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February 7, 1989


The opinion of the court was delivered by: WEBER

 Understanding of the present case requires a little understanding of the history of the Port of Erie and its geography. Forty years ago most of the properties along the south shoreline of Presque Isle Bay including water lots, docks and piers, were owned by the Pennsylvania Railroad Company and leased to its affiliates or customers who operated marine related businesses thereon. They included the Ore Dock, which involved a large crane for unloading incoming iron ore carried by water carriers from the mines for transhipment to steel mills; the Coal Dock which loaded coal, brought to the site by rail for transport by water to various Great Lakes Ports; Grain Elevator Dock to receive, unload, shore and tranship grain from water borne carriers to rail carriers; and sand docks which received lake sand dredged from Lake Erie by water borne vessels for either local use or transhipment.

 The ore and coal operations ceased, and the Pennsylvania Railroad began to dispose of these properties during its Bankruptcy administration.

 All of the properties involved here were once owned by the Pennsylvania Railroad Company, and all of the business entity parties here, including plaintiff, were at one time tenants of the Pennsylvania Railroad Company, at their present, or, in the case of plaintiffs, former locations.

 The Erie-Western Pennsylvania Port Authority was organized under the Pennsylvania Third Class City Port Authorities Act (55 Pa.S.A. § 571 et seq.) which gives it broad powers relating to the acquisition and lease of Erie-bayfront properties. The Port Authority became the owner of the properties involved in the dispute here. Defendants Erie Sand and Gravel, Erie Navigation, Inc., and Erie Sand Steamship Co. were the occupants of the Sassafras Street dock site and the Ore Dock site under leases from prior owners, which the Port Authority have extended from time to time through the present.

 Plaintiff Erie Builders Concrete was originally lessee from the Pennsylvania Railroad Company at a location generally known as the Cascade Docks, and continued that relationship under a successor in title, Perry Shipbuilding Corporation. The lease contained a 90 day termination clause, and Perry served notice of such termination on May 5, 1986. Erie Builders filed an action in the Court of Common Pleas of Erie County contesting the termination, which was dismissed by summary judgment on August 7, 1986.

 On March 18, 1987 at a meeting of the Port Authority it was decided that a lease would be granted to Plaintiff for the Grain Elevator Dock site for one year until March 31, 1988. This lease was extended on April 15, 1988 to December 31, 1988. The extension lease (Port Authority Exhibit 16) provided that

Tenant unconditionally guarantees that it will seek no further extensions of this lease. Tenant further guarantees that it will cease doing business on the Premises on or before December 31, 1988 and that it will vacate the Premises without fail on or before February 5, 1989.
The Landlord and the Tenant specifically stipulate that there is no ongoing responsibility by the Landlord to relocate the Tenant to any other site or location upon the expiration of this lease. The Tenant further understands and assumes that it is its sole responsibility to obtain another site for the conduct of its business on or before December 31, 1988, and that its failure to obtain such location will not in any way cause this lease to be extended or result in any delay in the Tenant's prompt and timely cessation of business and vacation of the premises in accordance with the terms hereof.

 Plaintiffs did seek a further extension thereafter but the Port Authority has not acted on these.

 On November 5, 1988 plaintiffs filed this broad sweeping equitable action against the various defendants named seeking injunctive and other equitable and declaratory relief.

 The Complaint is stated in 9 counts against the various defendants:

Count I Sherman Act Sec. 1 vs. Port Authority Essential facility
Count II Sherman Act Sec. 1 vs. Port Authority Rule of Reason
Count III Sherman Act Sec. 2 vs. all Defendants Monopolization
Count IV Sherman Act Sect. 2 vs. all Defendants Attempted Monopolization
Count V Sherman Act Sec. 1 and 2 vs. all Defendants Conspiracy to Monopolize
Count VI Clayton Act 7 vs. all Defendants Acquisition in attempt to create monopoly
Count VII Robinson Patman Act vs. Private Defendants Withdrawn
Count VIII Section 1983 vs. Port Authority and Private Defendants Civil Rights Act - denial of bid monopoly
Count IX Pennsylvania v. Port Authority Pa. Law Claims of unfair trade


 Defendant Port Authority argues that the Local Government Antitrust Act 15 U.S.C. § 35(a) makes local governments immune from damages, interest on damages, costs or attorney's fee arising under the antitrust laws. This is absolute regardless of whether the local governmental body acted within its regulatory authority. Zapata Gulf Marine v. P.R. Maritime Shipping Authority, 682 F. Supp. 1345 (E.D. La. 1988).

The Act applies to any (other) special function governmental unit established by State Law . . . 15 U.S.C. 34(1)(B).

 Reviewing the Pa. Third Class City Port Authority Act and the broad range of powers granted thereunder we have no doubt that the Act applies to the Port Authority here. The Complaint pleads for equitable relief and money damages and the claims for actual damages, punitive damages, treble damages under the antitrust laws, costs, expenses and attorneys fees must be dismissed.

 Nevertheless this Act does not apply to Plaintiffs' claims for equitable relief.

 With respect to the antitrust claims all defendants raise the defense that the state action doctrine set forth in Parker v. Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943) exempts the Port Authority from antitrust liability.

 In Brown the California legislature enacted a statute regulating the commerce in raisins and gave the Director of Agriculture and State Agricultural Prorate Commission, and other bodies appointed by the state, wide powers of regulation and enforcement. On a challenge under the Sherman Act, the Court held that the Sherman Act did not apply here because the Commission

derived its authority and its efficacy from the legislative command of the state and was not intended to operate or become effective without that command. We find nothing in the language of Sherman Act or in its history which suggests that its purpose was to retrain a state of its officers or agent from activities directed by its legislature . . . (p.350).
The Sherman Act makes no mention of the state as such, and gives no hint that it was intended to restrain states action or official action by the state. (p.351).

 The state action exemption has been further defined by a number of cases in the Supreme Court and in the inferior federal courts. In City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 55 L. Ed. 2d 364, 98 S. Ct. 1123 (1978), the Court held the state action exemption to apply where ...

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