The opinion of the court was delivered by: HUYETT
Summary judgment is appropriate if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). The court does not resolve questions of disputed fact, but simply decides whether there is a genuine issue of fact which must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Ettinger v. Johnson, 556 F.2d 692 (3d Cir. 1977). Any reasonable doubt as to the existence of a genuine issue of material fact is to be resolved against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982); Toebelman v. Missouri-Kansas Pipe Line Co., 130 F.2d 1016, 1018 (3d Cir. 1942). However, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 105 S. Ct. at 2511 (citations omitted). The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury, or whether it is so one-sided that one party must prevail as a matter of law. Id.
For the reasons which follow, I will grant summary judgment in favor of the plaintiff and against defendant Schuylkill Memorial Park for liability arising from the tying arrangement. I will grant summary judgment in favor of defendants Schuylkill and Centurion and against plaintiff on the conspiracy claim. Because the plaintiff has failed to put forth any argument in support of its motion for summary judgment on the state law claim, I am unable to decide that issue at this time. However, I grant plaintiff leave to renew the motion within twenty days of the date of this order.
Before addressing the merits of this case, I must consider defendant Schuylkill's argument that the plaintiff has failed to show an effect on interstate commerce sufficient to give this court jurisdiction.
Where plaintiff's jurisdictional allegations are challenged, plaintiff must demonstrate by submission of evidence beyond the pleadings that an intrastate activity has a not insubstantial effect on interstate commerce. McClain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246, 62 L. Ed. 2d 441, 100 S. Ct. 502 (1980). The plaintiff may meet its burden by showing that "either the activities of the target of the antitrust violation or defendants' activities" have the necessary effect on interstate commerce. United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1192 (3d Cir. 1984), cert. denied, 470 U.S. 1029, 84 L. Ed. 2d 785, 105 S. Ct. 1397 (1985). In considering whether it has jurisdiction, the court is not limited to the question of whether the alleged violation, in and of itself, has an effect on interstate commerce. The court may look generally to the parties' activities in the manufacture, sale, and installation of burial vaults and in the sale of burial lots. McClain, 444 U.S. at 242-43.
As is discussed in greater detail, infra, plaintiff has shown that approximately 57% of the raw materials it uses in the manufacture of burial vaults are purchased through interstate commerce. For the 1,618 vaults manufactured in 1986, this amounted to $48,375.81. In addition, plaintiff purchases heavy equipment and various other supplies which are not directly affected by the tying practice.
Plaintiff's business activities clearly have a substantial effect on interstate commerce. Therefore, the plaintiff has established that the court has jurisdiction under the Sherman Act.
In order to establish a per se tying violation, the plaintiff must prove three elements by a preponderance of the evidence:
1) That the seller has conditioned the sale of one product on the purchase of another;
2) That the seller had sufficient economic power with respect to the tying product to appreciably restrain competition in the ...