III -- Claim for Damages Resulting From Termination of Plaintiff's lease
Paragraph 25 of the original Complaint concerns the termination of plaintiff's lease by Sinclair. It has been argued by Sinclair that this portion of the Complaint should be dismissed as not stating a cause of action under the anti-trust laws. See Green v. Victor Talking Mach. Co., 24 F.2d 378, 382, 59 A.L.R. 1091 (2nd Cir.1928), cert. den. 278 U.S. 602, 49 S. Ct. 9, 73 L. Ed. 530 (1928). Cf. Note: 'Proving Injury To Competition in Private Anti-Trust Suits Provoked by Concerted Refusals to Deal,' 68 Yale L.J. 949. The other defendants argued that this allegation did not refer to them at all.
Unilateral action in selecting customers is permitted by United States v. Colgate & Co., 250 U.S. 300, 39 S. Ct. 465, 63 L. Ed. 992 (1919). It is proper, therefore, to announce a policy (e.g., minimum pricing) and then decline to have further dealings with retailers who failed to abide by it, but it is not proper to do more than this. See United States v. Parke, Davis & Co., 362 U.S. 29, 43, 80 S. Ct. 503, 4 L. Ed. 2d 505 (1960). Unilateral refusal to deal always is permissible except where actual monopoly or intent to monopolize exists.
Alexander v. Texas Co., 149 F.Supp. 37, 43 (W.D.La.1957). Such unilateral refusal to deal is not per se a violation of Section 1 of the Sherman Act nor a violation of Section 2 thereof, unless actual monopoly or specific intent to monopolize has been properly pleaded and proved. Delaware Valley Marine Supply Company case, supra; Alexander v. Texas Company, 165 F.Supp. 53, 62-63 (W.D.La.1958).
The Complaint, as it originally read, did not connect the lease termination with the anti-trust violation allegation. Paragraph 25 did not allege that the cancellation was directly or indirectly involved in the alleged conspiracy, nor did it even mention the other defendants. However, paragraphs 25a and 25b of the Amended Complaint change the record by adding allegations which implicate the other defendants and charge that the lease termination was part of the alleged conspiracy.
For the reasons stated under II above, the present record does not permit the entry of judgment for the oil company defendants on this claim.
Unless some of all of the parties apply for the certification contemplated by 28 U.S.C.A. § 1292(b) within ten days, a pre-trial conference will be scheduled as soon as the defendant oil companies file Answers to the Complaint, as such Answers may disclose that it is possible to supplement the record to the extent that renewed Motions For Summary Judgment are feasible. Meanwhile, plaintiff should proceed promptly with his interrogatories (see letter of December 11) and any other discovery he wishes.
AND NOW, January 16, 1962, IT IS ORDERED that:
(1) the Motion For Summary Judgment of defendant Associated Petroleum Industries of Pennsylvania (Document No. 14) is granted in part and paragraphs 22 and 23 of the Complaint are dismissed;
(2) the Motions for Summary Judgment of defendants Sinclair, Gulf, Texaco and Humble (Document No. 14) are granted in part and paragraphs 22 and 23 of the Complaint are dismissed; and
(3) in all other respects, defendants' consolidated motions (Document No. 14) are denied.
SUR MOTION OF DEFENDANT ASSOCIATION TO AMEND JUDGMENT OR FOR SUMMARY JUDGMENT
(Document No. 29)
AND NOW, March 26, 1962, after consideration of the above Motion
(Document No. 29), the affidavit attached to that Motion, the briefs of plaintiff and defendant Association (Documents Nos. 49 and 50), the record and oral argument, IT IS ORDERED that the above Motion For Summary Judgment is granted and judgment shall be entered in favor of Associated Petroleum Industries of Pennsylvania, defendant, and against Pasquale Fiumara, plaintiff, with costs.
In the opinion sur defendants' consolidated motions (Document No. 27), it was stated that if defendant Associated had filed an affidavit stating that Associated had no participation in any of the transactions alleged in the Complaint to have occurred, and had not entered into any agreement or understanding with any of the other defendants with respect to any of the matters set forth in the Complaint, a Motion for Summary Judgment would have been granted Associated. An affidavit has now been filed
which sets forth such denials.
For the reasons stated in the opinion of January 16, 1962 (Document No. 27), defendant Associated is now entitled to summary judgment.
SUR DEFENDANT OIL COMPANIES' CONSOLIDATED MOTIONS (Document No. 41)
This case, in which the Amended Complaint alleges a conspiracy in violation of the Federal antitrust laws, is presently before the court on defendants' Motion To Amend the court's Order of January 16, 1962 (Document No. 27), and their Renewed Motion For Summary Judgment (see Document No. 41).
The Opinion of January 16, 1962 (Document No. 27), sets forth the pertinent facts. In the Order of the same date, the defendants' Motion For Summary Judgment was granted in part and denied in part.
Subsequent to that Order, the defendants filed Answers to the Complaint (Documents Nos. 30, 36, 40 and 43), the instant Motions (Document No. 41), and affidavits in support of said Motions (Documents Nos. 31, 33, 37, 39, 42 and 61-64).
The undersigned recognizes that it is most unusual to dismiss a Complaint on a Motion For Summary Judgment, but this is one of few exceptional cases where the record requires it.
At the time of the Opinion and Order of January 16, 1962 (Document No. 27), the court had before it allegations that the defendants conspired to adopt fair trade programs, that Sinclair brought an injunction suit against plaintiff pursuant to the claimed conspiracy, and that the other defendants instituted suits against their dealers who violated the fair trade minimum prices in furtherance of the conspiracy and in pursuance of 'illegal fixing of retail resale prices of their gasoline products.' Although the allegations were vague and contained conclusions, the Motion For Summary Judgment was not granted, partly because the allegations were not denied by the defendants by answer, affidavit, documentary evidence, or in any other method. The court stated at page 10 of its Opinion:
'If affidavits or other documentary material had been filed by defendant oil companies, it might well be that a motion for summary judgment could be granted. (Citing cases.)'
Subsequently, the defendants filed complete Answers, denying the allegations contained in the Amended Complaint.
Also, each oil company defendant filed an affidavit,
taken by a competent executive of the company, which squarely denies the above-mentioned conclusory allegations of plaintiff. These affidavits show that it was against the policy of each company to enter into any agreement with competitors relating to price fixing, that each company made its own decision to establish a minimum resale price schedule under the Pennsylvania Fair Trade Act, 73 P.S. § 7 et seq., and that the companies adopted the fair trade procedure at different times and not always at the same minimum price as had been set by the other oil companies.
The affidavits of defendants Humble, Gulf and Texaco also negate the conclusion of plaintiff that they had any knowledge of Sinclair's relations with Fiumara concerning the bringing of the injunction suit or the termination of the plaintiff's lease until the present suit was commenced. Defendants also filed affidavits (Documents Nos. 61-64) which show that they specifically excepted from their fair trade agreements sales to wholesalers of the type referred to in their answers (Documents Nos. 51-54) to plaintiff's Interrogatory No. 12 and which state the date on which they ceased fair trading in Pennsylvania.
The filing of these Answers and affidavits by defendants makes this case an appropriate one for the granting of summary judgment under the authority of Delaware Valley Marine Sup. Co. v. American Tobacco Co., 297 F.2d 199 (3rd Cir. 1961), cert. den. 82 S. Ct. 867 and Gold Fuel Service, Inc. v. Esso Standard Oil Company, 195 F.Supp. 85 (D.N.J.1961); see, also, cases cited at page 10 of Opinion of January 16, 1962 (Document No. 27); Fortugno v. Trachtenberg and Community Memorial Hospital, D.C., 202 F.Supp. 177, Opinion of Chief Judge Clary dated 2/23/62, reported in Legal Intelligencer of 3/2/62; Kleiman v. Tidewater Mills & Elevator Co., et al., C.A. 22018, Opinion of Senior Judge Kirkpatrick dated 10/31/61, reported in Legal Intelligencer of 11/8/61.
Facts cannot be based on sheer speculation, rather than on the drawing of a logical inference. Taxin v. Food Fair Stores, Inc., 287 F.2d 448, 451 (3rd Cir. 1961). The vague, conclusionary allegations of the Amended Complaint, when considered with the documents filed by defendants, are insufficient to create a genuine dispute concerning a material fact and, hence, do not prevent the granting of defendants' Motion For Summary Judgment.
The affidavit taken by plaintiff's attorney, which is attached to Document No. 45, attempts to incorporate by reference the testimony and opinion in the case of Esso Standard Oil Company v. Ciambrello, C.P. No. 1, Phila. Co., Sept. Term 1959, No. 3195. Without deciding whether such wholesale incorporation of the record in another case is proper, the parts of said record to which the court's attention has been specifically directed by letter of March 22, 1962, which has been attached to Document No. 45, have been examined and have been found not to negative the above-described affidavits and plaintiff's deposition, which require the granting of this Motion. Although the adjudication states that the circumstances of the case, when uncontradicted and with no more explanation than the record affords, justify the inference that Esso (now Humble) acted in concert and in common tacit agreement with the other major oil companies in the Philadelphia area in maintaining a uniform, horizontal price level for their regular brand gasolines, it also holds that price changing was done by Esso without discussion with its competitors 'see Finding of Fact No. 13 and pages 20-21 of the court's adjudication). The affidavits recently filed by defendants (see, particularly, Documents Nos. 31, 33, 37, 39 and 42) are such as appear to have been contemplated by the Common Pleas Court on page 21 of its adjudication in Esso Standard Oil Company v. Ciambrello and make the record in this case different from that which was before the judge hearing that case.
Under such circumstances, the Ciambrello decision is not one which would raise a genuine issue of fact and prevent the granting of defendants' Motion For Summary Judgment. In Ciambrello, the court decided that the record sustained a finding that the oil company competed with its dealers. In the record of the instant case are found sworn answers to plaintiff's Interrogatory No. 12 which show that the defendants did not sell to public consumers whose records are public or quasi-public at a price less than they charged their dealers during the time period applicable in this suit.
As stated above, affidavits setting forth the exemption from the fair trade agreements of sales to this type of wholesaler are part of the record.
These and other facts make the record here substantially different from that presented to the court in Ciambrello.
Looking at the record in this case in the light most favorable to plaintiff, as must be done,
it shows no genuine dispute as to a material fact. Defendants' Renewed Motion For Summary Judgment should be granted.
AND NOW, May 4, 1962, after consideration of the foregoing Motion, the briefs of counsel (Documents Nos. 50, 56 and 65), the letter of March 22, 1962, which has been attached to Document No. 50, oral argument, and the record, IT IS ORDERED that defendants' Renewed Motion For Summary Judgment (Document No. 41) is granted, and judgment is entered in favor of Texaco, Inc., Humble Oil & Refining Company, Gulf Oil Corporation, and Sinclair Refining Company, defendants, and against Pasquale Fiumara, plaintiff.