Cite as 711 F.2d 141 (1983)
that questions relating to the definitional sections of the PMPA are substantive rather than jurisdictional might be analogized to holdings that the failure of certain interests to comport with the definition of securities set forth in the Securities Act of 1933 and the Securities Exchange Act of 1934 is a failure going to the merits of a case, and not to the jurisdiction of the federal courts. See Williamson v. Tucker, 645 F.2d 404, 416 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981); Black v. Payne, 591 F.2d 83, 86 n. 1 (9th Cir.), cert. denied, 444 U.S. 867, 100 S.Ct. 139, 62 L.Ed.2d 90 (1979).
Since the court below should have rejected Ernst’s suggestion of lack of subject-matter jurisdiction, the PMPA counts must be returned to that court for a determination on the merits. We do not exclude the possibility that these claims may be suitable for Rule 56 disposition. At this point, we need not review the lower court’s legal finding that branding authority is essential to the existence of a franchise relationship under the PMPA. Compare Lasko v. Consumers Petroleum of Connecticut, Inc., 547 F.Supp. 211, 219 (D.Conn.1981) (implying necessity of branding authority), and Blackwell v. Power Test Corp., 540 F.Supp. 802, 807 (D.N.J.1981) (same), aff’d mem., 688 F.2d 818 (3d Cir.1982), with Bsales v. Texaco, Inc., 516 F.Supp. 655, 661 (D.N.J.1981) (implying existence of “extraordinary situation” where branding authority not essential).
REVERSED and REMANDED.
John William SEE, Plaintiff-Appellant,
v.
Christopher DURANG and L.A. Stage Company, Defendants-Appellees.
No. 82–6102.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted June 7, 1983.
Decided July 22, 1983.
