724 F.2d 1320
221 U.S.P.Q. 410, 14 Fed. R. Evid. Serv. 1491
WSM, INCORPORATED, Appellant,v.Dennis E. HILTON and Country Shindig Opry, Inc., Appellees.
No. 82-2139.
United States Court of Appeals,Eighth Circuit.
Submitted June 14, 1983.Decided Jan. 12, 1984.

James W. Gallaher, Bushmann, Neff, Gallaher & Brown, Jefferson City, Mo., Lionel L. Lucchesi, Polster, Polster & Lucchesi, St. Louis, Mo., for appellees.
L. Lawton Rogers, III, Arlington, Va., Francis M. Wentworth, Jr., Nashville, Tenn., for appellant.
Before JOHN R. GIBSON, and FAGG, Circuit Judges, and WOODS,* District Judge.
JOHN R. GIBSON, Circuit Judge.

1
"Opry," what it means and whether the word, as a registered trademark of WSM, Incorporated, was infringed by Dennis Hilton and his Country Shindig Opry are the primary issues in this case.  WSM is also the holder of trademarks for Grand Ole Opry and several marks using Opryland.  The district court1 found that "opry" was generic, that there was no confusion between the Country Shindig Opry and the various marks and enterprises of WSM, and that a permanent injunction should be denied WSM.  WSM argues on appeal that the court erred in holding "opry" to be generic, in holding that there was no likelihood of confusion between the Country Shindig Opry and WSM's opry family of marks, and in limiting its consideration of dilution to "opry" and to a likelihood of confusion.  We affirm the judgment of the district court.

2
WSM first made commercial use of the word "opry" in 1927 when the WSM Barn Dance Radio Program, which immediately followed a program of classical music, was referred to as the "Grand Ole Opry."    "Grand Ole Opry" was registered as a trademark by WSM on July 11, 1950.  WSM registered "Opryland USA" on February 6, 1973, a design of the same name on February 26, 1974, "Opryland Hotel" on February 17, 1981, and a design on April 14, 1981, "Opryland" for an amusement park on April 28, 1981, and "Opryland Talent Agency" on August 4, 1981.

3
"Opry" was registered by WSM on January 12, 1982.  Over the years WSM has operated the various enterprises, including the presentation of the Grand Ole Opry.

4
Dennis Hilton commenced operating the Country Shindig on May 25, 1970, and used that name until the summer of 1973 when the business name was changed to Denny Hilton's Country Shindig Opry Show.  As found by the district court, the name was changed after Hilton learned that potential customers believed that the show consisted wholly of dancing.  On February 17, 1976, Hilton became the owner of a registered mark known as "Country Shindig."

5
In each of the years 1979 through 1982, WSM demanded that Hilton cease his alleged infringement of the mark "Grand Ole Opry."    This action was brought in the spring of 1982 making the following claims against Hilton and the Country Shindig Opry:  (1) infringement of WSM's registered trademarks in violation of 15 U.S.C. Sec. 1114(1) (1963);  (2) engaging in unfair competition in violation of 15 U.S.C. Sec. 1125 (1982) and Missouri common law;  and (3) diluting the distinctiveness of WSM's trademarks in violation of Sec. 417.061 of the Revised Statutes of Missouri.

6
Following a two-day trial, the court entered its order and extensive findings of fact.2   The court stated that the word "opry" is a dialectical variation of "opera," which has been in common use from the eighteenth century to the present, and that "opry" has been and is now used to describe a show consisting of country music, dancing, and comedy routines.  The court found that the public is aware of the different ownership of the Grand Ole Opry and Denny Hilton's Country Shindig Opry Show and has exhibited no confusion in distinguishing them.   WSM, Inc. v. Hilton, 545 F.Supp. 1212, 1214-16 (W.D.Mo.1982).

7
The district court held that the test of infringement under Sec. 1114(1) required a showing that confusion, mistake or deception is likely to occur in the minds of the public.  It found that "opry" was the only possible cause for confusion and concluded that

8
the members of the public who purchase country music entertainment services exercise a degree of care which obviates the likelihood that they will be confused as to whose services they are purchasing.  The public has exhibited no confusion in distinguishing between Lee Mace's Ozark Opry and Denny Hilton's Country Shindig Opry Show, or in distinguishing between the Grand Ole Opry and Denny Hilton's Country Shindig Opry Show.  Persons who attended the Ozark Opry or the Country Shindig Opry Show do not believe that they are attending a performance of the Grand Ole Opry.

9
Hilton, supra, 545 F.Supp. at 1217.

10
The district court also concluded that no evidence was introduced by WSM which showed that the public was actually confused about whether there was an association between Grand Ole Opry and Denny Hilton's Country Shindig Opry Show.

11
The district court held that the prima facie showing of WSM's exclusive right to use Opry as its mark under 15 U.S.C. Sec. 1115(a) (1982) was rebutted by a showing that the word "opry" is generic.  The buyer understanding test was applied.  The court found that "opry" is a generic word which connotes in the minds of the public a country music performance that includes dancing and comedy routines.  The court further found that the generic nature of the word "opry" did not change in 1927 when WSM commenced its commercial use of the word.

12
The district court concluded that WSM had not shown violation of Section 43(a) of the Lanham Act, 115 U.S.C. Sec. 1125(a), or the Missouri common law of unfair competition because the use of the word "opry" by Hilton does not amount to a false description or representation since the word is generic.  It concluded that because of its finding that the business entitled "Denny Hilton's Country Shindig Opry Show" is not likely to cause confusion or misapprehension in the minds of the public with respect to the marks owned by WSM, there was no basis for a common law unfair competition claim.  The district court also rejected WSM's claim of violation of the Missouri Anti-Dilution Statute, Mo.Rev.Stat. Sec. 417.061 (1978), concluding that since "opry" is generic, the question of dilution does not arise.

13
WSM's request for a permanent injunction was denied.  On appeal WSM argues that whether "opry" is generic must be evaluated at a relevant time and in a relevant market, and the district court erred in failing to so consider the issue.  WSM argues that the evidence does not support the findings of the district court in this respect.  It further argues that the district court failed to consider all of WSM's marks individually and collectively, and that it failed to consider Hilton's intent.  WSM argues that the court's conclusion that the public associated Grand Ole Opry and Ozark Opry but found no inference of confusion between Grand Ole Opry and Country Shindig Opry was inconsistent.  It further argues that the court improperly limited its consideration to "opry" with respect to dilution and did not consider the other marks in the "opry family," and limited its analysis to likelihood of confusion contrary to the clear language of the statute.

I.

14
A generic term refers to "a particular genus or class of which an individual article or service is but a member," Soweco, Inc. v. Shell Oil, 617 F.2d 1178, 1183 (5th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1516, 67 L.Ed.2d 816 (1981);  Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976);  it suggests the "basic nature of articles or services."   Soweco, supra, 617 F.2d at 1183.  The test for deciding whether a word has become a generic title of a product or service is one of buyer understanding:  "What do the buyers understand by the word for whose use the parties are contending?"   Dresser Industries, Inc. v. Heraeus Engelhard Vacuum, Inc., 395 F.2d 457, 463 (3d Cir.1968), cert. denied, 393 U.S. 934, 89 S.Ct. 293, 21 L.Ed.2d 270 (1968), (quoting Bayer Co. v. United Drug Co., 272 F. 505, 509 (S.D.N.Y.1921)).   See also Miller Brewing Co. v. Jos.  Schlitz Brewing Co., 605 F.2d 990 (7th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980).  We must apply the same test to our question which is one involving entertainment services.

15
How a particular word has been used and how it has been understood by the public is a question of fact.  Dresser, supra, 395 F.2d at 461.  A term for which trademark protection is claimed will fall in one of four categories:  (1) generic, (2) descriptive, (3) suggestive, or (4) arbitrary or fanciful.  These categories, like colors in a spectrum, tend to blur at the edges and merge together, making it difficult to apply the appropriate label.   Soweco, supra, 617 F.2d at 1183;  Vision Center v. Opticks, Inc., 596 F.2d 111, 115 (5th Cir.1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980).  The correct categorization of a given term is also a factual issue.  Soweco, supra 617 F.2d at 1183 n. 12;  3 Callmann, The Law of Unfair Competition, Trademarks and Monopolies, 66 (Cum.Supp.1982).

16
We therefore review the district court's findings under the clearly erroneous standard of Rule 52 of the Federal Rules of Civil Procedure.   Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786, 793 (5th Cir.1983);  Walt-West Enterprises, Inc. v. Gannett Co., 695 F.2d 1050, 1059 (7th Cir.1982);  Hindu Incense v. Meadows, 692 F.2d 1048, 1050 (6th Cir.1982);  Anti-Monopoly, Inc. v. General Mills Fun Group, Inc., 684 F.2d 1316, 1318 (9th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983);  Dresser, supra, 395 F.2d at 461.

17
Under the Lanham Act, 15 U.S.C. Sec. 1057(b) (1976), WSM's registration of "opry" "shall be prima facie evidence of the validity of the registration, registrant's ownership of the mark, and of registrant's exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate (of registration) ...."  The presumption created by the Lanham Act is a rebuttable one, Vision Center, supra, 596 F.2d at 119, which shifts the burden of proof to the one questioning the trademark.   Dymo Industries, Inc. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir.1964);  Iowa Farmers Union v. Farmers' Educational Union, 247 F.2d 809, 818 (8th Cir.1957).  The statutory presumption may be overcome by establishing the generic nature of the mark.   Vision Center, supra, 596 F.2d at 119.  WSM contends that the evidence presented by Hilton failed to overcome this burden.  After carefully reviewing the record we conclude that the evidence presented supports the district court's finding that "opry" is a generic term, and that this finding is not clearly erroneous.

18
The evidence establishes that "opry" was in common use before WSM began using it in 1927.  Both the testimony of Dr. Fredric Cassidy, an expert in the field of regional English, and the treatises to which he referred show that the word "opry" was in use by the public long before George Hay named the WSM radio show the Grand Ole Opry.  As Dr. Cassidy explained, "opry" is a dialectical variation of the word "opera" and was used to refer to various shows with a rural association, i.e., horse opry, medicine opry, and jig opry.  According to Dr. Cassidy, in certain regions there is a custom of pronouncing words ending with the letter "a" as if the word ended with the letter "y."    Porter Wagoner testified that when he was a boy growing up in West Plains, Missouri, he had heard the word "sofa" pronounced "sofy," and the word "opera" pronounced "opry."    This manner of speaking was documented in some detail by Vance Randolph in Down in the Holler, a gallery of Ozark folk speech, which was in evidence before the district court.  Randolph identified numerous words where there was such language usage.  The Pronunciation of English in the Atlantic States, by Hans Kurath and Raven I. McDavid, Jr., which was also in evidence, shows a similar manner of speech in the Appalachian regions.

19
Dr. Cassidy testified that the word "opera" or "opry" as used in jig opry or horse opry was a satirical reference to classical grand opera.  That is exactly, as George Hay tells it in his history of the Grand Ole Opry, how Hay came to refer to the WSM radio show as the Grand Ole Opry.  In his book, A Story of the Grand Ole Opry, Hay tells how he named the radio show.  Following an hour of classical music conducted by Dr. Walter Damrosch,

20
[o]ur control operator gave us the signal which indicated that we were on the air....  We paid our respects to Dr. Damrosch and said on the air something like this:  Friends, the programme (sic) which just came to a close was devoted to the classics.  Dr. Damrosch told us that it was generally agreed that there is no place in the classics for realism.  However, from here on out for the next three hours we will present nothing but realism.  It will be down to earth for the earthy....  For the past hour we have been listening to music taken largely from Grand Opera.  But from now on, we will present the Grand Ole Opry.

21
From the evidence presented, it is clear that WSM did not arbitrarily create the word "opry."    Instead it appears WSM chose to call their barndance radio show the Grand Ole Opry to fit the type of entertainment offered.  WSM appropriated the word "opry," with its historical roots in country and hill areas similar to the home area of Porter Wagoner, in an effort to communicate the rural, folk nature of the show.  The record reveals that this was a conscious effort to receive the benefits of the gloss that the word "opry" would give to the nature of the show.  As testified by Minnie Pearl and from WSM's exhibit, Nashville's Grand Ole Opry by Jack Hurst, Hay had lived in close contact with the rural mountain people and was aware of their common vernacular.  He was familiar with the dialectical variation of "opera" as "opry," and he knew that the rural population to which WSM's radio show was directed would understand what he meant by the term "opry."    As Hay explained about the name "Grand Ole Opry," "it seemed to fit our shindig, hoe down, barn dance, or rookus...."

22
But no matter how much money and effort WSM has poured into promoting its product and what success it has achieved in securing public identification, WSM cannot deprive others of the right to call a product or service by its generic title.   Abercrombie, supra, 537 F.2d at 9.  To avoid unreasonably restraining the public's use of the language, the exclusive appropriation of generic words must be discouraged.  The public has an interest in the "natural enrichment of the language [and the prevention of the] 'diminution of the language through private acquisition.' "    Folsom and Teply, Trademarked Generic Words, 89 Yale L.J. 1323, 1346 n. 110 (1980) (citations omitted).

23
WSM argues that the district court erred as a matter of law in that it failed to determine the generic nature of "opry" at a relevant time.  The district court not only found that "opry" had been in common use since the eighteenth century, but also found that its generic nature has not changed.  In making its finding that "opry" is a generic term the district court appropriately applied the buyer understanding test.  There is temporally relevant evidence in the record to support a finding that the current use of the word by the consuming public is of a generic nature.  The Webster's Third New International Dictionary contains a definition of "opry."    The dictionary definition of a word is an appropriate and relevant indication of the ordinary significance and meaning of words to the public.   Zatarains, supra, 698 F.2d at 792;  American Heritage Life Insurance Co. v. Heritage Life Insurance Co., 494 F.2d 3, 11 n. 5 (5th Cir.1974).  WSM argues that this dictionary evidence is not temporally relevant because Webster's Third New International Dictionary bears a 1961 copyright.  However, as pointed out by Dr. Cassidy in his deposition, language, although not static, "doesn't change over night."    He further stated that

24
... between 1961 and 1982, it's barely one generation, and the information there should still be of contemporary value.  Language doesn't change all that fast.  New words come, yes.  Old words die out, but it goes by generations.

25
The Pronunciation of English in the Atlantic States, on which the district court also relied in making its finding that "opry" is generic, was also published in 1961.  We conclude that there was temporally relevant evidence in the record from which the district court could find that "opry" as currently used by the consuming public is generic.

26
WSM also argues that the absence of "opry" in other dictionaries refutes the finding that "opry" is generic.  A word need not appear in all dictionaries in order to be found generic.  Whether a term is generic is determined by actual common usage.   See Miller Brewing Co. v. Heileman Brewing Co., 561 F.2d 75, 79-80 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978).  Inclusion in Webster's is evidence of the ordinary meaning of the word and indicates at least some degree of usage by the public.  There is also evidence in the record that Webster's is more comprehensive than other dictionaries and reflects modern usage more than some of the dictionaries in which "opry" did not appear.  From such evidence the district court could correctly find that inclusion in Webster's was evidence of actual common usage.  That evidence plus Hilton's own testimony and the testimony of Dr. Cassidy and the treatises on which he relied constitute substantial evidence to support the court's finding that "opry" is a generic word denoting a country music show.

27
WSM contends, however, that in attempting to apply the buyer understanding test the district court erred in relying on the testimony of Hilton's expert witness, Dr. Cassidy, and ignored the testimony of WSM's witnesses, all of whom were knowledgeable in the country music industry.  According to WSM, Dr. Cassidy's testimony was inadmissible on the issue of the generic nature of "opry" because Dr. Cassidy was not an expert in the field of country music.  In ruling on the admissibility of evidence, the trial court has a wide area of discretion and will be overturned only for an abuse of that discretion.   Kontz v. K-Mart Corp., 712 F.2d 1302 (8th Cir.1983).  Here we find no abuse of discretion.  Although not an expert in the country music field, Dr. Cassidy is an expert in the field of regional English.  As such he is qualified to testify concerning the origin of the word "opry," as well as how the word is used by the consuming public.

28
WSM's contention that the district court did not consider the testimony of WSM's witnesses, which included such Grand Ole Opry stars as Roy Acuff, Minnie Pearl, and Porter Wagoner, is without merit.  The court spent the better part of two days listening to their testimony about the Grand Ole Opry.  WSM argues that the district court should have given more weight to the plaintiff's witnesses as to the meaning of "opry" to the purchasing public and should have answered the question of buyer understanding in the way testified by these witnesses.  The evidence was contradictory and the district court did give controlling significance to the evidence presented by Hilton.  However, the question of credibility is peculiarly for the trier of fact.  An appellate court will not redetermine the credibility of witnesses, where, as here, the trial court had the opportunity to observe their demeanor and form a conclusion.  Fed.R.Civ.P. 52(a);  Dresser Industries, supra, 395 F.2d at 463.

29
WSM's witnesses all had close connections with the Grand Ole Opry;  three were Grand Ole Opry stars and one was President of WSM.  The court has discretion to evaluate the testimony of these witnesses and to give less credit to the testimony of such interested persons.   United States v. Oregon State Medical Society, 343 U.S. 326, 339, 72 S.Ct. 690, 698, 96 L.Ed. 978 (1952).  Our study of the transcript leaves us with an impression that the district court could well have concluded that the testimony of these witnesses was so frequently nonresponsive and contained so much affirmatively volunteered, self-serving material that it should be given limited weight.  That the district court did not specifically mention the testimony of these witnesses in its findings of fact leaves us with this conclusion rather than a conclusion that it was simply overlooked by the district court, a fact which would not be consistent with the obvious impact of the appearances and testimony of these individuals.3

30
WSM also alleges that in making its finding that "opry" is a generic term, the court relied on evidence not in the record. At one point during the trial the judge said, "Listen, here's the thing.  You can't separate what you know yourself."    The statement was made during the course of receiving evidence, and is more a comment that the evidence was consistent with the court's observation, rather than an expression of predisposition or that such statement was itself the basis for the court's conclusion.  The abundant findings of fact entered by the district court, and our finding of ample support for these findings in our study of the record, demonstrates that the case was properly decided on the record before the district court.

31
We conclude that the district court's finding that "opry" is a generic term is not clearly erroneous and affirm the cancellation of the "opry" registration.4

II.

32
WSM alleges that the district court's finding that Hilton did not infringe its trademark rights is erroneous in that the court failed to consider all of WSM's marks individually and collectively, and that it failed to consider Hilton's intent.  WSM also argues that the court's conclusion that there is no likelihood of confusion between Grand Ole Opry and Denny Hilton's Country Shindig Opry Show is inconsistent with its observation that the public associated Ozark Opry with the Grand Ole Opry.

33
Liability under the Lanham Act for trademark infringement is predicated on the use of a registered trademark that "is likely to cause confusion."    15 U.S.C. Sec. 1114(1)(a).  As this Court stated in Vitek Systems, Inc. v. Abbott Laboratories, 675 F.2d 190 (8th Cir.1982), the essential question in any case of alleged trademark infringement is whether purchasers are likely to be misled or confused as to the source of the different products or services.  The resolution of this issue requires the court to consider numerous factors to determine whether, under all the circumstances, there is a likelihood of confusion.   Vitek, supra, 675 F.2d at 192.  These factors include the similarity of WSM's marks and Hilton's business title, the intention of Hilton in selecting his business title, the degree of care that is likely to be exercised by the purchasers of the entertainment services, and the existence of actual confusion.   See Squirtco v. Seven Up Co., 628 F.2d 1086, 1091 (8th Cir.1980).  Actual confusion is not essential to a finding of infringement;  however, a mere possibility is not enough.  There must be a substantial likelihood that the public will be confused.  Likelihood of confusion is a finding of fact, and therefore, the district court's finding will be upheld unless it is clearly erroneous.   Vitek, supra, 675 F.2d at 192.

34
The district court applied the several factors to the evidence in this case and concluded that Denny Hilton's Country Shindig Opry Show is not likely to be confused with the marks owned by WSM.  The district court considered the appearance of Hilton's business title and the marks owned by WSM, as well as the advertising designs used by both Hilton and WSM, and found that there was no substantial similarity between them.  As a fair reading of the district court opinion indicates, in comparing Hilton's business title and WSM's marks, the district court expressly considered all of WSM's marks;  therefore WSM's allegation to the contrary is without merit.

35
WSM's contention that the district court did not consider Hilton's intent in resolving the issue of confusion also fails.  The district court's determination was based on the application of the above-mentioned factors to the facts of this case, including consideration of Hilton's intent.  The court found that Hilton did not add the word "opry" to the name of his show in order to deceive the public that Denny Hilton's Country Shindig Opry Show was affiliated with the Grand Ole Opry or that Grand Ole Opry stars would be performing.  There is evidence in the record to support this finding and WSM failed to prove otherwise.

36
The district court found that WSM introduced no evidence which showed actual confusion.  WSM contends, however, that the court's finding on the issue of confusion is not supported by the evidence and that there is evidence in the record which supports the existence of a likelihood of confusion.  After a review of the entire transcript, we conclude that the district court's finding is not clearly erroneous.  The findings of the district court demonstrate that the country music audience is a sophisticated one and that the Grand Ole Opry with its panoply of nationally known performing and recording stars would not be confused with other performances that might utilize the commonly used word "opry."

37
Both parties presented testimony concerning the existence of the likelihood of confusion.  In their briefs both WSM and Hilton focus on the testimony of Lee Mace, owner of Ozark Opry and licensee of WSM.  Mace testified that although there might be isolated instances in which someone going to Denny Hilton's Country Shindig Opry Show expects to see performers from the Grand Ole Opry, he did not believe that "that is the general case."    When asked by the court if anyone would be fooled by the use of the word "opry," Mace answered, "I think there might be isolated incidents, but I don't think it would be a major thing....  I think most everybody knows where they are going."    As pointed out by WSM, Mace also testified to the possibility of some confusion.  WSM presented no witnesses who were actually confused by Hilton's use of "opry."    All the testimony on which WSM relies as proof of the existence of a likelihood of confusion is secondhand testimony--persons testifying to the alleged confusion of third parties.

38
WSM also alleges that the district court finding of no likelihood of confusion is erroneous in that the court failed to consider confusion as to sponsorship or affiliation.  While conceding that no one who enters the Denny Hilton Country Shindig Opry in Osage Beach, Missouri, would think he was attending the Grand Ole Opry in Tennessee, WSM argues that there is a likelihood of confusion as to sponsorship or affiliation between Denny Hilton's Country Shindig Opry Show and the Grand Ole Opry.  It is clear from the district court opinion that the court considered the possibility of public confusion regarding an association between the Grand Ole Opry and Denny Hilton's Country Shindig Opry Show, and concluded that WSM had failed to present any probative evidence on this point.  Our review of the evidence confirms the district court's finding.

39
Contrary to WSM's contention, the district court's conclusion that there is no likelihood of confusion between Grand Ole Opry and Denny Hilton's Country Shindig Opry Show is not inconsistent with its observation that the public associated Ozark Opry with the Grand Ole Opry.  Since Ozark Opry is a licensee of WSM, such an association of the two by the public is logical and is supported by the testimony of Lee Mace, owner of Ozark Opry.  There was no such direct, uncontradicted testimony concerning confusion of association between Grand Ole Opry and Denny Hilton's Country Shindig Opry Show.

40
The district court weighed and evaluated the evidence presented concerning consumer confusion and concluded that there was no likelihood of confusion by the consuming public.  On the record before us, we cannot say that this finding is clearly erroneous.  On the contrary, the finding of the district court appears to be in conformity with the position taken in the Restatement of Torts:

41
The ultimate test of whether or not there is a confusing similarity between a designation and a trademark or tradename which it is alleged to infringe is the effect in the market in which they are used....  In any event, the issue is whether an appreciable number of prospective purchasers of the goods or services in connection with which the designation and the trademark or tradename are used are likely to regard them as indicating the same source.  That a few particularly undiscerning prospective purchasers might be so misled is not enough.

42
Restatement of Torts Sec. 728, comment a.  The finding of no likelihood of confusion by the district court is adequately supported by the evidence, is not clearly erroneous, and must be affirmed.

III.

43
WSM argues that in making its finding of no unfair competition the district court misconstrued the law.  Section 43(a) of the Lanham Act provides that

44
[a]ny person who shall affix, apply, or annex, or use in connection with any goods or services ... a false designation of origin, or any false description or representation ... and shall cause such goods or services to enter into commerce ... shall be liable to a civil action by any person ... who believes that he is or is likely to be damaged by the use of any false description or representation.

45
15 U.S.C. Sec. 1125(a).  The purpose of section 43(a) is to create a new federal remedy for the particular kind of unfair competition that results from false designation of origin or other false representation used in connection with the sale of a product.   Metric & MultiStandard Components v. Metric's, Inc., 635 F.2d 710, 713 (8th Cir.1980).

46
WSM is entitled to protection under section 43(a) of the Lanham Act if it can establish that use of its mark by Hilton constitutes a false designation of origin or false representation and that the public is likely to be confused by that use.   Metric, supra, 635 F.2d at 714;  American Footwear Corp. v. General Footwear Co., 609 F.2d 655, 664 (2d Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980).  In determining that Hilton is not engaging in unfair competition by his use of "opry" the district court found that (1) Hilton's use of "opry" in his business title does not constitute a false description or representation, and (2) Hilton's use of the business title "Denny Hilton's Country Shindig Opry Show" is not likely to cause confusion in the minds of the public.

47
WSM contends that the district court erred when it stated that since the word "opry" is generic, its use does not amount to a false description or representation.  Although the district court's language may have been overbroad,5 we affirm the finding that Hilton's use of "opry" does not constitute unfair competition on the basis of the district court's determination that there is no likelihood of confusion by the public.6

IV.

48
WSM also alleges that the district court erroneously rejected WSM's claim under the Missouri anti-dilution statute, which provides that

49
[l]ikelihood of injury to business reputation or of dilution of the distinctive quality of a mark ... valid at common law, or a trade name valid at common law, shall be a ground for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.

50
Mo.Rev.Stat. Sec. 417.061 (1978).  WSM argues that the district court improperly based its rejection of the dilution claim on its finding of no likelihood of confusion in direct contravention to the wording of the statute.

51
Although we find no reported cases construing the Missouri anti-dilution statute, interpretations of other similar state anti-dilution statutes as well as the basic theory of anti-dilution provide us with a starting point in applying the Missouri statute.

52
Callmann, on whom WSM frequently relies in its brief, in 3 The Law of Unfair Competition, Trademarks and Monopolies, (3d ed. Cum.Supp.1982), at pages 954-55, defines dilution as follows:

53
The gravamen of a dilution complaint is that the continuing use of a mark similar to the plaintiff's mark will inexorably have an adverse effect upon the value of the plaintiff's mark, and that, if he is powerless to prevent such use, the plaintiff's mark will eventually be deprived of all distinctiveness....  [D]ilution is a cancer which, if allowed to spread, will inevitably destroy the advertising value of the mark.

54
See also Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252, 265 (5th Cir.1980), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980) (interpreting the Georgia anti-dilution statute);  Community Federal Savings & Loan Assoc. v. Orondorff, 678 F.2d 1034, 1037 (11th Cir.1982) (interpreting the Florida anti-dilution statute).

55
In Pignons v. Polaroid Corp., 657 F.2d 482 (1st Cir.1981) (interpreting the Massachusetts anti-dilution statute), the court stated that to sustain an action under the anti-dilution statute, plaintiff must show that its mark is distinctive and that the defendant's use of a similar mark has created the likelihood of dilution.  657 F.2d at 493-94.  It is the general view that the dilution theory is only applicable if plaintiff's mark is arbitrary, coined, fanciful, or has become distinctive by acquiring a secondary meaning.  Callmann, supra, at 956 n. 60;  Dilution:  Trademark Infringement or Will-O'-the-Wisp?, 77 Harv.L.Rev. 520, 530 (1964).   Cf. Polaroid Corp. v. Polaraid Inc., 319 F.2d 830, 837 (7th Cir.1963) (interpreting the Illinois anti-dilution statute).

56
The district court found that "opry" is a generic term and that it does not have a distinctive quality outside its generic nature;  therefore WSM does not have a valid claim under Mo.Rev.Stat. Sec. 417.061.7   As we stated, the district court's finding that "opry" is generic in nature is not clearly erroneous.  Since "opry" is not an arbitrary, coined or fanciful term, it is not a distinctive mark entitled to protection under the Missouri anti-dilution statute.

57
WSM argues that even if "opry" is not distinctive alone, marks should be considered in their entireties, and both "Ozark Opry" and "Grand Ole Opry" when considered as a whole, are distinctive.  Even if we were to accept WSM's argument, we would still uphold the judgment of the district court on the ground that Hilton's use of "opry" in his business title creates no likelihood of dilution of the distinctive quality of WSM's marks.  Our review of the record indicates that Hilton does not use "opry" alone but uses it only in connection with his name, Denny Hilton, and/or his registered trademark, "Country Shindig."    The use of a uniquely identifying trade name can be an adequate remedy for dilution.   Astra Pharmaceutical Products, Inc. v. Beckman Instruments, Inc., 718 F.2d 1201 (1st Cir.1983).

58
For all the above reasons the judgment of the district court is affirmed.

*
 The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas

1
 The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri

2
 The court's findings included the following:

10
 The word "opera" has been in common use from the eighteenth century to the present in connection with classical grand opera and with satirical references to grand opera.  Several of the satirical references to grand opera include "horse opera," "medicine opera," "jig opera," and "burnt-cork opera."    A "horse opera" describes a particular genre of cowboy-western movie in which western folk songs are sung by the cowboys.  A "medicine opera" describes an entertainment program which often consists of the showing of a short motion picture, of the live performance of folk or country songs and dances, of comical displays by white persons disguised as Negroes, and of the sale of medicinal and other goods.  A "jig opera" or "burnt-cork opera" describes a minstrel show performed by black persons or white persons with blackened faces.  These types of "operas" were often performed in the town "opera house."

11
 Certain persons who reside along the mid-Atlantic seaboard, in Appalachia and in the Ozarks have adhered to a rule of pronunciation under which words ending with the letter "a" are pronounced as if the word ended with the letter "y."    The word "opera" is among at least 175 words to which this rule of dialectic pronunciation applies.  For example, "opera" is pronounced as "opery" or "opry."    The horse, medicine and jig operas were often respectively referred to as "horse opry" or "hoss opry," "medicine opry" or "med-opry," and "jig opry."

12
 The adoption of the "Grand Ole Opry" mark by WSM had its origin in the satirical contrast on a program of grand opera which immediately preceded the WSM Barndance Radio Program.  Judge George D. Hay, the WSM radio announcer for the Barndance, established the satirical reference when he commented on the program that "for the past hour we have been listening to music taken largely from grand opera, but from now on we will present, 'The Grand Ole Opry.' "    Judge Hay, as a newspaper reporter who lived in close contact with the rural and mountain people of Tennessee, was aware of their common vernacular, was familiar with the dialectic variation of "opera" as "opry" and knew that the satirical comparison with grand opera would be enhanced by the use of the word "opry."

13
 The word "opry" is listed and defined in Webster's New Third International Dictionary as a dialectic variation of the word "opera" and as a substandard word which is today used by certain portions of the speaking American public.  The use of the word "opry" is more likely to occur in oral speech rather than in printed matter.  The American Thesaurus of Slang lists "opry" as a "musical performance," describes an "opery house" as a "theatre," and includes "horse opera" and "hoss opry" among terms referred to a "circus."

14
 The word "opry" has been and is now used in connection with country music performances of various types.  Cowboy performers in the "horse oprys" sang western songs.  Minstrels in the "medicine," "jig" and "burnt-cork" oprys sang country and folk songs, and danced to similar music.  Today, the word "opry" describes a show consisting of country music, dancing and comedy routines.  It does not always connote "Grand Ole Opry" when it is used in oral or written discourse.  When "opry" is used in connection with a description of the country music entertainment services provided by the Grand Ole Opry, it connotes the Grand Ole Opry.  Similarly, when it is used in connection with the country music entertainment services provided by other organizations, like Dennis Hilton's Country Shindig Opry Show, Lee Mace's Ozark Opry, the Grapevine Opry, the Union Mill Opry, the Country Hayride Opry, and the Kansas City Opry, it connotes those organizations

19
 Lee Mace's Ozark Opry and Denny Hilton's Country Shindig Opry have competed directly in the area surrounding Osage Beach, Missouri since 1973.  The public is cognizant of the different ownership of the two shows and has exhibited no confusion in distinguishing them.  The defendants' use of the business title "Denny Hilton's Country Shindig Opry Show" has not caused confusion in the minds of the public with respect to the Grand Ole Opry or any of the marks owned by WSM.  Persons who attend the Ozark Opry or the Country Shindig Opry Show do not believe they are attending a performance of the Grand Ole Opry.  Some customers of the Ozark Opry have inquired as to whether there is some association between the Ozark Opry and Grand Ole Opry.  The Ozark Opry is a licensee of WSM.  The Country Shindig Opry is not

3
 The court might also have given little weight to WSM's witnesses because of the nature of the buyer understanding test itself.  The issue is what the trademark means to the purchasing public;  not what it means to those in the industry.   Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1369 (10th Cir.1977), cert. denied, 434 U.S. 1052, 98 S.Ct. 905, 54 L.Ed.2d 805 (1978).  The Grand Ole Opry stars are a part of the country music industry, not members of the purchasing public

4
 If a registered mark at any time becomes generic, the Lanham Act, 15 U.S.C. Sec. 1064(c) (1983), provides for the cancellation of that mark's registration

5
 Even a generic mark may be entitled to protection from unfair competition if the mark is "so associated with its goods that the use of the same or similar marks by another company constitutes a representation that its goods came from the same source."   Metric, supra, 635 F.2d at 714

6
 Since the Missouri common law of unfair competition is in accord with federal law, i.e., the right to the exclusive use of a name is entitled to protection when use by another is likely to cause confusion in the minds of the public, Missouri Federation of the Blind v. National Federation of the Blind, 505 S.W.2d 1 (Mo.App.1973);  A.J. Reach Co. v. Simmons Hardware Co., 155 Mo.App. 412, 135 S.W. 503 (1911);  the district court's denial of WSM's common law claim of unfair competition is also affirmed

7
 Although the district court did refer to its finding of no likelihood of confusion in denying WSM's common law unfair competition claim, the court's rejection of WSM's anti-dilution claim was based on its finding that "opry" is not distinctive


J. S11010/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: J.W.D.,                :    IN THE SUPERIOR COURT OF
A JUVENILE                               :          PENNSYLVANIA
                                         :
APPEAL OF: J.W.D., A JUVENILE            :
                                                   No. 1399 EDA 2014

               Appeal from the Dispositional Order, April 9, 2014,
             in the Court of Common Pleas of Montgomery County
                        Juvenile Division at No. 2014-164

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 03, 2016

        J.W.D.1 appeals from the juvenile dispositional order entered April 9,

2014, adjudicating him as a delinquent, placing him on probation, and

releasing him to the custody of his mother, after he was adjudged

delinquent by the trial court for carrying a concealed firearm without a

license2 and possessing a firearm while underage.3 We affirm.4

1
  We have changed the name to initials in the caption and throughout this
memorandum to preserve the minor’s privacy.        See in the Interest
of R.C., 628 A.2d 893, 894 (Pa.Super. 1993).
2
    18 Pa.C.S.A. § 6106(a)(1).
3
    18 Pa.C.S.A. § 6110.1
4
  Although we note that the trial court devotes the majority of its opinion
expressing its displeasure with the 2007 amendments to Pa.R.A.P. 1925, we
need not address that issue here.
J. S11010/16

     The record reflects that at approximately 9:13 p.m. on March 11,

2014, Officer Michael Breslin responded to a 911 call concerning a small

group of males with a gun.    (Notes of testimony, 3/21/14 at 5-6.)     After

arriving at the location, Officer Breslin encountered three boys, including

J.W.D. (Id. at 7-8.) The officer testified that as he spoke with one of the

boys, he saw J.W.D. -- who was 10 to 15 feet away -- take a couple of steps

back behind a red S.U.V. and duck down behind the engine block, at which

time the officer heard a noise that he described as “a thud,” “something

heavy, possibly metal, striking the car door, a metal door” and then he

heard “something metal slide against the pavement.”          (Id. at 9-11.)

Officer Breslin further testified that after J.W.D. returned from behind the

S.U.V. and joined the officer and the two other boys, only J.W.D. appeared

nervous. (Id.) After backup arrived, Officer Breslin testified that he looked

under the red S.U.V. and saw a black 57 revolver on the ground only a

couple of feet from where J.W.D. was crouched down.          (Id. at 11-12,

29-30.) The officer further testified that no one else was in the vicinity at

the time and that there was nothing else on the ground other than the gun.

(Id. at 11-12.)

     On appeal, appellant raises the following issue:

                  Whether the evidence was insufficient as a
           matter of law with regard to the charges of
           18 Pa.C.S. §6106(a) (relating to carrying firearms
           without a license) and 6110.1 (relating to possession
           of firearm by minor) in that they are not supported
           by legally sufficient evidence of record.

                                    -2-
J. S11010/16

Appellant’s brief at 8.

            Our standard of review for a challenge to the
            sufficiency of the evidence is well settled. We must
            view all the evidence in the light most favorable to
            the verdict winner, giving that party the benefit of all
            reasonable inferences to be drawn therefrom.
            Additionally, it is not the role of an appellate court to
            weigh the evidence or to substitute our judgment for
            that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004) (citations omitted).

      The Crimes Code defines carrying a firearm without a license as

follows:

            (a)    Offense defined.

                   (1)    Except as provided in paragraph (2)
                          [relating to those otherwise eligible to
                          carry a firearm], any person who carries
                          a firearm in any vehicle or any person
                          who carries a firearm concealed on or
                          about his person, except in his place of
                          abode or fixed place of business, without
                          a valid and lawfully issued license under
                          this chapter commits a felony of the third
                          degree.

18 Pa.C.S.A. § 6106(a)(1).

      The Crimes Code defines possessing a firearm while underage as

follows:   “Except as provided in subsection (b) [relating to parental

supervision and consent and lawful hunting or trapping], a person under

                                      -3-
J. S11010/16

18 years of age shall not possess or transport a firearm anywhere in this

Commonwealth.” 18 Pa.C.S.A. § 6110.1.

      Here, the record demonstrates that the evidence admitted at the

adjudication proceeding, as well as all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, was sufficient to support all elements of the offenses of

carrying a firearm without a license and possessing a firearm while

underage.    The trial court believed Officer Breslin’s testimony and found

appellant incredible.     (Notes of testimony, 3/21/14 at 60-63.)             As

fact-finder, the trial court was free to do so.         We, therefore, decline

appellant’s invitation to substitute our judgment for that of the trial court, as

that is not our role.

      Juvenile dispositional order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2016

                                      -4-


313 F.Supp. 1228 (1970)
John NUEST, Plaintiff,
v.
WESTINGHOUSE AIR BRAKE COMPANY, a foreign corporation, Travelers Insurance Companies, Inc., a foreign corporation, Lodge 158, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths Forgers and Helpers, a labor organization, and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, a labor organization, Defendants.
Civ. No. P-3121.
United States District Court, S. D. Illinois, N. D.
June 19, 1970.
*1229 *1230 James G. Hatcher, Peoria, Ill., for plaintiff.
Lyle W. Allen, Peoria, Ill., for Travelers Ins. Co.
Timothy W. Swain, II and Mishael O. Gard, Peoria, Ill., for Westinghouse Air Brake Co.
Harold Gruenberg and J. F. Souders, St. Louis, Mo. for Intl. Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths Forgers & Helpers.

OPINION AND ORDER
ROBERT D. MORGAN, District Judge.
The amended complaint herein, in a single count, seeks damages against all defendants, jointly and severally, on account of alleged breaches of successive collective bargaining agreements by defendant Westinghouse Air Brake Company (herein WABCO), plaintiff's former employer, on account of alleged failure of defendant unions (herein Lodge 158 and International, respectively, or the unions) to fairly represent him as his collective bargaining representative, and because Travelers Insurance Companies, Inc. (herein Travelers) is apparently underwriter of certain insurance benefits provided in the collective bargaining agreements.
The amended complaint was tendered for filing and served on defendants after hearing on the motions decided hereby. Motion for leave to file same was not immediately granted, but the defendants have all addressed themselves to it by renewed and supplemental motions and memoranda of authorities. It simply adds specifications of alleged wrongs, leaves out the former allegation that plaintiff is "totally, permanently, completely and wholly disabled," and alleges that Travelers is a necessary party under Rule 19, F.R. Civ.P. Consequently, this court, on June 15, 1970, did enter an ex parte order permitting it to be filed. The court herein treats all matters of substance in any of the motions attacking the complaint as applicable to the amended complaint; and that document should hereafter be considered by all concerned as if it had been filed by plaintiff in the first instance.
Travelers moves for dismissal as to it essentially because there are no allegations of fact indicating any liability on its part to the plaintiff; and that motion must be allowed as it was originally at the hearing on April 9, 1970. Whatever *1231 potential liability Travelers might have as underwriter of any of WABCO's collective bargaining obligations would clearly depend on matters not before the court or necessary for litigation in this action.
Local 158 and WABCO have filed motions to dismiss or in the alternative for summary judgment, and International has moved to dismiss.[1] These motions have been renewed and supplemented as indicated above. Several affidavits in support of and in opposition to said motions have been filed and supported by copies of pertinent documents which are sworn to be true and correct. The sworn material before the court produces a file at this stage in the proceeding approaching three inches in thickness, and includes, without factual dispute, the two successive and applicable collective bargaining agreements, the texts of two decisions and awards by distinguished labor contract arbitrators of grievances handled by the unions on behalf of plaintiff, the constitution of defendant International, the WABCO Insurance Program and Pension Plan, and a Social Security examiner's decision, dated May 1, 1969, to continue disability benefits to plaintiff which began August 31, 1966. The court also has before it a "Summary of Employment, Disability and Grievance History of John Nuest with Westinghouse Air Brake Company and Predecessor Company" from 1942 to September 25, 1969, when his release from employment was sustained by arbitrator M. S. Ryder (and including information that a workmen's compensation proceeding begun by plaintiff on December 9, 1969, to reopen an award against WABCO, was continued on March 10, 1970), sworn to be true and correct by W. W. Kimmel, Vice President of WABCO (Construction Equipment Division), which is largely uncontroverted by plaintiff, except possibly in regard to WABCO conclusions therein or sought to be inferred or implied therefrom. In addition, there is a volume of miscellaneous correspondence between plaintiff and his union officials, grievance and workmen's compensation documentation, etc. Because of this material which has been presented and not excluded by the court, it seems apparent that under Rule 12(b), F.R. Civ.P., this court must dispose of the pending motions as provided in Rule 56, F.R. Civ.P. To that end the parties were given an opportunity to present any additional pertinent material within 10 days after the hearing. All material filed has had the careful consideration of the court, and the complexities are immense.
Jurisdiction is claimed under Section 301 of the National Labor Relations Act, 29 U.S.C. § 185, the suit being for violations of a collective bargaining agreement and on account of alleged diversity of citizenship under 28 U.S.C. § 1332 (a). Complete diversity does not exist to sustain jurisdiction under 28 U.S.C. § 1332(a), but jurisdiction under 29 U.S.C. § 185(a), if otherwise proper, may be founded here "without respect to the amount in controversy or without regard to the citizenship of the parties."
What appears to this court to be the principal substance of the uncontroverted facts before the court follow in lettered paragraphs.
(a) Plaintiff had been an employee of WABCO and its predecessor corporation and a member in good standing of Lodge 158 and International since January 11, 1942. During the year 1964, plaintiff was instrumental in organizing a wildcat strike, which fact was unknown to WABCO until admitted in the complaint herein. This strike arose out of an alleged failure of Lodge 158 to adequately represent its employees to WABCO, and resulted in the resignation of certain officers of Lodge 158.
(b) Plaintiff was injured on April 19, 1965, in his employment, requiring an operation to his back, and returned *1232 to employment on April 29, 1966 for part of a day, but because of back trouble left again and continued to have trouble, involving much medical consultation and two more operations, for over two years, during which there was a discharge from employment, which was reduced by grievance settlement to a 30-day suspension for absenteeism. Plaintiff returned to full employment with WABCO on August 2, 1968, and continued in such employment until November 14, 1968, when WABCO terminated his employment because of his then disability to safely perform work which it had for him.
(c) At all times material hereto, WABCO, Lodge 158 and International were parties to a collective bargaining agreement, the latest of which was dated September 28, 1967, which succeeded a previous agreement entered into on September 2, 1964. These agreements provided for the terms and conditions of employment of employees within the bargaining unit and both agreements provided for similar employee grievance procedures, but it should be noted that only the union, not the employee himself, could invoke the higher stages of the grievance machinery which included arbitration.
(d) Plaintiff was paid a total of one year's "sick leave" by the company, under the union contract, between April, 1965 and January 18, 1967, on account of his injury of April 19, 1965.
(e) Plaintiff refused assigned work for which the WABCO medical director released him in February, 1968, which WABCO interpreted as self-severance. Local 158 carried a grievance over this separation through arbitration, resulting in reinstatement without compensation for time lost, because, as the arbitrator said, "he was the moving party in creating the condition" which prevented return to employment, and directing reemployment without seniority loss provided he accept temporarily a job the medical director decided he could perform.
(f) Plaintiff filed a charge of unfair labor practice against WABCO before the National Labor Relations Board on March 6, 1968, charging discharge for union activity, but shortly withdrew it.
(g) An arbitrator of the Illinois Industrial Commission, in workmen's compensation proceedings filed by plaintiff, found two separate injuries due to accidents on April 19, 1965 and April 29, 1966, respectively.
(h) Plaintiff was finally released from employment by WABCO on November 14, 1968, because of his physical condition, and this termination was sustained by a grievance arbitrator in a proceeding carried forward on plaintiff's behalf by Lodge 158 with the help of International.
The gravamen of the amended complaint against WABCO is that it breached the successive collective bargaining agreements in a number of specified ways, causing substantial financial loss to plaintiff and against Lodge 158 and International in that they allegedly have failed and refused to fairly represent the plaintiff in specified wilful and intentional instances and ways, including collusion with WABCO to injure plaintiff and deny him his contract rights.
This court is of the belief that the opinion of the Supreme Court of the United States in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) is directory here. While distinguishable in actual holdings in several respects, if one is so inclined, the opinion of Mr. Justice White there, speaking for a majority of the Court, reviews the federal labor law thoroughly in this type of case, deals with the pre-emption doctrine relied upon by defendants here and its practical limits and exceptions, the problem of fair union representation generally, and, in general, charts a course for district courts in this type of case. In Vaca the Supreme Court recognized the validity of such joinder of employer and union defendants as exists here when the Court stated (386 U.S. at 187, 87 S.Ct. at 915) that:
"* * * it is obvious that the courts will be compelled to pass upon whether *1233 there has been a breach of the duty of fair representation in the context of many § 301 breach-of-contract actions."
Also in Vaca the Supreme Court made it clear that whether such a breach of duty on the part of the union or breach of contract on the part of the employer is also an unfair labor practice is inconsequential. The Court stated (386 U.S. at 183-184, 87 S.Ct. at 913) that:
"* * * courts have jurisdiction over suits to enforce collective bargaining agreements even though the conduct of the employer which is challenged as a breach of contract is also arguably an unfair labor practice within the jurisdiction of the NLRB. Garmon and like cases have no application to § 301 suits."
Vaca seems to make it clear, and it is held here, that this court's jurisdiction is not pre-empted by that of the National Labor Relations Board.
It is also urged on behalf of defendants that relief is precluded by plaintiff's alleged failure to exhaust his remedies under the collective bargaining agreements. This court is not unmindful of the United Steelworkers of America Trilogy, 363 U.S. 564, etc., 80 S.Ct. 1343, etc., 4 L.Ed.2d 1403, etc., (1960), or that in Republic Steel Corporation v. Maddox, 379 U.S. 650 (1965), the Supreme Court held that federal labor policy requires an employee to at least attempt use of such grievance procedures before seeking other modes of redress. There are vital interests to be served on behalf of employers, unions, and employees the unions represent in seeing matters peaceably resolved at the quickest and easiest level possible, and it is manifest that Congress has deemed the most expeditious road to industrial peace to be through self-imposed solutions by labor and management. Again in Vaca, however, the Supreme Court recognized that because the contract procedures are devised and often controlled by the employer and the union, they may well prove unsatisfactory, as far as justice for an individual grievant is concerned. The Vaca opinion notes that one such situation arises when "the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union's wrongful refusal to process the grievance." (386 U.S. at 185, 87 S.Ct. at 914.) See also Slagley v. Illinois Central Railroad Company, 397 F.2d 546, 550 (7th Cir. 1968). As the Supreme Court stated in Vaca, 386 U.S. at page 190, 87 S.Ct. at page 916, the "wrongful refusal" must constitute a breach of the statutory duty of fair representation which "occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith."
As in Vaca, the plaintiff here has alleged a wrongful refusal to adequately process his grievances for pay for lost time prior to the 1968 reinstatement by arbitrator Luskin, for his alleged second injury and the possible sick pay related thereto, and for other insurance benefits; and, under the agreements involved here, the union had the sole power to invoke the higher stages of the grievance machinery. Also, the record is replete with attempts to have the higher stages of the grievance procedure initiated, and this satisfied the requirements of Maddox, supra. Therefore, this court is satisfied that the complaint does state a valid cause of action without requiring further exhaustion of contract remedies. The inappositeness of Stumo v. United Air Lines, Inc., 382 F.2d 780 (7th Cir. 1967), to this case is apparent. There was no "voluntary act" on the part of this plaintiff which in any way "thwarted the jurisdiction" of the procedures he sought to invoke.
The final ground, common to all the defendants, urged for dismissal, is that the allegations of the complaint constitute a collateral attack on arbitrator's decisions, which is impermissible in view of the provisions for review provided in *1234 9 U.S.C. § 12, and 10 Ill.Rev.Stat. § 112 (1969).
This court does observe that both of the collective bargaining agreements under consideration here provide that an arbitrator's award shall be final and binding on all parties, and the court is conscious that the federal policy of settling labor disputes by arbitration would be undermined if the courts reviewed the merits of an award. United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). However, an arbitrator's award is binding only on the issues submitted to him and decided by him within the scope of the powers enumerated in the agreement. If the arbitrator exceeds his authority under the contract, the decision is void and unenforceable to the extent such power is exceeded. See United Steelworkers, supra, at 597, 80 S.Ct. 1358; Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert Company, 330 F.2d 562 (8th Cir. 1964).
From the allegations of the complaint material to the union's position, it is patently clear that they do not involve the testing of the merits of the arbitrator's decisions; rather, they involve the adequacy of the bargaining representative in representing the plaintiff. Clearly, therefore the allegations do not constitute a collateral attack. By matching the allegations of the complaint material to WABCO with the decisions rendered by the two arbitrators, it also becomes patently clear that, with the exception of the claim for back pay in the Luskin arbitration, the claims involved have never been subjects of arbitration, and the plaintiff alleges that arbitrator Luskin exceeded his authority in determining that there should be no back pay. Therefore, the allegations do not constitute a collateral attack; and the statutory provisions cited, under these circumstances, have no application here. This ground presented by all defendants, therefore, is no bar to maintaining this suit.
Lodge 158 and International urge two additional grounds for dismissal. The first is that the allegations of the complaint concerning conspiracy or collusion do not plead specific and detailed facts as required by Rule 9(b), F.R. Civ.P. This ground is without substantial merit. Not only must this rule be considered in light of the whole spirit of modern federal "notice" pleading, but also the gravamen of the complaint, as shown by the documents and exhibits before the court, is the charge of denial of fair representation, not simply the alleged collusion as such. It appears that the "conspiracy" allegation was included to indicate motive or bad faith. The second ground, plaintiff's failure to exhaust his internal union remedies under the International Union Constitution, is also without merit. The plaintiff did attempt to use this channel by charging his Business Manager of Lodge 158 with violating his duties in connection with the representation given the plaintiff in his grievance for an additional year of disability benefit. Plaintiff also appealed a ruling by an International representative that plaintiff was ineligible to hold a Lodge 158 office in 1969 and had several exchanges of correspondence with International officers which got him nowhere. He alleges that further pursuit in this area would be futile. The considerations discussed hereinabove concerning the exhaustion of remedies under the collective bargaining agreements and the disposition thereof seem equally applicable to the exhaustion of inter-union remedies. Therefore, this ground cannot sustain either motion.
This court may grant summary judgment only if it is clearly apparent that no genuine issue of material fact exists as to which reasonable minds could differ, Practical Construction Company v. Granite City Housing Authority, 416 F.2d 540, 544 (7th Cir. 1969), and that the movant is entitled to judgment as a matter of law. Rule 56, F.R. Civ.P.
*1235 As stated hereinabove, essential to plaintiff's cause of action against the unions is the proof of conduct which is "arbitrary, discriminatory, or in bad faith." Vaca, supra, 386 U.S. at 190, 87 S.Ct. at 916. There are conflicting affidavits on this issue. These conflicting affidavits, together with the other documents and exhibits, present a material issue of fact on which the record is presently devoid of certainty. Such an issue precludes the granting of summary judgment and trial must be had thereon, at least if the basic § 301 action against WABCO survives.
Each of the grounds raised by WABCo for dismissal of the complaint or for summary judgment has been disposed of hereinabove. The allegations of the complaint charging WABCO with breaches of the collective bargaining agreements, however, raise other issues of possible lack of jurisdiction over the subject matter, of which this court must take cognizance under Rule 12(h), F.R. Civ.P.
The threshold issue is whether this court has any jurisdiction to determine the merits of the allegations of the complaint involving interpretation or application of the terms of the collective bargaining agreements. If the allegations seek only the enforcement of clear terms of such agreements, devoid of any questions of interpretation or application, then the court may properly reach the merits of the claims. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903 (1967). Contradistinctively, if the claims involve the interpretation or application of such an agreement, this court's jurisdiction is strictly confined to the determination of whether or not the dispute is "arbitrable." United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 569, 80 S.Ct. 1343 (1960). Under the latter circumstances, judicial inquiry reaches only to the issue of whether the claim is governed by the substantive provisions of the agreement. If the claim is so governed, the authority of the court ends since collective bargaining agreements should be construed and applied by labor arbitrators and not by the courts. In re Jackson 424 F.2d 1220 (7th Cir. March 26, 1970), and cases there cited.
It is patently clear that perhaps the major parts of plaintiff's claims against WABCO involve an ascertainment of the relative rights of the company and the employee under the collective bargaining agreement and, therefore, are outside of the scope of this court's jurisdiction. Such parts of plaintiff's claim are for disability insurance, disability pension, and sundry sickness and accident health benefits for himself and his dependents allegedly due and owing, under the 1967 collective bargaining agreement and the benefit plans incorporated therein by reference, in connection with his final termination on November 14, 1968. The validity of plaintiff's actual termination itself was the subject of a union handled grievance which ultimately went to arbitration with a binding decision that the plaintiff was validly discharged, but the issues of the applicability of the benefit plans were not submitted to the arbitrator and he properly abstained from considering them.
The issue of whether or not these claimed benefits are due the plaintiff under the substantive provisions of the agreement, and, if so to what degree, clearly involves the interpretation of the 1967 agreement and the benefits incorporated therein. These claims, therefore, are ones properly for an arbitrator to decide and this court has no jurisdiction to reach their merits. It was the arbitrator's judgment and all that it connotes that was bargained for, not the court's. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343 (1960). The Supreme Court in Vaca v. Sipes, 386 U.S. 171, 196, 87 S.Ct. 903 (1967), clearly stated that an order compelling arbitration is an available remedy and this court is fully satisfied that such a remedy is both necessary and proper for the claims discussed above.
*1236 Plaintiff's claim for some five months' "back pay" under the Luskin award raises the second jurisdictional issue of whether this court may consider the merits of an arbitrator's award. Plaintiff was terminated on February 18, 1968, and a grievance thereon was ultimately arbitrated with a decision that the plaintiff had been unjustifiably discharged and that he should be returned to employment with full seniority rights "but without any back pay." WABCO seeks summary judgment on the ground that the 1967 agreement provides that the arbitrator's decision is final and binding. Unless this award manifests a clear infidelity to the arbitrator's obligation of drawing the essence of the award from the collective bargaining agreement, this court must refuse to substitute its judgment on the merits for that of the arbitrator. Such an infidelity occurs, however, where the arbitrator clearly exceeds the authority expressed in the agreement or deviates from the unambiguous provisions contained therein. When this occurs, the facet of the decision which exceeds the authority is void and unenforceable. See United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 80 S.Ct. 1358 (1960); Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert Company, 330 F.2d 562 (8th Cir. 1964).
Article VII of the 1967 collective bargaining agreement provides in pertinent part that:
"The arbitrator * * * shall be without power to add to, subtract from, or modify terms of this Agreement."
Section 2(c) of the same article provides in part that:
"If an employee is found by this procedure to have been unjustifiably discharged, he shall be reinstated and compensated for time lost."
The awards by the arbitrator that the plaintiff was unjustifiably discharged and must be restored to employment "but without back pay" are patently inconsistent, under the clear terms of that agreement quoted above. In the latter determination, the arbitrator clearly deviated from the unambiguous terms of Section 2(c) of the agreement and went beyond the scope of his powers as limited by the agreement. The parties accepted the reinstatement award, and the latter determination constitutes an infidelity to the arbitrator's obligations on the face of his award. Accordingly, that part of the award is void and unenforceable and the question of back pay, and the amount thereof, if any, remains open. Since this is simply a matter of proof of circumstances and computation, if any, not interpretation of the agreement, this court believes it does have jurisdiction to supplement and enforce the award and this point furnishes no basis for allowance of the WABCO motion. It is recognized that if plaintiff can make no showing of readiness and ability to work during the period involved, he may be entitled to no pay for this period, and that may have been what arbitrator Luskin concluded, but there is no showing that the problem was considered in this light. He appears to have denied back pay as punishment for initial recalcitrance by plaintiff, and this was beyond his power under the agreement.
The final issue involves the claim against WABCO for an additional year of disability benefit due for an alleged second and separate injury sustained on April 29, 1966. The documents and exhibits before the court show that the grievance of this claim under the 1964 collective bargaining agreement was settled at the fourth step of the grievance procedure by agreement between WABCO and the unions short of arbitration. The claim was denied because clear proof was lacking that such injury was new and not a continuation of the prior injury. Provision was made for reopening the grievance if the plaintiff could produce convincing evidence of a new injury at a later date. Some new evidence was submitted at a later date, and an Industrial Commission Arbitrator in *1237 workmen's compensation proceedings did find two separate injuries, but both Lodge 158 and WABCO refused to pursue the grievance further or take it to arbitration. WABCO maintains that, under these circumstances, it was not required to pursue the grievance further and that this claim should be dismissed for failure to state a claim upon which relief can be granted against it.
Vaca and prior cases make it clear that the individual employee does not have an absolute right to have his grievance taken to arbitration and that the settlement process is essential to preserve the union's authority as well as systematic negotiation and disposition of grievances. As stated in Vaca, supra, 386 U.S. at 192, 87 S.Ct. at 917-918, a contrary disposition "would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully." The union's statutory duty of fair representation protects the individual employee from arbitrary abuses of the settlement procedures and, therefore, if an abuse occurred, the proper mode of redress is in the context of allegations of lack of fair representation. Such allegations have been sustained for trial hereinabove and whatever abuse may have occurred can be remedied thereby against the unions. The allegations against WABCO alone, as stated, could not be said to state a claim upon which relief could be granted against it because what it did had union approval. However, in this action against WABCO and the unions, the allegations of conspiracy and collusion make a judgment against all three, jointly and severally, a possibility on proof of any such joint intentional wrong to the plaintiff. See Vaca 386 U.S. at p. 193, 87 S.Ct. 903. Accordingly, this ground of the WABCO motion does not justify dismissal of this charge against it.
It should go without saying, of course, that the court does not imply hereby any decision on the merit or lack of merit with respect to any of plaintiff's claims. The court decides simply that there are several disputed issues of material fact which preclude summary judgment.
Accordingly, the court hereby enters the following:

ORDER
1. The court accepts jurisdiction of the parties and the subject matter of the action.
2. Travelers motion to dismiss filed March 9, 1970, as supplemented April 21, 1970, is allowed.
3. All other motions to dismiss or in the alternative for summary judgment, as supplemented, are denied.
4. WABCO, Lodge 158 and International are directed to submit to arbitration under the terms of their collective bargaining agreement, with appropriate participation by plaintiff, any claims by plaintiff for entitlement to separation, insurance, disability, pension, or other benefits under said agreement in relation to final termination of his employment on November 14, 1968, not including any back pay which may be due on account of prior reinstatement or any additional year of sick pay on account of alleged second injury, and to promptly file in this court, captioned for this case, a copy of the opinion and award of the arbitrator when received.
5. Proceedings in this action shall be and are hereby stayed pending such arbitration, provided, however, that if final award is not filed herein within ninety (90) days from the date of this order, the parties hereto shall jointly, or separately, file written report on status with this court.
6. The apparent issues of possible back pay under the Luskin award and possible failure of fair representation of plaintiff by Lodge 158 or the International, or both, including possible collusion or conspiracy with WABCO, are reserved for litigation in this action, and said defendants shall file their respective answers to the amended complaint herein within twenty (20) days after receipt of the arbitrator's award *1238 mentioned in paragraph 4 above, noting therein the allegations of said amended complaint which need not be answered because disposed of by such award.
NOTES
[1]  Plaintiff's motions for continuance and for temporary injunction were denied at the time of hearing and his motions to produce are subject to local rule of court No. 11, with which there is no showing of compliance.


Nebraska Supreme Court Online Library
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08/11/2017 12:08 AM CDT

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                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                        J.S. v. GRAND ISLAND PUBLIC SCHOOLS
                                                   Cite as 297 Neb. 347

                                        J.S., appellant, v. Grand Island
                                            Public Schools, appellee.
                                                     ___ N.W.2d ___

                                           Filed July 28, 2017.    No. S-16-875.

                1.	 Jurisdiction: Appeal and Error. A jurisdictional question which does
                    not involve a factual dispute is determined by an appellate court as a
                    matter of law.
                2.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
                    tion of law, for which an appellate court has an obligation to reach
                    an independent conclusion irrespective of the decision made by the
                    court below.
                3.	 Administrative Law: Judgments: Appeal and Error. A judgment or
                    final order rendered by a district court in a judicial review pursuant to
                    the Administrative Procedure Act may be reversed, vacated, or modified
                    by an appellate court for errors appearing on the record.
                4.	 ____: ____: ____. When reviewing an order of a district court under
                    the Administrative Procedure Act for errors appearing on the record, the
                    inquiry is whether the decision conforms to the law, is supported by com-
                    petent evidence, and is neither arbitrary, capricious, nor unreasonable.
                5.	 Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
                    sented for review, it is the power and duty of an appellate court to deter-
                    mine whether it has jurisdiction over the matter before it, irrespective of
                    whether the issue is raised by the parties.
                6.	 Jurisdiction: Service of Process: Parties. The voluntary appearance
                    of a party is equivalent to service of process for purposes of per-
                    sonal jurisdiction.
                7.	 Jurisdiction: Words and Phrases. Personal jurisdiction is the power of
                    a tribunal to subject and bind a particular entity to its decisions.
                8.	 ____: ____. Subject matter jurisdiction is the power of a tribunal to
                    hear and determine a case in the general class or category to which the
                    proceedings in question belong and to deal with the general subject mat-
                    ter involved.
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             Nebraska Supreme Court A dvance Sheets
                     297 Nebraska R eports
                  J.S. v. GRAND ISLAND PUBLIC SCHOOLS
                             Cite as 297 Neb. 347

 9.	 Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
     judicial tribunal by either acquiescence or consent, nor may subject mat-
     ter jurisdiction be created by waiver, estoppel, consent, or conduct of
     the parties.
10.	 Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
     at any time by any party or by the court sua sponte.
11.	 ____: ____. A court action taken without subject matter jurisdiction
     is void.
12.	 Statutes: Legislature: Intent. In construing a statute, a court must
     determine and give effect to the purpose and intent of the Legislature
     as ascertained from the entire language of the statute considered in its
     plain, ordinary, and popular sense.
13.	 Appeal and Error. The right of appeal in Nebraska is purely statutory.
14.	 Statutes: Appeal and Error. Unless a statute provides for an appeal
     from the decision of a quasi-judicial tribunal, such right does not exist.
15.	 Jurisdiction: Statutes: Appeal and Error. The requirements of a stat-
     ute underlying a right to appeal are mandatory and must be complied
     with before the appellate court acquires jurisdiction of the subject matter
     of the action.
16.	 Actions: Jurisdiction: Appeal and Error. Where a district court has
     statutory authority to review an action, the district court may acquire
     jurisdiction only if the review is sought in the mode and manner and
     within the time provided by statute.
17.	 Administrative Law: Schools and School Districts: Appeal and
     Error. Appeals from the district court under the Student Discipline Act
     are governed by the Administrative Procedure Act.
18.	 Administrative Law: Jurisdiction: Appeal and Error. The filing
     of the petition and the service of summons are the two actions nec-
     essary to establish the jurisdiction of the district court to review the
     final decision of an administrative agency under the Administrative
     Procedure Act.

  Appeal from the District Court for Hall County: Teresa K.
Luther, Judge. Appeal dismissed.

   Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
Stehlik, P.C., L.L.O., for appellant.

  Jeanelle R. Lust and Paul B. Donahue, of Knudsen,
Berkheimer, Richardson & Endacott, L.L.P., for appellee.
                             - 349 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
              J.S. v. GRAND ISLAND PUBLIC SCHOOLS
                         Cite as 297 Neb. 347

   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.

  Funke, J.
                     NATURE OF CASE
   This case concerns a 15-day suspension of a student for a
post made on a social media website from her home that, in
part, caused a substantial disruption at her school. The super-
intendent and the school board each upheld the suspension.
On appeal under the Student Discipline Act, Neb. Rev. Stat.
§ 79-254 et seq. (Reissue 2014), the Hall County District Court
affirmed, finding the suspension did not exceed the authority
provided by §§ 79-264 and 79-267.

                        BACKGROUND
   On Sunday, April 3, 2016, a group of students from Barr
Middle School (Barr), which is part of the Grand Island Public
Schools (GIPS), were communicating on a social media web-
site. A post was made anonymously: “Tomorrow gonna be
hella fire [fire emoji] be there (School).” This post was fol-
lowed by another anonymous post: “Don’t show up to school
tomorrow [gun emoji].” That evening, the Barr administration
was notified by the Grand Island Police Department of these
anonymous postings.
   The following morning, April 4, 2016, extra security was
present at the school and the police and Barr staff searched the
school for any potential threats. During the morning, the school
received over 100 telephone calls from parents concerned
about safety. That day, 17 students were checked out of school
and four of them remained checked out on April 5.
   Police and Barr staff conducted interviews of students to
identify who had made the anonymous postings. J.S., a stu-
dent at Barr, was one of the students interviewed. During
her interview, she admitted to making the “hella fire” post.
The post with the gun emoji was not made by J.S., and no
evidence was uncovered that she had any connection with the
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           Nebraska Supreme Court A dvance Sheets
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              J.S. v. GRAND ISLAND PUBLIC SCHOOLS
                         Cite as 297 Neb. 347

second post. Barr’s principal sent J.S. home and suspended
her for 15 days.
   J.S. requested an administrative hearing to contest her
removal, which hearing was held on April 14, 2016.
   At the administrative hearing, Barr’s principal testified that
when he talked with J.S. and her parents on April 4, 2016, she
stated that she did not know why she made the post or could
not explain it to them. He also stated that J.S.’ social media
posting was the sole reason for her removal from school and
that at the time of J.S.’ removal, there were no further threats
to the safety of other students by her.
   J.S. testified that on Sunday evening, April 3, 2016, she was
at home using her cell phone to communicate with other stu-
dents on a social media website. The context of the discussion,
when she made her post, was about skipping school the next
day. She explained that “hella fire” means “good” or “cool.”
Accordingly, she stated that her post was a sarcastic statement
that school would be good or cool the next day and that the
other students should be there.
   After the administrative hearing, the superintendent of GIPS
upheld J.S.’ suspension. J.S. next appealed to the GIPS board
of education (Board). In May 2016, the Board held a hearing
and also upheld the suspension.
   J.S. timely filed a petition with the district court to appeal
the Board’s decision. After the filing of the petition, the
Board filed a voluntary appearance, under Neb. Rev. Stat.
§ 25-516.01 (Reissue 2016). Specifically, the voluntary appear-
ance stated, “[GIPS] acknowledges receipt of the [petition],
enters its Voluntary Appearance . . . , and waives service of
Summons pursuant to Neb.Rev.Stat. § 79-289.” The record
does not show that the Board was ever served with a copy of
the petition.
   After a hearing, the court affirmed J.S.’ 15-day suspen-
sion, stating that it did not exceed the authority provided by
§§ 79-264 and 79-267. The court reasoned that J.S.’ posting
was open to several interpretations, including one of violence,
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                   J.S. v. GRAND ISLAND PUBLIC SCHOOLS
                              Cite as 297 Neb. 347

and that it in fact prompted a posting that could also be con-
sidered threatening or violent. Therefore, it found that “[J.S.’]
posting on social media set in motion a series of events that
cause[d] substantial disruption to the school environment.”
J.S. appealed.

                  ASSIGNMENT OF ERROR
  J.S. assigns, restated, that the district court erred in affirming
her suspension.

                   STANDARD OF REVIEW
   [1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.1
   [2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.2
   [3,4] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act (APA) may be reversed, vacated, or modified by an appel-
late court for errors appearing on the record.3 When reviewing
an order of a district court under the APA for errors appearing
on the record, the inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.4
                         ANALYSIS
   [5] Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine

 1
      Medicine Creek v. Middle Republican NRD, 296 Neb. 1, 892 N.W.2d 74
      (2017).
 2
      Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
 3
      Medicine Creek, supra note 1.
 4
      Id.
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                   J.S. v. GRAND ISLAND PUBLIC SCHOOLS
                              Cite as 297 Neb. 347

whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties.5
   On appeal, a show cause order was issued ordering the
parties to provide authority to the court showing that the dis-
trict court obtained subject matter jurisdiction over the matter
under § 79-289. GIPS argues that the district court lacked
subject matter jurisdiction because a party cannot voluntarily
confer subject matter jurisdiction on a court,6 while J.S. asserts
that the Legislature allows courts to acquire subject matter
jurisdiction over a party by its compliance with § 25-516.01.
Further, J.S. contends that GIPS’ voluntary appearance waived
summons and acknowledged that it had obtained a copy of the
petition, so § 79-289 was satisfied.
   [6,7] To support her contention, J.S. points us to
§ 25-516.01(1), which states that “[t]he voluntary appearance
of the party is equivalent to service.” However, we have held
that the voluntary appearance of a party is equivalent to serv
ice of process for purposes of personal jurisdiction.7 Personal
jurisdiction is the power of a tribunal to subject and bind a
particular entity to its decisions.8
   [8-11] Subject matter jurisdiction is the power of a tri-
bunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to
deal with the general subject matter involved.9 Parties can-
not confer subject matter jurisdiction upon a judicial tribunal
by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or

 5
      Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284
      (2017).
 6
      Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563
      N.W.2d 345 (1997).
 7
      Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
 8
      Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013).
 9
      In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
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                   J.S. v. GRAND ISLAND PUBLIC SCHOOLS
                              Cite as 297 Neb. 347

 conduct of the parties.10 Lack of subject matter jurisdiction
 may be raised at any time by any party or by the court sua
sponte.11 A court action taken without subject matter jurisdic-
 tion is void.12
    Section 79-289(1) sets forth that proceedings for review
 under the Student Discipline Act pursuant to §§ 79-288 to
 79-292 shall be instituted by filing a petition in the dis-
 trict court of the county where the action is taken within 30
 days after the service of the final decisions by the school
 board or board of education under §§ 79-286 and 79-287.
 Further, § 79-289(3) requires that “[s]ummons shall be served
 as in other actions, except that a copy of the petition shall be
 served upon the board together with the summons.” (Emphasis
 supplied.)
    [12] We have held that in construing a statute, a court must
 determine and give effect to the purpose and intent of the
 Legislature as ascertained from the entire language of the stat-
 ute considered in its plain, ordinary, and popular sense.13
    [13-16] The right of appeal in Nebraska is purely statu
 tory.14 Unless a statute provides for an appeal from the deci-
 sion of a quasi-judicial tribunal, such right does not exist.15
 The requirements of the statute are mandatory and must be
 complied with before the appellate court acquires jurisdiction
 of the subject matter of the action.16 Where a district court has
 statutory authority to review an action, the district court may

10
      Id.
11
      Id.
12
      Id.
13
      Concordia Teachers College, supra note 6.
14
      Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
15
      Gage Cty. Bd. v. Nebraska Tax Equal. & Rev. Comm., 260 Neb. 750, 619
      N.W.2d 451 (2000).
16
      Boone Cty. Bd. v. Nebraska Tax Equal. & Rev. Comm., 9 Neb. App. 298,
      611 N.W.2d 119 (2000).
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                    J.S. v. GRAND ISLAND PUBLIC SCHOOLS
                               Cite as 297 Neb. 347

acquire jurisdiction only if the review is sought in the mode
and manner and within the time provided by statute.17
   [17,18] Appeals from the district court under the Student
Discipline Act are governed by the APA.18 The filing of the
petition and the service of summons are the two actions
necessary to establish the jurisdiction of the district court to
review the final decision of an administrative agency under
the APA.19
   In Concordia Teachers College v. Neb. Dept. of Labor,20 we
considered an appeal under the APA. In doing so, we reviewed
the language of Neb. Rev. Stat. § 84-917(2)(a) (Reissue 1994),
which provided in pertinent part:
      Proceedings for review shall be instituted by filing a
      petition in the district court of the county where the
      action is taken within thirty days after the service of
      the final decision by the agency. . . . Summons shall
      be served within thirty days of the filing of the petition
      in the manner provided for service of a summons in a
      civil action.
We held that in giving the statute its plain, ordinary, and
popular sense, it was apparent that the Legislature intended
that a summons be served within 30 days of the filing of
the petition for review as a prerequisite to the exercise by
the district court of its jurisdiction over the subject matter
on an appeal from an adverse decision of an administra-
tive agency.21
   The record indicated that the appellant in Concordia
Teachers College filed an amended petition, but failed to

17
      See, Butler Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 814
      N.W.2d 724 (2012); Essman v. Nebraska Law Enforcement Training Ctr.,
      252 Neb. 347, 562 N.W.2d 355 (1997).
18
      J.P. v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013).
19
      Essman, supra note 17.
20
      Concordia Teachers College, supra note 6.
21
      Id.
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serve the summons within 30 days and served it on the wrong
entity. We determined that the appellant failed to invoke the
subject matter jurisdiction of the district court.22 As a result,
the district court did not acquire authority to review a labor
commissioner’s ruling under the APA.23
   Similarly, in the instant case, the record indicates that J.S.
timely filed her petition with the district court. However, she
failed to serve a summons and a copy of the petition upon the
Board. As a result, only one of the two actions required by
§ 79-289 was accomplished. J.S.’ failure to comply with the
statutory requirements prevented the district court from obtain-
ing subject matter jurisdiction, and as a result, its decision
was void.
                        CONCLUSION
   J.S. failed to seek district court review in the mode and
manner provided by statute. By failing to serve the summons
and a copy of the petition upon the Board, she failed to timely
petition for review. The district court lacked subject matter
jurisdiction under the Student Discipline Act. We likewise lack
subject matter jurisdiction, and we dismiss J.S.’ appeal for
lack of jurisdiction.
                                            A ppeal dismissed.

22
      Id.
23
      Id.