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MILLER & SON PAVING v. WRIGHTSTOWN TWP. CIVIC ASSN

January 11, 1978

MILLER & SON PAVING, INC.
v.
WRIGHTSTOWN TOWNSHIP CIVIC ASSOCIATION, et al.



The opinion of the court was delivered by: MCGLYNN

 McGLYNN, J.

 The plaintiff in this case, Miller & Son Paving, Inc. (Miller), is engaged in the business of stone quarrying in Wrightstown Township, Pennsylvania. Miller brought this suit against Wrightstown Township Civic Association and certain individual residents of the Township. Miller charges that all defendants engaged in a concerted effort to terminate the operation of Miller's business in violation of section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (count I), and sections 1, 2, and 6 of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(3) and 1986 (count II). Presently before the court are motions by all defendants to dismiss the complaint for failure to state a claim upon which relief may be granted.

 For the purpose of these motions, I accept all allegations of the complaint as true. Kurek v. Pleasure Driveway & Park District, 557 F.2d 580, 584 (7th Cir. 1977). A summary of those allegations follows.

 Miller has owned and quarried a 45 acre tract of land in Wrightstown Township since 1959. This land has been and is presently zoned Q-A Quarry-Agriculture. In 1973, Miller purchased 12 acres of land adjoining the original 45 acre plot. This land is presently and was at the time of purchase zoned R-2 Residential Agriculture.

 In September, 1974, the Township Supervisors, at the initiation of defendant Perry, whose residence borders on Miller's quarry operation, "issued an order directing Miller to cease and desist certain activities in connection with quarrying within the 45 acre plot." That order was appealed to the Township's Zoning Hearing Board where the order of the Supervisors was upheld in part and dismissed in part. Both Miller and the Township appealed the order of the Hearing Board and that appeal is presently pending before the Court of Common Pleas of Bucks County, Pennsylvania.

 In December, 1974, Miller filed a petition with the Supervisors to change the zoning classification of the 12 acre plot from R-2 Residential-Agriculture to Q-A Quarry-Agriculture. In the course of hearings that were held on Miller's petition, the Supervisors directed Miller to negotiate with the other defendants and stated that they would rezone only on conditions acceptable to the civic association and the other individual defendants. The negotiations proved fruitless and in June of 1977, the supervisors issued an order denying Miller's petition for rezoning.

 In addition to these activities regarding zoning regulations, Miller charges that the defendants combined for the purpose of terminating his business, by filing an appeal with the Pennsylvania Environmental Hearing Board from the grant to Miller by the Department of Environmental Resources of a surface mining permit and mine drainage permit. The complaint states that although the Supervisors initiated the appeal and the Township paid all the expenses, "the Supervisors delegated to the Association and to the other defendants the conduct of the appeal."

 As a result of the activities of the defendants, Miller alleges that he has been unable to quarry in the 12 acre tract and "has been prevented from selling stone and stone products in Pennsylvania and New Jersey." Thus, Miller claims that the flow of stone products and stone in Interstate Commerce has been restrained and that competition between Miller and other quarry operators has been suppressed.

 Because I find that the activities alleged in the complaint are not of the type that the Sherman Act or the Civil Rights Act of 1871 were designed to prohibit, I will dismiss the complaint for failure to state a claim upon which relief can be granted.

 Antitrust Claim

 Although the language of the Sherman Act is very broad, it has long been settled that Congress intended its proscriptions to be limited to "commercial transactions". Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-93, 84 L. Ed. 1311, 60 S. Ct. 982 (1940). The political nature of the defendant's activities in this case is, therefore, fatal to the plaintiff's antitrust claim.

 In this regard, I find instructive the case of Marjorie Webster Junior College v. Middle States Association of Colleges and Secondary Schools, Inc., 139 U.S. App. D.C. 217, 432 F.2d 650, cert. denied 400 U.S. 965, 27 L. Ed. 2d 384, 91 S. Ct. 367 (1970). The plaintiff in that case was refused consideration for accreditation by the defendant because the college was operated on a for profit basis. The court dismissed the complaint finding that the non-commercial nature of the defendant's activities made the Sherman Act inapplicable. The plaintiff had urged that since the plaintiff was engaged in "trade", any restraint on that "trade" was actionable under the Sherman Act. The court disagreed and stated that "the proscriptions of the Sherman Act were 'tailored . . . for the business world' not for the non-commercial aspects of the liberal arts and the learned professions." Id. 432 F.2d at 654 quoting Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 141, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961). See also Donnelly v. Boston College, 558 F.2d 634 (1st Cir. 1977).

 In the present case, there is no allegation that there is any commercial aspect to the defendant's actions. The plaintiff claims, however, that the effect of the defendant's activities is to reduce the viability of the plaintiff as a competitor in the interstate market for stone and stone products. This argument is essentially the same as the one rejected by the court in Marjorie Webster. The plaintiff claims that it is engaged in "trade" and therefore any damage to the plaintiff's business is a restraint on trade. I cannot accept this reasoning, however, because it overlooks the fact that the conduct ...


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