The opinion of the court was delivered by: LUONGO
Defendants, Pennsylvania Refuse Removal Association, Harry Coren, Arnold Graf, Salvatore Graziano and Edwin S. Vile, were found guilty by a jury on a one count indictment charging them with violating the Sherman Anti-Trust Act (15 U.S.C.A. § 1).
Their motions for acquittal and for new trial are before me. The motions will be denied.
The Pennsylvania Refuse Removal Association is an organization made up of refuse removers in the Greater Philadelphia area. The Association was formed in 1960 as a vehicle through which area refuse removers could better deal with problems that were of common interest. Originally the Association was called Delaware Valley Refuse Removal Association, but by 1962 it had merged with a similar group with headquarters in South Philadelphia and adopted its present name. Defendants Graf, Graziano and Vile were officers and/or directors of the Association virtually from its inception in 1960 and continuing throughout the period covered by the indictment.
Defendant Coren occupied a similar position beginning in early 1962 when the South Philadelphia group, of which he was a member, merged with Delaware Valley.
In their brief, defendants allege many trial errors, but defendants' counsel frankly conceded at oral argument that none warrant either new trial or acquittal except those pertaining to the question of whether the interstate commerce requirement of the Sherman Anti-Trust Act was satisfied. Notwithstanding counsel's candid concession, I have considered all of defendants' contentions and have concluded that they are unfounded. Only those relating to interstate commerce warrant discussion.
(a) Scope of Defendants' Business.
The real thrust of defendants' argument regarding interstate commerce is that the refuse removal here was a purely local operation; that the service is complete when trash or garbage is removed from a customer's premises and deposited in the remover's vehicle; and since virtually all of the customers in the instant case were located in Pennsylvania, there has been no showing of the requisite interstate commerce for the application of the Sherman Anti-Trust Act.
As stated in Las Vegas Merchant Plumbers Ass'n v. United States, 210 F.2d 732, 739 n. 3 (9th Cir. 1954), cert. denied, 348 U.S. 817, 75 S. Ct. 29, 99 L. Ed. 645 (1954).
'A case under the antitrust laws, so far as the interstate commerce element is concerned may rest on one or both of two theories: '(1) That the acts complained of, occurred within the flow of interstate commerce. This is generally referred to as the 'in commerce' theory. '(2) That the acts complained of, occurred wholly on the state or local level, in intrastate commerce, but substantially affected interstate commerce.' (Italics in the original.)
This case was presented on the 'in commerce' theory. Whether the refuse removal business was 'in commerce' depended upon the scope of the business. It was the court's function to define the scope of the business under the facts and circumstances present in the record. United States v. Yellow Cab Co., 332 U.S. 218, 67 S. Ct. 1560, 91 L. Ed. 2010 (1947). Here the court determined that the scope of that business encompassed not only the collection of refuse, but also the carrying away and disposal of it. In the refuse removal business, collection and disposal are inseparable. Witness after witness testified that their refuse trucks are emptied as soon as possible after they are filled and in no event longer than 24 hours after collection. The reason for this is obvious. A filled truck is a liability to the operator of a refuse removal business, an empty truck is an asset, essential to the performance of further service. Indeed, the more modern refuse removal equipment is designed to reduce the number of trips to the place of disposal by compacting greater quantities of the collected refuse into the cargo carrying portion of the vehicle. Under these circumstances it would have been totally unrealistic for the court to separate the collection and the disposal functions. Each is essential to the conduct of the business in which the defendants are engaged.
(b) Defendants' Activities 'In Interstate Commerce.'
If the court was correct, therefore, in defining the refuse removal business as including both collection and disposal, the government clearly sustained its burden of showing that defendants' business was 'in interstate commerce' as that term is defined in Las Vegas Merchant Plumbers Ass'n v. United States, supra. There was testimony from fifteen witnesses
that during the period covered by the indictment each had collected refuse in Pennsylvania and each, with varying degrees of regularity, dumped substantial quantities of it in New Jersey. By way of illustration:
James Anthony, owner of a large Pennsylvania refuse removal company, testified that in the spring of 1962 his company dumped in New Jersey 50 loads of trash collected in Pennsylvania.
Matthew Brimmeier testified that during the period from 1961 through the first ten months of 1963, his company dumped approximately 10% Of the refuse it picked up in Pennsylvania at a New Jersey landfill. In 1960 the amount was somewhat less -- from 5% To 7%. Mr. Brimmeier noted that this amounted to about one load per day being dumped in New Jersey out of a possible six loads to be dumped.
Thomas McCarthy, also a Pennsylvania refuse remover, testified that while he did not dump anything in New Jersey in the years 1960-61, he did dump Pennsylvania-collected refuse in New Jersey in 1962 and during the first ten months of 1963. He testified that in 1962 he paid dumping costs of $ 5,460 of which $ 644 went ...