The opinion of the court was delivered by: BRODERICK
In this action the Bank of America (the Bank) seeks to foreclose a mortgage on real estate located in the Rittenhouse Square area of Philadelphia, known as the Hotel Rittenhouse Project, to recover on a promissory note and mortgage against Hotel Rittenhouse Associates (HRA), Jack L. Wolgin and Jack L. Wolgin Associates, general partners of HRA, and to recover against Jack L. Wolgin and Muriel Wolgin on a guarantee. The note, mortgage and guarantee were executed in connection with a construction loan for the Hotel Rittenhouse, a hotel-apartment-condominium project. The defendants have counterclaimed on a variety of grounds. The Bank has moved for summary judgment on these counterclaims which allege violations of the Bank Holding Company Act (Count VII), the federal securities laws (Count IX), and the Equal Credit Opportunity Act (Count XII). The Bank also requests partial summary judgment on Count VIII, which alleges a violation of the Racketeer Influenced and Corrupt Organizations Act.
For the reasons discussed below, the Bank's motion for summary judgment on Counts VII, IX, and XII will be granted and partial summary judgment will be granted on Count VIII.
A trial court may enter summary judgment if, after a review of all the evidentiary material in the record in a light most favorable to the party opposing the motion, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). Where no reasonable resolution of the conflicting evidence and inferences therefrom could result in a judgment for the non-moving party, the moving party is entitled to summary judgment. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 883 (3d Cir.), cert. denied, 454 U.S. 893, 70 L. Ed. 2d 208, 102 S. Ct. 390 (1981).
The Bank Holding Company Act
In Count VII of their counterclaim, defendants assert that the Bank's engagement of an accounting firm at HRA's expense to perform an overpriced, incompetent audit of HRA's accounts for an improper purpose constituted an unusual banking practice and an illegal tying arrangement in violation of section 106(b) of the Bank Holding Company Act (BHCA), 12 U.S.C. § 1972 (1980). Section 1972 provides in relevant part:
A bank shall not in any manner extend credit . . . on the condition . . . that the customer shall . . .
(A) obtain some additional credit, property, or service from such bank other than a loan, discount, deposit, or trust service . . . [or] (c) provide some additional credit, property, or service to such bank, other than those usually provided in connection with a loan. . . .
Id. Sections 1975 and 1976 authorize a private cause of action for treble damages and/or injunctive relief based on Section 1972. 12 U.S.C. §§ 1975-76 (1980).
The Third Circuit has explained that section 1972 does not prohibit all attempts by banks to use their economic power to protect their investments. Tose v. First Pennsylvania Bank, N.A., supra. Section 1972 prohibits only those " 'anticompetitive practices which require bank customers to accept or provide some other service or product or refrain from dealing with other parties in order to obtain the bank product or service they desire. '" Id., (quoting S.Rep. No. 1084, 91st Cong., 2d Sess. 17, reprinted in  U.S. Code Cong. & Ad. News, 5519, 5535). Merely establishing that a particular method of protecting against default is not commonly used is not sufficient to establish a violation of section 1972:
Unless the "unusual" banking practice is shown to be an anticompetitive tying arrangement which benefits the bank, it does not fall within the scope of the Act's prohibitions . . . where there is no evidence that the bank would benefit in any way other than by getting additional protection for its investment, that is not a tying arrangement.
Parsons Steel v. First Alabama Bank of Montgomery, 679 F.2d 242, 245-46 (11th Cir. 1982) (bank's conditioning extension of credit on corporation's acceptance of a new manager, who would have the option of acquiring majority interest, not a violation of § 1972).
In this case, the Bank and HRA executed a construction loan agreement which required HRA to "permit Bank's employees or agents at any reasonable time . . . to examine or audit [HRA's] books, accounts, and records. . . ." Amended Complaint, Exhibit B, paras. ...