The opinion of the court was delivered by: SYLVIA H. RAMBO
Plaintiff brings the captioned action alleging that Defendant Peerless has engaged in price discrimination and other unlawful activities in favor of defendant Walker and against Plaintiff, and that Defendants conspired to eliminate Plaintiff as a competitor. Before the court are Defendants' motions for partial summary judgment on Counts II, III, and IV of the complaint.
The following facts are undisputed by the parties. Plaintiff Luzerne and Lackawanna Supply Co. ("L & L") is a Pennsylvania corporation with its principal place of business in Wilkes-Barre, Pennsylvania. (Statement of Material Facts ("SMF") at P 3.) Defendant Peerless Industries, Inc. ("Peerless") is a Pennsylvania corporation with its principal place of business in Boyertown, Pennsylvania. (Id. at P 1.) Defendant R. J. Walker Co., Inc. ("Walker") is a Pennsylvania corporation with its principal place of business in Scranton, Pennsylvania. (Id. at P 2.)
Walker and L & L both purchase products, particularly residential boilers, from Peerless. Plaintiff alleges that it has received unfavorable pricing, terms and services by Peerless, compared to Walker, and that such conduct is actionable pursuant to the Clayton, Sherman and Robinson-Patman Acts. (Compl. at PP 1, 9-11.) It further alleges that defendant Walker, beginning in 1989, devised a plan to eliminate Plaintiff as a competitor in the wholesale boiler business in Northeastern Pennsylvania. (Id. at P 13.) To that end, it entered a conspiracy with Peerless precipitating this lawsuit. (Id. at PP 13-14.)
Before the court are two motions for summary judgment, one by defendant Peerless, for summary judgment on Counts II and III, and one by defendant Walker, for summary judgment on Count IV. Both contend that this court has no jurisdiction over Plaintiff's claims under to §§ 2(a) and (e) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. §§ 13(a) and (e), since none of the pertinent transactions took place in interstate commerce, as statutorily required.
I. Summary Judgment Standard
The court will consider this motion under the accepted standards for the award of summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The United States Court of Appeals for the Third Circuit has recently summarized those standards in a concise and helpful way:
Summary judgment may be entered if "the pleadings, deposition[s], answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, [248,] 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Equimark Comm. Finance Co. v. C.I.T Financial Serv. Corp., 812 F.2d 141, 144 (3d Cir. 1987). If the evidence is "merely colorable" or "not significantly probative" summary judgment may be granted. Anderson, 106 S. Ct. at 2511; Equimark, 812 F.2d at 144. Where the record, taken as a whole, could not "lead a rational trier of fact to find for the nonmoving party, summary judgment is proper." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir. 1987). The parties' burdens in summary judgment may be described in the following way: Once the moving party has shown an absence of evidence to support the claims of the nonmoving party, the nonmoving party must do more than simply sit back and rest on the allegations of the complaint. She must "go beyond the pleadings and her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' and designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the nonmovant bears the burden of persuasion at trial, "the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden at trial." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987).
In Count II, Plaintiff alleges that Peerless engaged in price discrimination against Plaintiff, and in Count III, that Peerless discriminated in its provision of services in connection with its sales of boilers to Plaintiff. (Compl. at PP 21-24, 26-29.) Plaintiff brings Counts II and III under §§ 2(a) and (e) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. §§ 13(a) and (e). Section 2(a) provides:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such are in commerce, . . . where the effect of such discrimination may be substantially . . . to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination.
15 U.S.C. § 13(a). To prevail under this section, a plaintiff must show that the subject commodities were within commerce, that is, that they crossed state lines. As this court has previously stated:
The initial requirement that must be met in § 2(a) claims is that the person be engaged in commerce. It is well settled that the scope of the definition of "in commerce," as used in § 2(a) of the Clayton Act is much more limited than the scope applied in Sherman Act cases. The "in commerce" language of § 2(a) requires that at least one of the alleged discriminatory transactions occurs "in" commerce, rather than merely have an "effect upon" commerce.
To establish the "in commerce" requirement in order to plea a prima facie case under § 2(a), one is required to allege, and support if challenged,
1. That the alleged discriminatory seller must be "engaged" in commerce, such that his business activities, in fact cross state lines. Brosious v. Pepsi-cola Co., 155 F.2d 99 (3d Cir. 1946).
2. That the alleged discrimination must have occurred in the course of such commerce; the mere fact that the seller is engaged in commerce is not enough, the alleged violation must arise out of the interstate aspect of the seller's business. Moore v. Mead's Fine Bread Co., 348 U.S. 115, 99 L. Ed. 145, 75 S. Ct. 148 (1954), reh'g denied, 348 U.S. 932, 99 L. Ed. 731, 75 S. Ct. 334 (1955).
R.S.E., Inc. v. Pennsy Supply, Inc., 489 F. Supp. 1227, 1232 (M.D. Pa. 1980) (citations omitted).
It shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such ...