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Arnold Pontiac-Gmc Inc. v. Budd Baer Inc.

filed: August 24, 1987.

ARNOLD PONTIAC-GMC, INC., APPELLANT
v.
BUDD BAER, INC., T/D/B/A BUDD BAER BUICK-PONTIAC, A PENNSYLVANIA CORPORATION, WILLIAM L. OLIVERIO, AN INDIVIDUAL T/D/B/A OLIVERIO BUICK-OPEL AND OLIVERIO BUICK-OPEL, INC., A PENNSYLVANIA CORPORATION, SUCCESSOR TO WILLIAM L. OLIVERIO, T/D/B/A OLIVERIO-BUICK-OPEL, SAMSON BUICK CO., CORPORATION, A PENNSYLVANIA CORPORATION, AND LEEBRO MANAGEMENT, INC., A PENNSYLVANIA CORPORATION T/A/D/B/A SAMSON BUICK CO., SUCCESSOR TO SAMSON BUICK CO., AND MASSEY BUICK, INC., A PENNSYLVANIA CORPORATION



On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 84-762.

Sloviter and Stapleton, Circuit Judges, and Longobardi, District Judge.*fn*

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

I.

Appellant Arnold Pontiac-GMC, Inc. (Arnold Pontiac), an automobile dealer with a Pontiac and GMC truck franchise, brought this antitrust action against four automobile dealers with Buick franchises from the same area,*fn1 alleging that the defendants had conspired together and with General Motors Corporation (GMC) to prevent Arnold Pontiac from receiving a franchise to sell Buick automobiles. Arnold Pontiac claimed that the alleged conspiracy violated sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2. The district court granted summary judgment for the defendants.

Briefly, the facts alleged are that from 1969 to 1980, Arnold Pontiac, an authorized dealer of Pontiac automobiles and GMC trucks, sought to add a Buick franchise to its dealership in Houston, Pennsylvania. Prior to 1980, GMC had refused to award such a franchise unless Robert S. Arnold, the co-owner of Arnold Pontiac, agreed to provide a more modern facility in a more desirable location. In February 1980, Arnold again applied to GMC for a Buick franchise, stating that he had made substantial improvements to his existing facility. GMC officials then visited the site. Although Arnold was never explicitly told he would be awarded a franchise, he was given order forms for new Buicks.

On April 3, 1980, the Better Buy Buick Association, an organization of Pittsburgh area Buick dealers, held a sales promotion meeting with R. F. Pfeiffer, who was Buick's Assistant Zone Manager for Pittsburgh. Pfeiffer prepared a memorandum to G. B. Shane, the Zone Manager for Buick in Pittsburgh, reporting that at the conclusion of the sales promotion meeting, he had a meeting with Messrs. Gray, Oliviero, Baer and Samson (representatives of each of the four defendant dealers) which was requested by Gray "to discuss Buick's closing of the open point in Canonsburg, Pa. "The "open point" apparently refers to the absence of any Buick dealer in the Canonsburg area.

The Pfeiffer memorandum reported that Samson, one of the dealers, told Pfeiffer that the "Advertising Dealer Group" had a meeting "and agreed" that if Buick granted a new franchise in Arnold's area, "they, as a group would take action not to purchase any of [Buick's] programs or cooperate with us in any of our endeavors." App. at 110. According to the memorandum, the dealer representatives questioned Pfeiffer in particular concerning the plan to give a Buick franchise to Arnold Pontiac. Pfeiffer reported that he gave them no information, and stated:

They may want to meet with you and myself this next week some time to review our position. I also advised them that it was their prerogative to take what action they deemed necessary, but I first suggested that they discuss this situation with you. Mr. Gray asked that you call him Monday some time.

App. at 111.

Shortly thereafter, Shane returned to Arnold the order forms for new Buicks that Arnold had filled out. Shane explained that Buick had not yet acted on his franchise application. In September 1980, Buick officials informed Arnold that his facility was inadequate. At that time, Arnold was asked to sign a "Facility Modification" letter, which would obligate him to build or acquire new facilities within three years. Arnold apparently refused to do so. In January 1981, Arnold was told that his franchise application had been rejected.

Arnold Pontiac then filed an action against GMC, alleging that GMC's actions violated the Sherman Act and the Automobile Dealers' Day in Court Act, 15 U.S.C. §§ 1221-25 (1982). After the district court granted summary judgment for GMC on the Sherman Act count in that case, plaintiff instituted a second action against the dealers, filing the complaint in this case.

Arnold Pontiac's complaint seems to contain two claims. First, it claims that the defendants "combined and conspired with each other and with General Motors Corporation in restraint of trade" to prevent Arnold Pontiac from receiving a Buick franchise. Complaint para. 18, App. at 10. Arnold Pontiac's brief explains this paragraph as alleging a "horizontal market allocation" in violation of section 1 of the Sherman Act. See Brief of Appellant at 24. Its brief also characterizes defendants' activity as a "group boycott". See id. at 26. We are unable to determine from the sparse allegations of plaintiff's complaint and its brief whether it regards these terms as synonymous. Arnold Pontiac's ...


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