"the sole purpose in seeking to influence the passage and enforcement of laws was to destroy . . . competitors". Id. at 138. The present case is an even stronger one for not applying the antitrust laws since the defendants have no direct interest in eliminating competition in the quarrying business. Thus, no anticompetitive purpose can be attributed to the defendants.
The plaintiff argues that the Sherman Act becomes applicable to political activity when it is alleged that government is a part of the conspiracy, and cites Whitworth v. Perkins, 559 F.2d 378 (5th Cir. 1977); Kurek v. Pleasure Driveway and Park District, 557 F.2d 580 (7th Cir. 1977); Duke & Co. v. Foerster, 521 F.2d 1277 (3rd Cir. 1975). The fact that a conspiracy is alleged, however, does not change the essential non-commercial character of the activities alleged by the defendant. The cases cited by the plaintiff are inapplicable because they deal with government activities in the business rather than the political arena. "The proscriptions of the [Sherman] Act, tailored as they are for the business world, are not at all appropriate for application in the political arena." Noerr, supra, 365 U.S. at 141. Consequently, I conclude that the plaintiff's complaint does not state a cause of action under the antitrust laws.
The Civil Rights Claim
Count II of plaintiff's complaint alleges that the activities of the defendants in this zoning dispute amount to a violation of Miller's constitutional rights cognizable under the Civil Rights Act of 1871 and directly under the fourteenth amendment. I disagree and, therefore, dismiss Count II for failure to state a claim upon which relief can be granted.
Although the complaint only states in broad, conclusory language that Miller had been deprived "rights, privileges and immunities under law", the gravamen of the § 1983 claim is apparently that plaintiff has a property interest in its quarry operation and that the defendants have deprived Miller of the full use of that property. Because the property interest is protected by the fourteenth amendment, the plaintiff asserts that the complaint states a cause of action under § 1983. The fallacy of this argument is that not every deprivation of property is a constitutional violation. Only when an individual has been deprived of property without due process of law has he been injured in a constitutional sense. U.S. Const. Amend. XIV. The complaint does not specify what due process rights Miller has been denied or even that there was a denial of due process. The complaint is, therefore, defective since Civil Rights actions in this circuit must be pled with specificity. Rotolo v. City of Charleroi, 532 F.2d 920 (3rd Cir. 1976).
Even if I were to overlook the failure of the complaint to specifically articulate the constitutional deprivations for which redress is sought, it is apparent that no cause of action is stated by the facts alleged. The facts alleged are that the Township Supervisors issued a cease and desist order for alleged violations of the township zoning ordinance, that they denied the plaintiff's application for rezoning, that they appealed the granting of necessary permits to the plaintiff by the Pennsylvania Department of Environmental Resources, and that all of these actions were taken pursuant to a "conspiracy" between all of the defendants. The "conspiracy" apparently consisted of an agreement on the desirability of taking the actions outlined above. I fail to see how such an agreement can be construed as a violation of anyone's constitutional rights.
The factual allegations reveal that what is involved in this case amounts to nothing more than a local zoning dispute. A federal district court may not "sit as a super zoning board with power to act de novo, but rather has, in the absence of alleged racial or economic discrimination, a limited role of review." Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956, 960 (1st Cir. 1972) (footnote omitted). The only question I am empowered to review is "whether the action of the zoning commission [supervisors] is arbitrary and capricious, having no substantial relation to the general welfare." South Gwinnett Venture v. Pruitt, 491 F.2d 5, 7 (5th Cir.) cert. denied 419 U.S. 837, 42 L. Ed. 2d 64, 95 S. Ct. 66 (1974). The complaint is devoid of any allegation of arbitrariness. Consequently, I am without the power to review the decisions of the supervisors. In any event, the fact that the plaintiff has had numerous hearings before the supervisors and the Township's Zoning Hearing Board and has appeals pending before the Common Pleas Court of Bucks County shows that he has been afforded ample procedural due process.
As to the plaintiff's assertion of a cause of action under 42 U.S.C. §§ 1985(3) & 1986, I find the lack of any allegation of class based discrimination fatal to that claim. Griffin v. Breckenridge, 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Waits v. McGowan, 516 F.2d 203, 208 (3rd Cir. 1975).
In addition to the reasons stated above, the claim against Wrightstown Township based on the Civil Rights Act of 1871 must be dismissed because the Township is not a person within the meaning of the Act. City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). Because I find that nothing alleged in the complaint amounts to a violation of the plaintiff's constitutional rights, I need not decide if a cause of action exists against the Township directly under the fourteenth amendment. Compare Drennon v. Philadelphia General Hospital, 428 F. Supp. 809 (E.D. Pa. 1977) (Higginbotham, J.) with Jones v. McElroy, 429 F. Supp. 848 (E.D. Pa. 1977) (Luongo, J.).
I, likewise, express no opinion on whether or not the Supervisors are protected by absolute immunity. See Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951); Jonnet v. Bodick, 431 Pa. 59, 244 A. 2d 751 (1968).
In dismissing this complaint, I am aware that dismissal under Rule 12(b)(6) should only be ordered when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Nevertheless, I am convinced that justice is best served by a dismissal in this case because of the "danger that the mere pendency of the action will chill the exercise of First Amendment rights . . ." Franchise Realty v. San Francisco Local Joint Executive Board, 542 F.2d 1076, 1083 (9th Cir. 1976). The allegations of the complaint amount to no more than a charge that certain citizens of Wrightstown Township petitioned the Township Supervisors to enforce the local zoning laws against the plaintiff and the supervisors did so. The result has been that the Township and the plaintiff have become involved in two separate state court actions which are still pending. I see no reason to add leverage to Miller's position in the state court by continuing to entertain a groundless federal claim. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 443 F. Supp.]
AND NOW, this 11th day of JANUARY, 1978, it is hereby
ORDERED that the defendants' motion to dismiss the complaint for failure to state a claim upon which relief may be granted be and the same is hereby GRANTED.
BY THE COURT:
JOSEPH L. MC GLYNN, JR. J.
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