The opinion of the court was delivered by: MARSH
The defendants in this anti-trust case have moved fro summary judgment, pursuant to Rule 56(b) and (c), Fed.R.Civ.P., on all claims asserted by the plaintiff based on violations of § 2 of the Clayton Act, as amended by the Robinson-Patman Act, 49 Stat. 1926, 15 U.S.C. § 13 (hereinafter sometimes referred to as the Act), § 3 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 14, and the common law, on the ground that the record in this case discloses that defendants are entitled to judgment as a matter of law with regard to these claims.
At pretrial conference all parties agreed that the validity of these claims could be determined by the court in a preliminary hearing. It is our opinion that there exists no genuine issue as to any material fact, and the defendants are entitled to judgment as a matter of law.
Rule 56(c), Fed.R.Civ.P.
Plaintiff has conceded that it has no claim against the defendants based upon either § 3 of the Clayton Act or the common law; therefore, we need only determine the legal sufficiency of the plaintiff's claim under the Robinson-Patman Act.
Plaintiff has not specified the subsections of this Act upon which it relies. Defendants have asserted that only 2(a) and (e) could possibly be relevant to plaintiff's claims.
Plaintiff has not contended to the contrary. We agree with the defendants.
Taking as true all the well-pleaded facts contained in the complaint, and those stipulated among the parties, together with the facts disclosed in the answers to interrogatories and in the depositions on file, and giving to plaintiff the benefit of all reasonable inferences to be drawn therefrom; Bragen v. Hudson County News Company, 278 F.2d 615, 618 (2d Cir.1960); we do not believe they disclose a cause of action upon which relief can be granted based on the Robinson-Patman Act; for if all of the alleged and admitted facts were offered in evidence and proved at trial, a judgment would have to be directed in favor of defendants on plaintiff's claim based on that Act. Shipley v. Ohio National Life Ins. Co., 296 F.2d 728 (3d Cir.1961); Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co., 147 F.2d 399, 405 (2d Cir.1945), citing Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 624, 64 S. Ct. 724, 88 L. Ed. 967; 6 Moore, Federal Practice, para. 56.15(1), p. 2107, para. 56.15(3), p. 2128, para. 56.15(8), p. 2165 (2d ed. 1953); Pittsburgh Hotels Ass'n, Inc. v. Urban Redevelopment Authority, 202 F.Supp. 486, 488 (W.D.Pa.1962), aff'd 309 F.2d 186 (3d Cir. 1962).
The facts so disclosed are as follows:
Defendant, Pittsburgh Miracle Mile Town and Country Shopping Center, Inc. (Miracle Mile), a Pennsylvania corporation, owns and operates a shopping center located at Monroeville, Allegheny County, Pennsylvania. This defendant maintains an executive office located in Columbus, Ohio, where it executed the lease between itself and defendant, J. C. Penney Co. (Penney), and the lease between itself and plaintiff, Gaylord Shops, Inc. (Gaylord), and from where it generally directs the operation of its shopping center. This shopping center opened on or about November 4, 1954 and is currently operating.
Defendant, Penney, a Delaware corporation, with principal offices in New York City, became a tenant of Miracle Mile's shopping center on or about November 4, 1954, and since then has been the principal and largest tenant in the shopping center, as determined by leased storeroom space. Penney is engaged in trade or commerce among the several states.
Plaintiff, Gaylord, occupied a storeroom in the shopping center as a tenant of Miracle Mile from March 10, 1955 to July 31, 1961, under a lease dated December 11, 1954. Gaylord sold its physical assets and its good-will on July 31, 1961 to R.A.M. Fashions, Inc. under an agreement dated May 29, 1961.
The allegations of plaintiff's complaint and its amended complaint, which we accept as true for purposes of this motion are: That there existed an agreement between Miracle Mile and Penney whereby Penney enjoyed a 'veto' power over tenants of Miracle Mile with regard to any changes or increases in the amount of space leased to smaller tenants, including Gaylord' that pursuant to this agreement a number of discriminatory rules and regulations as to the operation of the shopping center were instituted in favor of Penney and other tenants of its preference and against the smaller tenants, including Gaylord; that Penney had inserted in its lease with Miracle 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 ...