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PENNSYLVANIA v. DERRY CONSTR. CO.

September 18, 1985

COMMONWEALTH OF PENNSYLVANIA, Plaintiff
v.
DERRY CONSTRUCTION CO., INC., and LATROBE ROAD CONSTRUCTION, INC., Defendants



The opinion of the court was delivered by: MCCUNE

 On March 21, 1985, the plaintiff, Commonwealth of Pennsylvania, filed the present action against defendant, Latrobe Road Construction, Inc. (Latrobe), seeking damages for alleged violations of § 1 of the Sherman Act, 15 U.S.C. §§ 1-7 and §§ 1962(a) and 1962(b) of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968.

 An amended complaint was filed on March 28, 1985, naming Derry Construction Co., Inc. (Derry) as an additional defendant.

 We consider the defendants' motions for a more definite statement and to dismiss the RICO count.

 Motion for a More Definite Statement

 In paragraph 17 of plaintiff's amended complaint plaintiff alleges that:

 
17. Since at least August 1979, and continuing thereafter until at least sometime in 1980, the exact dates being unknown, defendants and their coconspirators engaged in a combination or conspiracy in unreasonable restraint of interstate trade and commerce in violation of section 1 of the Sherman Act, 15 U.S.C. § 1.

 The defendants contend that this allegation fails to allege with sufficient particularity the dates on which the alleged acts were to have occurred. Since the complaint merely states that they occurred from August 1979 and continued thereafter until sometime in 1980, the defendants argue they cannot frame a responsive pleading or determine what affirmative defenses might be available.

 The same argument is raised with regard to plaintiff's RICO count. Paragraphs 29 and 30 of plaintiff's amended complaint refer to the use of the mails in furtherance of the antitrust conspiracy referred to in paragraph 17. Plaintiff claims that the alleged acts of mail fraud represented a pattern of racketeering activity.

 These allegations fail, however, to give specifics as to date, time or persons involved. The defendants therefore argue that the plaintiff has failed to allege evidence of the predicate acts (mail fraud) with particularity, as required by FED. R. CIV. P. 9(b).

 This court has had occasion to address this problem before in the case of Chambers Development Co. v. Browning-Ferris Industries, 590 F. Supp. 1528 (W.D. Pa. 1984).

 In Chambers the plaintiff alleged, as a pattern of racketeering activity, that the defendants used the mails and wire communications for purposes of effectuating the underlying scheme. The plaintiff further alleged that this activity occurred during the past four years. The defendant in Chambers raised the same argument as is raised in the present case that the complaint did not meet the specificity requirements of FED. R. CIV. P. 9(b).

 In agreeing with the defendant in Chambers, the court (per Judge Cohill) found that fraudulent acts, which are alleged predicate acts in RICO claims, must be plead with specificity. *f ...


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