concerning the status of Maryland National Bank's payments to Dauphin Deposit on the Stafford account.
53. Carey Jackson responded that no one would be available to meet with Dauphin Deposit officials on July 5, 1984. He did not request any further information from Archie Battistelli.
54. On July 5, 1984, Archie Battistelli met with Frank Lucero to explain what was involved in calling a loan and to obtain Whitmoyer Laboratories' list of accounts receivable. Archie Battistelli advised Frank Lucero that Dauphin Deposit was freezing the Stafford Labs bank account and that Frank Lucero had to pay 1.1 million dollars on July 5, 1984 in order to prevent foreclosure by Dauphin Deposit. It is disputed whether defendants induced Frank Lucero to contact Maryland National Bank and prompt their payment to Dauphin Deposit.
55. On July 5, 1984, after his meeting with Archie Battistelli, Lucero contacted Carey Jackson and told him that Dauphin Deposit was pursuing him for some reduction in his line of credit and to inquire whether Maryland National Bank would pay off Stafford's line of credit with Dauphin Deposit.
56. It is disputed that Archie Battistelli spoke with Henry Rhoads and Fred Wolfson, Dauphin Deposit's legal counsel in Lebanon County, both before and after his meeting with Frank Lucero.
57. It is disputed that Henry Rhoads advised Archie Battistelli to answer all questions asked by Carey Jackson concerning the 1983 Touche Ross statement fully and truthfully but not to volunteer any information concerning Dauphin Deposit's attempts to verify the accuracy of the Touche Ross financial statement received from Frank Lucero in April of 1984.
58. Archie Battistelli spoke with Carey Jackson on the morning of July 5, 1984, and stated that Dauphin Deposit wanted the loan paid in full. It is disputed whether Archie Battistelli advised Carey Jackson that Dauphin Deposit's loan with Stafford had been called and that Dauphin Deposit was proceeding against its collateral.
59. In response to Battistelli's request for payment, Jackson responded that it was impossible for Maryland National Bank to take out the Dauphin Deposit loan, given the outstanding loan facility, but that Maryland National Bank might be able to advance between $200,000 and $300,000.
60. Carey Jackson spoke with Battistelli on the phone, after consulting with his superiors, and offered to advance $200,000 to $300,000 to Dauphin Deposit. During that conversation Carey Jackson and Archie Battistelli agreed that Maryland National Bank would advance $600,000 to Dauphin Deposit.
61. Carey Jackson did not solicit any information concerning the 1983 Touche Ross statement during that telephone conversation.
62. Archie Battistelli did not volunteer any information concerning suspicions regarding the authenticity of the 1983 Touche Ross statement. However, it is disputed that Archie Battistelli acted in good faith on the advice of counsel.
63. Maryland National Bank wired Dauphin Deposit $600,000 on the afternoon of July 5, 1984 to reduce Stafford's line of credit with Dauphin Deposit to approximately $500,000.
Summary judgment is appropriate only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Further, when a summary judgment motion is supported by depositions and exhibits, the non-moving party may not rely on the pleadings alone but must either produce evidence demonstrating the existence of a genuine issue of material fact or establish her right to relief as a matter of law. Bank of America National Trust and Savings Association v. Hotel Rittenhouse Associates, 595 F. Supp. 800, 808 (E.D.Pa. 1984). Defendants' Motion for Summary Judgment presents several issues which the court shall address seriatim.
First, defendants contend that summary judgment must be granted on plaintiff's RICO counts where plaintiff has failed to establish that defendants participated in a pattern of racketeering activity. The definitions section of the RICO Act states, "'pattern of racketeering activity' requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity." 18 U.S.C. § 1961(5). Although this question was not specifically before the Supreme Court, some guidance as to what was necessary to fulfill the pattern requirement was provided in Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).
Courts have taken various approaches to the pattern requirement in RICO. Some courts required that the multiple predicate acts be related and ongoing in nature to constitute a pattern. Paul S. Mullin and Assoc., Inc. v. Bassett, 632 F. Supp. 532 (D.Del. 1986); Bush Development Corp. v. Harbour Place Associates, 632 F. Supp. 1359 (E.D.Va. 1986); Allington v. Carpenter, 619 F. Supp. 474 (C.D.Cal. 1985). Other courts found that multiple related predicate acts in a single fraudulent scheme would be enough to establish a pattern. R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir. 1985); Trak Microcomputer Corp. v. Wearne Bros., 628 F. Supp. 1089 (N.D.Ill. 1985); Conan Properties, Inc. v. Mattel, Inc., 619 F. Supp. 1167 (S.D.N.Y. 1985).
In Sedima, the Court stated,
the extraordinary uses to which civil RICO has been put appear to be primarily the result of the breadth of the predicate offenses, in particular the inclusion of wire, mail and securities fraud, and the failure of Congress and the courts to develop a meaningful concept of "pattern."