The Herald, Sharon, Pa.

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September 30, 2013

Federal judge denies latest motions in Lettermen suit

SHARON — A federal judge last week denied a motion by The Lettermen’s Tony Butala to find that a former Lettermen singer has violated contract and copyright laws.

The judge said Butala could refile the request and, if he did, defendant Mark Preston would have to more appropriately respond to it.

Butala, of Sharon, sued Preston over Preston’s alleged use of Lettermen songs, images and the iconic Lettermen sweaters in his post-Lettermen singing career.

The Lettermen scored numerous soft rock hits, such as “The Way You Look Tonight” and “Theme From a Summer Place,” and Butala has kept the group recording and performing concerts since the 1960s. He is the only original member of the hit-making trio still with the group.

Preston has his own suits pending in York County, Pa., where he lives, over money he alleges Butala owes him.

Butala filed a motion for summary judgment as far as liability, essentially asking that U.S. District Court Judge David Stewart Cercone, Pittsburgh, use the evidence made available in deposition testimony and documents to find that Preston did what Butala alleges.

Cercone was not asked to determine what money Preston would owe Butala, as that would be subject to future proceedings.

Preston filed a two-page answer to the motion and a motion to strike Butala’s motion.

Cercone, who has had the issues since January, denied both motions.

The motion to strike was “inappropriate,” the judge said, as court rules require that a formal response to a motion to summary judgment be filed with legal citations and specifics about disputed facts.

The judge said he made a “cursory” review of the filings and concluded there probably are fact issues that would make granting summary judgment inappropriate, but he would not want to do that without a proper response from Preston.

Cercone told Butala to review the case. It he believes sufficient facts are not in dispute, he can refile a motion for summary judgment by Sept. 23. Preston would then have a month to respond.

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