Mile a clause which prevented Miracle Mile from leasing certain space to Gaylord, for which Gaylord had applied on April 1, 1960, and upon which it desired to erect a larger storeroom than it was then occupying; and that Penney and plaintiff were engaged in the same line of commerce, i.e., women's retail apparel. Because of these discriminatory practices, rules and regulations, and because plaintiff could not expand its facilities or erect larger facilities, it was forced to sell its assets and abandon its storeroom at the shopping center.
The defendants contend that plaintiff's claim fails to meet the following requirements of the Robinson-Patman Act:
(A) Plaintiff has failed to fulfill two interstate requirements necessary for application of the Act, which are:
(1) That the defendant who discriminates must be engaged in interstate commerce; and (2) That the discrimination must occur in the course of interstate commerce.
(B) The discrimination must occur in transactions involving 'commodities', and this term does not embrace real estate.
(C) Subsections 2(a) and 2(e) of the Act apply only to sales and not to leasing transactions.
It is our opinion that leases of real estate located in a single shopping center in Pennsylvania are not covered by the Act, even though the corporate lessor and lessees were otherwise engaged in interstate commerce. All of the subject real estate was situate in Pennsylvania, and, of course, did not move in interstate commerce. Even under the broad terms of the Sherman Act, real estate transactions have been held to be strictly local in nature,
and we do not think that the fact that the leases here involved were executed outside Pennsylvania calls for a different conclusion. Similarly, we are convinced that the discrimination to which plaintiff was subjected did not occur in the course of interstate commerce.
We do not find it necessary to dwell upon the questions of interstate commerce, however, because we find even more fundamental reasons for our determination; namely, that the Act clearly applies only to commodities, as distinguished from real estate, and that it applies only to sales, as distinguished from leasing transactions.
We agree with the defendants that real estate is not a 'commodity' within the meaning of the Robinson-Patman Act.
Without belaboring the point, it seems clear from a reading of the Act that where the agreement is not for the transfer of chattels, or the sale of personal property, the defendants cannot be guilty of violation of the Robinson-Patman Act. See: General Shale Products Corp. v. Struck Const. Co., 132 F.2d 425, 428 (6th Cir. 1942); Columbia Broadcasting System v. Amana Refrigeration, 295 F.2d 375, 378 (7th Cir. 1961).
In Fleetway, Inc. v. Public Service Interstate Transp. Co., 72 F.2d 761, 763 (3d Cir. 1934), arising under § 2 of the Clayton Act prior to the Robinson-Patman Act amendment, the Third Circuit Court of Appeals made the following comment with regard to the term 'commodities':
'The learned trial judge construed this section to apply to 'commodities' and not to transporation of passengers by motor busses. The section prevents discrimination in price between different purchasers of commodities which are sold for use, consumption, or resale within the United States, etc. This clearly refers to a commodity such as merchandise, and has no reference to transportation of passengers by busses, for discrimination in price between purchasers of commodities on account of differences in grade, quality, or quantity or a discrimination which makes only due allowance for difference in the cost of selling or transportation is not prohibited. It would be a strange and strained construction that would apply this language to transportation of passengers by busses.'
For the same reason, we believe that it would be a strained and strange construction that would apply the language of the Robinson-Patman Act to real estate transactions.
We do not believe that the case cited by plaintiff, Burns v. Donohue, 79 F.Supp. 107 (D.N.J.1948), is in point. The statute under construction there specifically provided that certain real estate transactions would be regarded as commodities.
Defendants also contend that § 2 of the Robinson-Patman Act is not applicable because the section only applies to 'sales' and does not apply to 'leases'. Again, we find that we agree with defendants.
In United States v. United Shoe Machinery Co., 264 F. 138, 164-165 (E.D.Mo.1920), aff'd 258 U.S. 451, 42 S. Ct. 363, 66 L. Ed. 708 (1922), it was held that leases, as distinguished from sales, were beyond the scope of § 2 of the Clayton Act. Although that section has been amended by the Robinson-Patman Act, we find nothing in the amendment which would justify any different interpretation than was employed in that case. Cf. County Theatre Co. v. Paramount Film Distributing Corp., 146 F.Supp. 933 (E.D.Pa.1956).
For the above reasons we believe that summary judgment should be entered in favor of the defendants with regard to any claim by plaintiff based upon the Robinson-Patman Act.
An appropriate order will be entered.