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ALLEGHENY UNIFORMS v. HOWARD UNIFORM CO.

November 21, 1974

Allegheny Uniforms, Plaintiff
v.
Howard Uniform Co., Gimbel Brothers, Inc., Amalgamated Transport Union, Division 85 and Port Authority of Allegheny County, Defendants


Marsh, C. J.


The opinion of the court was delivered by: MARSH

MARSH, C. J.

 This is a civil anti-trust action brought under the Sherman and Clayton Acts, 15 U.S.C. §§ 1, 2 and 15 U.S.C. §§ 15, 26 respectively. The plaintiff Allegheny Uniforms (Allegheny), seeks injunctive relief and treble damages together with a reasonable attorney's fee and costs of suit against the defendants.

 It is alleged that Allegheny manufactures, distributes and sells uniforms; that the employees of the defendant Port Authority of Allegheny County (Port Authority) are required by the Port Authority to wear uniforms of a specific type, design, color, etc. while performing their duties as operators of the Port Authority's vehicles; that the operators are represented by, and are members of the Amalgamated Transport Union, Division 85 (Union), the duly authorized collective bargaining representative for the operating and maintenance employees of the Port Authority.

 The Port Authority subsidizes part of the costs to the individual operators purchasing the required uniforms or parts thereof, provided that the uniform articles purchased are those which have been approved for sale to the operators by the Port Authority and the Union, and provided that the uniform articles are purchased from the defendant, Gimbel Brothers, Inc. (Gimbels), at their retail store in Pittsburgh.

 The only uniforms which the Port Authority and the Union have approved for sale to the operators are those manufactured and distributed by the defendant, Howard Uniform Company (Howard), despite the fact that the plaintiff manufactures, distributes and sells uniforms that are, "for all practical purposes," identical in design and quality and comply in all respects with the specifications established by the Port Authority for the uniforms its operators are required to wear.

 Prior requests made by plaintiff that it be authorized to either manufacture, distribute or sell its uniforms to the Port Authority operators have "arbitrarily and capriciously been denied plaintiff by the defendants."

 Finally, plaintiff alleges that the defendants have conspired to ensure that only those uniforms manufactured by Howard and sold by Gimbels will be purchased by the Port Authority operators, and have contracted, conspired and agreed to withhold the aforementioned subsidy from the Port Authority operators for any uniforms or parts thereof which the operators purchase from the plaintiff.

 All of the above acts of the defendants are alleged to be in restraint of trade and commerce among the states in the United States, in that they intentionally did prevent plaintiff from manufacturing, distributing and selling uniforms to the operators of the Port Authority; and did create and produce and constitute a monopoly, and had the intentional effect of an attempt to monopolize the manufacture, distribution and sale of uniforms in the Western Pennsylvania area to the injury and damage of the plaintiff in violation of the Sherman Anti-Trust Act.

 The Port Authority moved to dismiss the action against it under Rule 12(b) Fed. R. Civ. P. for failure to state a claim against it upon which relief can be granted. The motion is based on the fact that the Port Authority is a public body corporate and politic, exercising the public powers of the Commonwealth as an agency thereof, having been organized and existing for the purpose, among others, of acquiring, maintaining and operating a transportation system in the County of Allegheny under "Second Class County Port Authority Act" 55 Pa. Stat. Ann. § 551 et seq., and as such is not subject to the provisions of the Sherman and Clayton Acts. The motion will be denied.

 The Port Authority in its brief sets out the specific language of the Act as follows:

 
"There are hereby created bodies corporate and politic in counties of the Second Class, to be known as the Port Authority of (Allegheny County), which shall constitute public bodies corporate and politic; exercising the public powers of the Commonwealth as an agency thereof. Each Authority shall be for the purpose of . . . maintaining and operating, . . . a transportation system in the County by which it is incorporated and outside of the county to the extent necessary . . ." (Emphasis supplied by Port Authority).

 The Port Authority relies on Parker v. Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943) in support of its motion to dismiss. In Parker it was held that a state imposed restraint is an act of a sovereign government which the Sherman Act did not undertake to prohibit. The Port Authority argues that its actions as alleged in the complaint, which at this stage of the litigation must be taken as true, did not violate the Sherman Act ...


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