New Castle News

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November 27, 2012

Judge won’t consolidate Lettermen lawsuits

MERCER — The legal claims filed by Tony Butala and a former Lettermen singer now in state and federal courts will not be consolidated in federal court.

U.S. District Court Judge David S. Cercone, Pittsburgh said this month he has no jurisdiction to step into the claims filed in state court.

Mark Preston filed two breach of contract suits against Butala in March 2011 and January in York County.

Butala, of Sharon, the lone member of the trio that peppered the charts with a steady stream of romantic ballads in the early 1960s, sued his former singing mate in February in Mercer County Common Pleas Court alleging breach of contract, copyright and trademark infringement and unfair compensation. Preston had Butala’s suit transferred to federal court because trademark and copyright claims are alleged violations of federal law.

In July, Butala asked Cercone to usurp jurisdiction of Preston’s York suits because the claims in his suits are “closely related” to the contract claim in Butala’s suit.

The claims in all of the suits “form part of the same case of controversy,” Butala said.

On Nov. 16, Cercone said he cannot exercise jurisdiction over a state lawsuit unless there is a federal claim in the suit. Preston’s suits do not assert violations of federal law, he said.

Preston was with the group at two different times, the last running from Sept. 1, 2005, to Aug. 4, 2011.

Butala alleged Preston violated his employment contract by representing himself as a former member of the group, using portions of Butala-owned Lettermen performances on his website and Facebook page, recording Lettermen songs, and referring to sweaters in his post-Lettermen group.

Preston acknowledged some of the actions Butala accused him of, but said the contract cannot be enforced because Butala failed to pay him.

In response to copyright and trademark allegations, Preston said Butala did not arrange the songs or instrumentation, and does not own the rights to the instrumentation, arrangements and contents of Lettermen songs and video performances.

The Lettermen, including Donovan Scott Tea, who introduced Preston to Butala, perform Christmas shows at 1:30 and 7 p.m. Dec. 13 in Packard Music Hall, Warren, Ohio.

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