The opinion of the court was delivered by: MCGLYNN
Plaintiff, Sunshine Books, Ltd. ("Sunshine"), brings this action against defendant, Temple University ("University"), alleging violations of the Pennsylvania Unfair Sales Act, 73 P.S. § 213 and section 2 of the Sherman Act, 15 U.S.C. § 2.
The University operates five book stores, one of which is located on the main campus. In January of 1979, Sunshine began to sell various school supplies and some graduate and undergraduate textbooks at approximately ten percent off the suggested retail prices from a truck or trailer parked on a street near the University's main campus bookstore. Since then, Sunshine has continued to operate in such a manner for the first two or three weeks of each semester, thereafter closing shop until the start of the next semester.
The incident which gave rise to the present complaint occurred in September of 1980 when the University's main campus book store ran a one week "manager's special" offering fifty undergraduate textbooks at fifteen percent below the suggested retail prices. Sunshine posted the University's prices on its trailer and offered those same titles at yet lower prices.
Sunshine then brought this action alleging that the University had attempted to monopolize the sale of undergraduate textbooks to students at the University by means of predatory pricing, forcing Sunshine to sell books below cost in order to compete with the University's prices. The basis of Sunshine's claims is that the University priced books sold during the manager's special below cost.
The University filed a motion to dismiss or in the alternative for summary judgment alleging that it did not sell the textbooks below cost and that it therefore did not violate section 2 of the Sherman Act or the Pennsylvania Unfair Sales Act. Though the University alleged that the complaint was deficient in several respects, it chose to base its motion solely on the issue of whether Sunshine could adequately demonstrate that the University priced books so low as to be considered predatory. By order dated February 10, 1981, I held the University's motion in abeyance pending completion of discovery on the cost issue. That discovery is now completed and the case is presently before the Court on the University's motion.
A necessary element of a section 2 Sherman Act claim is proof of anticompetitive conduct. Janich Brothers, Inc. v. American Distilling Co., 570 F.2d 848 (9th Cir. 1977), cert. denied., 439 U.S. 829, 99 S. Ct. 103, 58 L. Ed. 2d 122 (1978). Anticompetitive conduct may be used to infer a specific intent to monopolize, and, if coupled with proof of monopoly power, it may satisfy the requirement that the attempt have a dangerous probability of success. Northeastern Telephone Co. v. American Telephone and Telegraph Co., et al., 651 F.2d 76 (2d Cir. 1981).
Sunshine alleges that the prices charged by the University during the one week manager's special were predatory. Although the concept of predatory pricing is difficult to define in precise economic terms, it has generally been defined as the sacrificing of present revenues for the purpose of driving competitors from the market with the intent of recouping lost revenues through monopoly profits thereafter. See O'Hommel Co. v. Ferro Corp., 659 F.2d 340 (3d Cir. 1981). To determine whether a firm has engaged in predation, it is necessary to compare its prices with its costs.
Costs can be divided into two broad categories-fixed costs, which do not change with output, and variable costs, which do change with output. The sum of all costs divided by output equals average total cost. The sum of all output divided by variable costs equals average variable cost. Marginal cost is the incremental cost that results from producing additional output.
The question is: which measure of cost is best suited to determine whether a firm is engaging in predatory pricing. Several courts and commentators agree that only prices below marginal cost should be used to infer predatory pricing.
See e.g., Northeastern Telephone Co. v. American Telephone and Telegraph Co., et al., 651 F.2d 76 (2d Cir. 1981); Hanson v. Shell Oil Co., 541 F.2d 1352 (9th Cir. 1976), cert. denied 429 U.S. 1074, 97 S. Ct. 813, 50 L. Ed. 2d 792 (1977); International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714 (5th Cir. 1975), cert. denied, 424 U.S. 943, 96 S. Ct. 1411, 47 L. Ed. 2d 349 (1976); Weber v. Wynne, 431 F. Supp. 1048 (D.N.J.1977); Areeda & Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv.L.Rev. 697 (1975).
The line between competitive and predatory pricing is difficult to draw. If the price below which predatory pricing will be inferred is too high, price competition will be discouraged, a result inconsistent with the antitrust laws. Since marginal cost is the cost of producing an additional unit, any price at or above marginal cost will not reduce short run net returns. Furthermore, when price is at marginal cost, the consumers are willing to pay the cost of producing the last unit of output; therefore the economy is achieving the most efficient allocation of resources in the short run. See Areeda & Turner, supra, at 709-711.
At prices above marginal cost, output is restricted, and the economy produces at less than optimal efficiency in the short run. Id. at 711. A price floor above marginal cost would also protect less efficient firms and allow them to survive despite cost inefficiency.
I am persuaded by the Areeda & Turner analysis and conclude that only prices below marginal cost can be presumed to be predatory. Because marginal cost cannot be accurately measured by conventional accounting methods, I will use average variable cost in its place. Accord, Northeastern Telephone Co. v. American Telephone and Telegraph Co., et al., 651 F.2d 76, 88 (2d Cir. 1981); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 432 (7th Cir. 1980); Janich Brothers, Inc. v. American Distilling Co., 570 F.2d 848, 858 (9th Cir. 1977), cert. denied, 439 U.S. 829, 99 S. Ct. 103, 58 L. Ed. 2d 122 (1978); ...