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November 17, 1975


The opinion of the court was delivered by: TROUTMAN


 In this antitrust action defendants are charged with agreeing and conspiring to restrain trade in and monopolize the market defined as that unique cluster of services offered by shopping centers in the Bethlehem area. Plaintiff Bethlehem Plaza, a partnership, has recently completed constructing a shopping mall in the center of Bethlehem as a private venture in that city's overall redevelopment effort designed to revitalize the central business district. Two corporations, defendants Beth Westgate, Inc. and Rosehill, Inc., allegedly controlled and operated by defendant Harold S. Campbell, and Campbell himself in his individual capacity allegedly violated Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, in attempting to thwart the successful operation of plaintiff's shopping mall which competes with defendants' shopping center known as the Westgate Mall located two miles away. Plaintiff has, in addition, alleged pendent claims under state law for abusing and/or misusing legal process and for illegally agreeing to restrain trade.

 By order dated September 2, 1975, we denied defendants' motion to dismiss for lack of subject-matter jurisdiction *fn1" and for failure to state a claim upon which relief could be granted, Rules 12 (b)(1) and (6), F.R.Civ.P. However, defendants subsequently moved for reconsideration of our Rule 12(b)(6) ruling which we granted and which is presently before us. After oral argument and careful consideration of the ably prepared briefs, we conclude that defendants' motion to dismiss must be granted.

 For the purpose of a ruling on a motion to dismiss under 12(b)(6), the complaint must be construed in the light most favorable to plaintiff and all well-pleaded factual averments taken as true. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Curtis v. Everette, 489 F.2d 516 (3d Cir.), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974). Since this is antitrust litigation involving motive and intent and most of the proof may be in the possession of the alleged conspirators, we are cautioned against hasty adjudications which might forestall the full opportunity to litigate potentially meritorious antitrust claims. Poller v. Columbia Broadcasting System, 368 U.S. 464, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962); Fortner-Enterprises v. U.S. Steel Corp., 394 U.S. 495, 89 S. Ct. 1252, 22 L. Ed. 2d 495 (1969); Austin v. House of Vision, 385 F.2d 171 (7th Cir. 1967). With these considerations in mind, we turn to the complaint.

 Briefly summarized, plaintiff alleges in Count I that defendants and others unknown entered into a conspiracy, unlawful under 15 U.S.C. § 1, to restrain commerce by impeding the successful operation of and competition from the Bethlehem Plaza shopping mall. Present redevelopment plans for downtown Bethlehem include a public parking garage to be constructed directly across the street from Bethlehem Plaza. The commercial success of the shopping mall depends, in part, on the availability of ample parking which would be provided by the proposed garage. The Bethlehem Parking Authority has already acquired the land, received bids for a construction contract, and arranged to issue municipal bonds to finance the garage.

 Pursuant to the unlawful conspiracy, it is alleged defendants

"commenced a plethora of activities * * * including spurious litigation, disparagement, misleading advertisements and other organizational activities purportedly designed to prevent expenditure of public funds, but in reality motivated by defendants' intention to restrain trade and prevent competition."
(Complaint, para. 18).

 Among these activities, plaintiff specifically alleges the following:

 (a) In early October, 1974, a summons in equity against the Bethlehem Parking Authority was filed in the Court of Common Pleas of Northampton County by the "Committee for Constructive Renewal". Defendant Campbell offered to pay the costs of litigation to this group, but the action was discontinued on October 29, 1974;

 (b) On October 30, 1975, defendant Campbell placed in two newspapers an advertisement, financed by defendant Beth Westgate, which made "scurrilous, false and unfounded accusations impliedly against partners of plaintiff";

 (c) Campbell filed suit in November, 1974, against the parking authority alleging that the proposed bond issue constituted an improper use of public funds but he was actually motivated by the illegal conspiracy and a desire to prevent competition by impeding the construction of parking facilities essential to the successful operation of the mall; and

 (d) Campbell offered to settle the action on the conditions that (1) the enclosed walking bridge from the parking garage to the mall be eliminated, and (2) that the City not build another parking ...

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