The opinion of the court was delivered by: HERMAN
The Defendant, Thomas J. Gillen, along with James J. Tedesco, was charged with engaging in a conspiracy to fix, stabilize and maintain prices of anthracite coal in unreasonable restraint of interstate trade and commerce in violation of Section 1 of the Sherman Act. (15 U.S.C. 1). Gillen elected to be tried by the Court without a jury and the trial began on January 3, 1978 and continued through January 10.
By the first of March the parties' briefs and suggested findings had been filed, oral argument was then had and the case is now ripe for decision.
From the record the Court makes the following.
1. The term "circulars" as used by the representatives of anthracite coal companies: Blue Coal Corporation; Lehigh Navigation-Dodson Company; Lehigh Valley Coal Sales Company, Inc.; Susquehanna Coal Company and Glen Burn Colliery, Inc., means the price lists for the sale of anthracite coal to line dealers, the dealers who are not located in the immediate vicinity of the colliery and who are generally shipped coal by rail or truck, many of whom are located in states other than Pennsylvania.
2. During the period between 1961 through November of 1973, Blue Coal Corporation;
Lehigh Navigation-Dodson Company; Glen Burn Colliery, Inc.; Susquehanna Coal Company and Reading Anthracite Coal Company issued such circulars three or four times a year. (Exhibits G-217 through 625.)
3. Prior to the issuance of the circulars, sales representatives, including Carl J. Tomaine for Blue Coal Corporation, (after 1968); Charles W. Dilley for Lehigh Navigation-Dodson Company; Joseph A. Frank for Lehigh Valley Coal Sales Company, Inc.; Eugene J. Bourger for Susquehanna Coal Company and later for Glen Burn Colliery, Inc., and William R. Dougan for Reading Anthracite Coal Company met together in the Middle District of Pennsylvania to discuss the coal prices that would appear on the circulars. N.T. 33, 34, 39, 119, 120, 209-211, 289-294, 374-379.
4. During such meetings the sales representatives would reach a tentative agreement concerning the prices to be charged by the companies they represented for the various sizes of coal as reported on the circulars; and concerning the issuance of such circulars; the date of issue; effective date, and which company would first issue its circular. N.T. 39, 120, 209, 210, 291, 377.
5. After such meetings the sales representatives reported to their superiors who approved the agreements and then generally, communicating with each other by telephone, the said representatives confirmed the agreement. N.T. 39, 40, 212, 215, 218, 380, 381.
6. Tomaine, sales representative for Blue Coal Corporation, generally during the period from 1968 through 1973 reported what occurred at these meetings to his superior Thomas J. Gillen, then President of the Company. N.T. 374-379.
7. Thomas J. Gillen, Defendant, knew and approved of the actions of Tomaine in the agreements reached at these meetings. N.T. 41, 42, 381.
8. Tomaine by telephone on occasion later confirmed with the others the agreement that had been tentatively reached at the meetings. N.T. 217.
9. Following the said telephone communications between the sales representatives described above, the anthracite companies including Blue Coal would issue circulars conforming to the agreements. N.T. 120-124; 212, 213, 217, 295; 378-382; G.Ex. 212 et seq.; particularly 422, 428, 434, 438, 443, 449, 455, 461, 467, 474, 480, 487, 494.
10. In the winter of 1966-1967 a meeting was held at Brutico's Restaurant, Old Forge, Pennsylvania, attended by about 15 persons including the Defendant, Thomas J. Gillen, Tomaine, Dilley, Bourger, Dougan, Frank, as well as James Tedesco, President of Lehigh Valley Coal Sales Company, Inc., Ivor Williams, then President of Blue Coal Corporation and William Moore, President of Susquehanna Coal Company. N.T. 125-127; 42-44; 268-270; 598.
11. At the meeting at Brutico's the parties agreed to try to get a better price for their coal, something near the circular price. N.T. 45, 128, 129, 130, 271.
12. The Defendant, Thomas J. Gillen, was part owner of Blue Coal Corporation, a co-conspirator, from 1966 until November 26, 1973 and was President and Chief Executive Officer of the company from 1968 until November 26, 1973. N.T. 496, 497, 500, 501, 551.
13. The Defendant, as President and Chief Executive Officer of Blue Coal Corporation, had "overall authority" over all departments of the company. N.T. 560.
14. The said Defendant, as President and Chief Executive Officer of the Blue Coal Corporation had, at all times pertinent to the issues here, the final pricing authority for the sale of coal by the company. N.T. 619.
15. The said Defendant, as President and Chief Executive Officer of the Blue Coal Corporation, did in fact participate with Carl Tomaine in making pricing decisions in the sale of coal by Blue Coal Corporation during the time pertinent to the issues here. N.T. 564-566. Coal was sold by Blue Coal to line dealers generally at the prices quoted in the circulars. N.T. 150, 190.
16. Prior to the meetings of the sales representatives described in Finding of Fact No. 3, at meetings of the Anthracite Committee on occasion Gillen, Fauzio and other coal producers suggested that the sales representatives of the various companies should ...