the statement on which Southco and the District
Court have relied. 

("A system that
uses symbols in some sort of meaningful pattern,
something by which one could distinguish effort or content,
would be an original work.")(emphasis added). However, the
Supreme Court has clearly rejected the "sweat of the brow"
theory. See 

("Without a doubt, the
`sweat of the brow' doctrine flouted basic copyright
principles."). In addition, Toro stated only that a parts
numbering "system" that used symbols in a meaningful
pattern would be 

. Here, as we
have emphasized, the issue is not the originality of
Southco's system but of its parts numbers themselves. For

                               10
these reasons, we do not believe that Toro supports a
finding of copyrightability in this case.

The Tenth Circuit's decision in Mitel likewise does not
support Southco's argument. The Mitel Court addressed the
issue of copyrightability of four-digit computer codes used
to operate telecommunications equipment.8 The Court first
held that the four digits making up these codes themselves
-- the "registers" (the first three digits) and "descriptions"
(the fourth digit) - were not original and therefore not
copyrightable. These numbers were arbitrarily chosen and
largely sequential, and the Court concluded that" `the
random and arbitrary use of numbers in the public domain
does not evince enough originality to distinguish
authorship.' 

(quoting District Court).
However, the Court reached a different conclusion with
respect to the "values" assigned to the "descriptions." 

One such "value" that the Court described concerned
the appropriate response "upon the failure of a call sent
over a particular telephone network route." 

values for th[is] function include[d] several
combinations of redialing over another route or
reattempting the call over the same route again before
trying another route." 

Circuit held that Mitel's
values reveal `the existence of . . . intellectual production,
of thought, and conception.' " 

499 U.S. at
362). The Court stated that Mitel employees satisfied the
`minimal degree of creativity' requirement by"devis[ing]
_________________________________________________________________

8. Kanebridge accurately and succinctly described the command codes
that were at issue in Mitel as follows:

       The four-digit codes included a "register", consisting of the first
       three digits, and a "description", consisting of the last digit.
Each
       three-digit register identified a particular function. Particular
       numbers in the description digit corresponded to certain "values"
       pertaining to the function identified by the register. For example,
       register "X27" identified the function "Time to Auto Answer",
wherein
       X indicated the number of the telephone line for which the function
       would be activated. With regard to the description, a "4" stood for
       the value of "40 seconds" for the "Time to Auto Answer" function.
       Other values for this function denoted other time durations. For
       other functions, values represented various baud rates.

Kanebridge's Brief at 31-32.

                               11
appropriate values for the wide variety of individual
functions." 

finding of originality, the court
denied copyright protection to these values under the
scenes a faire doctrine.

The District Court, without any explanation, declared
that "Southco's Numbering System is original under this
portion of the Mitel analysis." This reliance on Mitel,
however, was misplaced.9 We agree with Kanebridge that
the values in Mitel are not analogous to the part numbers
in this case. Instead, they are more closely analogous to the
physical specifications of the parts. For example, the
number "4" as a description in one of the codes in Mitel
stood for the value of "40 seconds." This is simply an
operational parameter. The number "4" just as easily could
have stood for values of "4 seconds," "44 seconds," "83
seconds," or any other amount of time. It was in making
this decision that the value should be "40 seconds" that the
Mitel employees exercised creativity. At best, this would be
analogous to Southco's choosing the length to make a
particular fastener. For example, it would be analogous to
Southco's deciding between making a particular fastener
200 millimeters or 300 millimeters in length. This is not the
same as deciding that the number "2" in its numbering
system should represent a fastener that is 632 millimeters.
For this reason, we do not believe that Mitel supports a
finding of copyrightability in this case.

Finally, we believe that it is important to address a third
case that the District Court and the parties have not
discussed. In American Dental Association v. Delta Dental
Plans Association, 

(7th Cir. 1997), the
Seventh Circuit held that a "taxonomy" used by the
American Dental Association ("ADA") was copyrightable.
This taxonomy classified various dental procedures into
groups and assigned to each procedure a five-digit number,
_________________________________________________________________

9. In its brief, Southco stated, "The values in Mitel were found to be
copyrightable however, even though single digits, because they were
established according to a system." Appellee's Brief at 19-20. The Mitel
Court reached no such holding and did not refer to the values being
established according to a system when concluding that they satisfied
the originality requirement. Therefore, we disagree with Southco's
characterization of the court's holding.

                               12
a short description, and a long description.10 See 

This taxonomy was used to create the "Code on Dental
Procedures and Nomenclature," a compilation of all of the
potentially billable dental procedures. Delta, a corporation
that provides and administers various member dental care
service plans, published its own book entitled "Universal
Coding and Nomenclature." This book included most of the
numbering system and short descriptions from the ADA's
Code. See 

Court held that the ADA's
taxonomy was not copyrightable.

In reversing the District Court, the Seventh Circuitfirst
expressed concern that the District Court's decision was so
sweeping that it would remove copyright protection from
many other well-established "taxonomies," such as the
West Key Number System and the manuals issued by the
Financial Accounting Standards Board to specify generally
accepted accounting practices. See 

The Court
went on to hold that the ADA's taxonomy was entitled to
copyright protection. See 

The Court observed:

       Facts do not supply their own principles of
       organization. Classification is a creative endeavor.
       Butterflies may be grouped by their wings, or their
       feeding or breeding habits, or their habitats, or the
       attributes of their caterpillars, or the sequence of their
       DNA; each scheme of classification could be expressed
       in multiple ways. Dental procedures could be classified
       by complexity, or by the tools necessary to perform
       them, or by the parts of the mouth involved, or by the
       anesthesia employed, or in any of a dozen different
       ways.

added:

       Creativity marks the expression even after the
       fundamental scheme has been devised. This is clear
       enough for the long description of each procedure in
       the ADA's Code. The long description is part of the
       copyrighted work, and original long descriptions make
_________________________________________________________________

10. For example, the number 04267 is assigned to the short description
"guided tissue regeneration -- nonresorbable barrier, per site, per tooth
(includes membrane removal)." American Dental 

.

                               13
       the work as a whole copyrightable. But we think that
       even the short description and the number are original
       works of authorship.

that there are important distinctions between
American Dental and the present case. The long and short
descriptions of the various dental procedures are obviously
very different from the part numbers at issue in the present
case, and therefore the Seventh Circuit's decision that
these descriptions are copyrightable has no application
here. Moreover, even the numbers assigned to the
procedures appear to be quite different. These numbers
were not chosen randomly, as were the numbers in Toro or
the computer codes in Mitel, and they were not the
mechanical results of a numbering system, as are the part
numbers in question in this case. Rather, the numbers in
American Dental reflected creative thought. The entries in
the ADA's Code were originally developed by a committee
comprised of representatives from interested organizations.
See American Dental Ass'n v. Delta Dental Plans Ass'n, No.
92-C-5909, 

, at *2-3 (N.D.Ill. May 1, 1996).
When new procedures were developed or other changes to
the system became necessary, this committee collected
written proposals submitted by state dental societies and
national dental organizations. The committee then debated,
edited, and voted on the proposals. See 

Although
the ADA eventually changed this process, the new process
still involved significant debate and editing of proposals by
this committee. See 

Assigning a number to a particular dental procedure
reflects a decision about the distinctiveness and prevalence
of the procedure and its relationship to the other
procedures in the Code. Each number series in the Code
refers to a particular category of procedures. For example,
the 00100-00999 series refers to "Diagnostic" procedures,
and the 02000-2999 series refers to "restorative
procedures." And it appears that closely related procedures
are grouped within each series. For example, the 2100
series, which is grouped under the heading "Amalgam
Restorations (including polishing)," is as follows:

                               14
       02110   amalgam   -   one surface, primary
       02120   amalgam   -   two surfaces, primary
       02130   amalgam   -   three surfaces, primary
       02131   amalgam   -   four or more surfaces, primary
       02140   amalgam   -   one surface, permanent
       02150   amalgam   -   two surfaces, permanent
       02160   amalgam   -   three surfaces, permanent
       02161   amalgam   -   four or more surfaces, permanent

American Dental Association, Current Dental Terminology,
at 10 (1st ed. 1990-1995). Thus, assigning a particular
number to a particular procedure involved at least a
modicum of creativity.

The ADA's system stands in stark contrast to Southco's.
As previously discussed, Southco's system is highly
mechanical and leaves no room for creativity. When a new
fastener is created, there is only one possible part number.
Assigning a particular number to the fastener does not
involve any creativity or any choice about how the fastener
should be classified. Accordingly, even if we were bound by
American Dental, we would not regard it as controlling here.

In sum, we conclude that the District Court committed
an error in holding that the Southco numbers satisfied the
originality requirement of the Copyright Act. We hold that
Southco has no likelihood of success in its infringement
action and that the entry of the preliminary injunction in
its favor was not proper. We therefore reverse the order of
the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                     15