The opinion of the court was delivered by: SHAPIRO
Plaintiffs Holt Cargo Systems, Inc. ("Holt Cargo"), Holt Hauling & Warehousing, Inc. ("Holt Hauling") and Astro Holdings, Inc. ("Astro") (collectively the "plaintiffs"), alleging violations of their substantive due process and equal protection rights under 42 U.S.C. § 1983, filed this action against defendants the Delaware River Port Authority ("DRPA"), the Port of Philadelphia & Camden, Inc. ("PPC") and Philadelphia Regional Port Authority ("PRPA") (collectively the "defendants"). Defendants move for summary judgment on both counts or, in the alternative, for summary judgment on damages. For the reasons stated below, defendants' motions will be granted.
Plaintiffs filed their initial Complaint on December 28, 1994; they then filed an Amended Complaint. Defendants moved to dismiss the Amended Complaint. By Memorandum and Order dated April 19, 1996, the court granted the motion as to plaintiffs' admiralty claim but denied the motion as to plaintiffs' claims under § 1983. See Holt Cargo Sys., Inc. v. Delaware River Port Auth., 1996 U.S. Dist. LEXIS 5323, No. 94-7778, 1996 WL 195390 (E.D. Pa. Apr. 19, 1996) ["Holt I "]. Certain other claims were severed and stayed pending a determination of this court's jurisdiction under federal maritime law and the Shipping Acts of 1984. The court inquired of the Federal Maritime Commission ("FMC") whether it wished to participate as amicus curiae. The FMC moved for leave to appear and filed a Statement of Points and Authorities. The court gave the parties leave to respond but on May 16, 1996, plaintiffs dismissed all claims before the court other than those under § 1983 and filed similar claims with the FMC. The antitrust and contract claims have been voluntarily dismissed without prejudice by the plaintiffs. Defendant PRPA's counterclaim, alleging violations of the Amended Packer Lease, was also dismissed without prejudice. The action before the FMC, assigned to Administrative Law Judge Frederick M. Dolan, Jr. ("Judge Dolan"), remains pending.
The Holt entities' FMC Complaint against defendants and non-party Pasha alleges violations of the Shipping Acts of 1984, 46 U.S.C. §§ 1701 and 1916, and 46 U.S.C. § 801. PRPA, PPC, DRPA and Pasha moved to dismiss the FMC action for lack of jurisdiction and failure to state a claim, or in the alternative for a more definite statement. Judge Dolan denied those motions without prejudice on November 25, 1996 to allow the Holt parties discovery on jurisdictional issues. Issues under the Shipping Acts are not before this court; the constitutional issues are not before the FMC.
Plaintiffs filed a Second Amended Complaint on June 16, 1996; that pleading was stricken by Order entered October 14, 1997. Plaintiffs then filed a revised Second Amended Complaint. Defendants moved to dismiss the revised Second Amended Complaint. By Memorandum and Order dated November 13, 1997, the court granted the motion as to plaintiffs' claim for violation of procedural due process, but denied the motion as to plaintiffs' claims for violation of equal protection and substantive due process. See Holt Cargo Sys., Inc. v. Delaware River Port Auth., 1997 U.S. Dist. LEXIS 18073, No. 94-7778, 1997 WL 714843 (E.D. Pa. Nov. 13, 1997) ["Holt II "]. After more than three years of protracted and contentious discovery,
the undisputed facts and those viewed in the light most favorable to plaintiffs establish the following.
I. Packer Avenue Marine Terminal
The Packer Avenue Marine Terminal ("Packer") is a 106 acre marine facility; it is the largest and most modern marine terminal in operation on the Delaware River. (T. Holt, Jr. Dep. at 250-51). Packer is located at the southern end of the port closest to the Atlantic Ocean. (T. Holt, Jr. Dep at 231; Defs.' Appendix 528, 538-39, 542). Packer is adjacent to PPC's Ameriport Intermodal Yard, a transfer facility to introduce cargo onto national rail lines; this proximity reduces transfer costs. Holt Hauling has no interest in Packer.
Holt Cargo, a stevedoring company owned by Thomas Holt, Sr. ("Holt, Sr."), operates in the Philadelphia and Camden Port District (the "Port District"). (T. Holt, Sr. Dep. at 23-26). Holt Cargo leased Packer from PRPA on December 30, 1990 (the "Amended Packer Lease"). (Defs.' Appendix at 1-234).
Under the Amended Packer Lease, Holt Cargo has the right to lease Packer and operate it for a ten-year period, with four ten-year renewal options, i.e., a total of fifty years. (Amended Packer Lease at §§ 2.2, 2.3). The Amended Packer Lease requires Holt Cargo to handle all new container business "which it secured for Delaware River Marine Terminal facilities" at Packer. (Id. at § 4.2). Holt Cargo is permitted to operate Packer as a closed facility; that is, Holt Cargo is the sole stevedore for any ships arriving at Packer. The agreement also prohibits Holt Cargo from removing the cranes located at Packer prior to termination of the lease. (Id. at § 7.3(b)). PRPA agreed to buy one of Holt Cargo's cranes, called the PACECO Crane; the price ultimately agreed upon was about $ 5,500,000. (Defs.' Appendix at 945-46). PRPA also agreed to make capital improvements at Packer in the amount of $ 16,000,000. (Amended Packer Lease at Art. VII; Ex. H).
The Amended Packer Lease gives Holt Cargo the right to develop other parcels of land known as the "Additional Parcels" subject to PRPA's existing leases with third-parties. (Amended Packer Lease at § 24.2). The Additional Parcels are defined as Piers 96 South, 98 South and 100 South. The Amended Packer Lease gives Holt Cargo the exclusive right to develop the Additional Parcels, subject to existing PRPA leases, during the initial ten year term of the Holt Cargo lease, and non-exclusive development rights during the subsequent renewal terms. (Id.). The Amended Packer Lease permits PRPA to "disapprove any aspect" of a proposed development plan "in its sole discretion." (Id. at § 24.2(d)(iii)). Under the Amended Packer Lease, PRPA agrees to support applications for development permits at the Publicker Terminal ("Publicker"). (Id. at P 26).
On June 14, 1991, Holt Cargo assigned its interests under the Amended Packer. Lease to Astro (Compl. PP 6-7);
on the same date, Astro sub-leased part of Packer back to Holt Cargo for the amount of rent charged by PRPA, plus approximately 15%. (Amended Packer Lease at 24). Astro has subsequently sub-leased portions of Packer to additional companies, some of which are owned or controlled by Holt, Sr.
Holt Hauling owns the Gloucester Terminal ("Gloucester"), a New Jersey marine terminal across the Delaware River from Packer. Gloucester competes with Packer for refrigerated cargo, steel, break bulk and container shipping. (Pltffs.' Pretrial Memo at 3).
Prior to entering into the Amended Packer Lease with PRPA in 1989, Holt Cargo provided stevedoring services at Gloucester. (T. Holt, Sr. Dep. at 39). From then until 1992, Holt Hauling operated Gloucester with International Longshoreman Association ("ILA") labor. At the end of 1992, Holt Hauling temporarily closed Gloucester until late 1993 or early 1994. Holt Hauling now leases this facility to tenants providing stevedoring, warehousing and other terminal services. (Compl. P 10). These tenants, some of whom are owned in whole or in part by Holt family members, operate with non-ILA labor. (W. Curran Dep. at 25-26).
Gloucester is also at the southern end of the port, closest to the Atlantic Ocean; ships berthing there do not need to navigate under the Walt Whitman or Benjamin Franklin Bridges.
Defendant DRPA is a public corporate entity created by the Commonwealth of Pennsylvania and the State of New Jersey by interstate compact (the "Amended Compact") under the Interstate Compact Clause, U.S. Const. art. I, § 10, cl. 3. See Pa. Stat. Ann. tit. 36, § 3503; N.J. Stat. Ann. § 32:3-1, et seq. Congress and the President approved the Amended Compact on October 27, 1992. See 106 Stat. 3576 (1992). DRPA's purpose is to promote the Port District and eliminate intra-port competition and "churning" of cargo among companies competing in the Port District.
Defendant PPC is a public corporate entity of the Commonwealth of Pennsylvania and the State of New Jersey. PPC is a subsidiary of DRPA; DRPA formed PPC under the terms of the Amended Compact in 1994. (Compl. PP 13, 35). PPC's purpose is to carry out DRPA's mission to unify the Port District and prevent harmful intra-port competition.
Defendant PRPA is a public entity created by the Commonwealth of Pennsylvania to promote port development in southeastern Pennsylvania. PRPA owns marine terminals and other facilities in the Philadelphia region of the Port District. (Compl. P 11). PRPA owns Packer, Piers 84, 86 and 96 South, 98 South and 100, the Tioga Marine Terminal and the Tioga Container Terminal. (Compl. P 11). PRPA has leased some of these facilities to Holt Cargo and other third-parties.
VII. Non-defendant Co-conspirators
Plaintiffs have named several non-defendant co-conspirators. These include: South Jersey Port Corporation ("SJPC"), a public entity of the State of New Jersey owning and operating Broadway Marine Terminal ("Broadway") and Beckett Marine Terminal ("Beckett"); PASHA Auto Warehousing, Inc. ("Pasha"), a PRPA lessee of Pier 96 South; James McDermott ("McDermott"), PRPA's executive director; Paul DeMariano ("DeMariano"), PPC's president and chief executive officer ("CEO"); Paul Drayton ("Drayton"), DRPA's executive director; and Joseph Balzano ("Balzano"), SJPC's CEO (collectively the "executive directors"). (Compl. PP 14-17).
VIII. Unification of the Port District
In 1992, Pennsylvania and New Jersey agreed to unify the Port District to eliminate intra-port competition and "churning" of cargo and to strengthen the Port District's ability to compete against other regional ports. (Compl. PP 22, 25). Pennsylvania and New Jersey both enacted legislation (the "Unification Acts") to unify the Port District. See Pa. Stat. Ann. tit. 36 § 3503; N.J. Stat. Ann. § 32:3-1, et seq. ; (Compl. P 26.) Congress and the President approved the Amended Compact on October 27, 1992. See 106 Stat. 3576 (1992); (Compl. P 26.)
Unification of the Port District was intended to place the power to maintain the Port District in DRPA and its subsidiary, PPC. (Compl. P 31). Unification of the Port District was supposed to occur within two years of the Amended Compact's approval, i.e., October 27, 1994 (the "unification date"). See id. at P 32. After unification, PPC was to take over PRPA's and SJPC's functions. See id. at P 34. The executive boards of PRPA, SJPC and DRPA approved a Term Sheet in 1994 to govern the merger of PRPA and SJPC into PPC. See id. at 36. Plaintiffs assert all port development activities after unification were to be conducted solely by DRPA or its subsidiary PPC.
Plaintiffs claim unification occurred de jure on the unification date. Alternatively, unification occurred de facto "because DRPA, PPC, PRPA and SJPC have joined together to control the Port District, both pursuant to the Term Sheet approved in 1994 and by joint adoption of business plans and goals by the boards and Executive Directors of DRPA, PPC, PRPA and SJPC, even though a final merger has technically not taken place." Id. at PP 37-38. PPC's 1994-95 Handbook states unification "became a reality in 1994." Id. at PP 39-40.
The Amended Compact provides that DRPA shall prepare a comprehensive master plan (the "master plan") for the development of the Port District to include "plans for construction, financing, development, reconstruction, purchase, lease, improvement and operation of any terminal, terminal facility, transportation facility or any other facility of commerce or economic development activity." Amended Compact, art. XII(7); Compl. P 27.
"Prior to adopting such master plan, the commission shall give written notice to, afford a reasonable opportunity for comment, consult with and consider any recommendations from State, county and municipal government, as well as commissions, public corporations and authorities from the private sector." Id. If DRPA modifies or changes the master plan, it must follow these same procedures. See id.
When DRPA authorizes any "project or facility," it must provide the governor and legislature of both states with a "detailed report on the project." Amended Compact, art. XII(7). In those reports to the two states, DRPA "shall include therein its findings which fully set forth that the facility or facilities operated by private enterprise within the Port District and which it is intended shall be supplanted or added to are not adequate." Amended Compact, art. IV(q); Compl. P 28.
In 1994, DRPA, PPC, PRPA and SJPC produced a "Strategic Business Plan" providing for "a unified government agency to take over the entire Port District" by purchasing PRPA leases with private businesses so that "the private sector would not be the operator of the facilities." Id. at PP 41-42. PRPA sought "not only to be a lessor, but to operate its marine terminals with the aid of SJPC and in competition with Holt Cargo, Astro, and Holt Hauling." Id. at P 45.
Holt Cargo's fifty-year amended lease, its plan to develop the Publicker Site, Pier 96 South and the additional parcels, and Holt Hauling's ownership and operation of the Gloucester Terminal "stood in the way of the hidden goal of total government ownership, operation, and control of the Port District." Id. at P 46. PRPA informed the other defendants it had no right to condemn the property covered by the amended lease. See id. at P 47. PRPA, SJPC, DRPA and PPC could not afford to purchase the property of the plaintiffs. See id. at P 48.
Therefore, DRPA, PPC, PRPA and SJPC allegedly entered into a conspiracy to obtain control of the entire Port District, including the marine terminals controlled by the plaintiffs, by driving Holt Cargo, Astro and Holt Hauling from the Port District. See id. at PP 49, 50. DRPA, PPC, PRPA and SJPC sought to obtain the customers of Holt Cargo and Holt Hauling. See id. at P 53.
Plaintiffs base their equal protection and substantive due process claims on the following seven alleged predatory acts by PRPA, with whom DRPA and PPC allegedly conspired: (1) PRPA agreed to join with Holt Cargo and Astro in an application for environmental permits to develop the Publicker Site and the additional parcels and then arbitrarily and in bad faith withdrew its support, (Id. at PP 55-60); (2) PRPA and Pasha have arbitrarily and in bad faith denied Holt Cargo and Astro rights under the Amended Packer Lease to use and develop Pier 96 South, (Id. at PP 61-65); (3) in October, 1994, PRPA arbitrarily threatened to evict Holt Cargo and Astro from the Packer Avenue Terminal, although it knew Holt would have to report this eviction notice to its lenders, customers and prospective financing sources, (Id. at PP 66-70); (4) PRPA arbitrarily refused to honor its obligations under the Amended Packer Lease "to dredge berths, provide capital improvements, and repair property, including container cranes," and DRPA arbitrarily refused to provide funds to PRPA for dredging, (Id. at PP 71-75); (5) DRPA, PPC and PRPA jointly published advertisements falsely claiming to operate the Packer Avenue Terminal in order to mislead prospective customers into contacting them for business, (Id. at PP 76-78); (6) PRPA arbitrarily refused to lease Piers 82 and 84 to another Holt-related company planning to use Holt Cargo for stevedoring, (Id. at PP 79-83); and (7) PRPA and SJPC have diverted customers from Holt Cargo and Holt Hauling by offering subsidized rates, free rent and other benefits to competitors, solely to cause economic loss to Holt Cargo and Holt Hauling. (Id. at PP 84-86).
Summary judgment may be granted only "if the pleadings, depositions, 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 judgment as a matter of law." Fed. R. Civ. P. 56(c). A defendant moving for summary judgment bears the initial burden of demonstrating there are no facts supporting the plaintiff's claim; then the plaintiff must introduce specific, affirmative evidence there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
The court must draw all justifiable inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. at 248. The non-movant must present sufficient evidence to establish each element of its case for which it will bear the burden at trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Rule 56(e) requires the presentation of evidence "as would be admissible" at trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 327; see, e.g., J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991). The non-moving party cannot rest upon conclusory allegations and unsupported speculation. See Medina-Munoz v. R.J. Reynolds Tobacco, 896 F.2d 5, 8 (1st Cir. 1990); Barnes Foundation v. Township of Lower Merion, 982 F. Supp. 970, 982 (E.D. Pa. 1997).
On April 19, 1996 and again on November 13, 1997, this court denied motions to dismiss plaintiffs' claims under § 1983 that state actors violated their rights to substantive due process and equal protection. In considering a motion to dismiss, the court must accept as true all factual allegations in the complaint and all reasonable inferences drawn therefrom and view them in the light most favorable to the non-moving party. See Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989). A motion to dismiss may be granted only if the court finds that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
The court then held that the law accorded substantive due process protection to a lessee's property against arbitrary or irrational conduct. "Plaintiffs' allegations in the complaint, drawing all permissible inferences therefrom in plaintiff's favor, state a property interest worthy of substantive due process protection." Holt Cargo Sys., Inc., 1996 WL 195390, at *4. "As to the alleged abuse of government power, defendants argue their acts were not arbitrary or irrational; they were necessary to fulfill their legislative duty to unify the ports. As part of the port unification plan, defendants are authorized to operate terminals and exercise eminent domain power, but defendants cannot engage in a campaign of harassment and disparagement to destroy Holt's business and obviate the necessity for exercise of eminent domain. Nor can defendants conspire to reduce the value of plaintiffs' businesses to acquire plaintiffs' assets for less than their actual worth. Regardless of the presumption of legislative rationality, legislative authority to unify the ports cannot constitutionally authorize destroying a business to take property without compensation." Id.
The issue now before the court is not what plaintiffs have alleged but whether plaintiffs have produced evidence from which a jury might rationally find that defendants have actually reduced the value of plaintiffs' business and taken unlawfully what they were authorized to take lawfully with due compensation. Denial of a motion to dismiss is always without prejudice to a motion for summary judgment at the end of discovery.
Similarly, "in order to state an equal protection claim where a statute or policy is facially neutral, plaintiffs must allege intentional discrimination, i.e., that plaintiffs are intentionally being singled out from a group of similarly situated persons." Id. Plaintiffs' allegation of intentionally discriminatory actions to injure their business by offering more generous lease terms to others similarly situated survived a motion to dismiss. But on a full record at the close of discovery (including three hundred pages of briefs and seven volumes of exhibits submitted by plaintiffs) the issue is not the same. Considering undisputed facts and all disputed facts as alleged by plaintiffs (if supported by any admissible evidence) without weighing credibility, the issue is whether plaintiffs have offered sufficient evidence from which a rational fact finder could find an unconstitutional denial of equal protection.
A genuine issue of material fact precludes summary judgment, but an issue of fact is "material" only if the dispute "might affect the outcome of suit under the governing law." Anderson, 477 U.S. at 248. If the evidence favoring the nonmoving party is "merely colorable," "not significantly probative," or amounts to only a "scintilla," summary judgment may be granted. See Anderson, 477 U.S. at 249-50, 252. Plaintiffs may not "build a case on the 'gossamer threads of whimsey, speculation and conjecture.'" Keller v. Bluemle, 571 F. Supp. 364, 371 (E.D. Pa. 1983), aff'd, 735 F.2d 1349 (3d Cir. 1984); see also Advo, Inc. v. Philadelphia Newspapers, Inc., 51 F.3d 1191, 1197 (3d Cir. 1995).
"Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
II. Eleventh Amendment Immunity (PRPA)
The Eleventh Amendment states, in relevant part, that the "Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." U.S. Const. amend. XI. The Eleventh Amendment also bars suits against a state by its own citizens, see Hans v. Louisiana, 134 U.S. 1, 17, 33 L. Ed. 842, 10 S. Ct. 504 (1890), and applies to suits against state agencies in federal court. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979). PRPA has moved for summary judgment on the ground that it is not a "person" under § 1983 because it is an agency of the Commonwealth of Pennsylvania, see Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), and is entitled to immunity under the Eleventh Amendment.
A court examines three factors in determining whether an entity is an "arm of the State" under the Eleventh Amendment: "1) Whether the money that would pay the judgment would come from the state (this includes three ... factors-- whether payment would come from the state's treasury, whether the agency has the money to satisfy the judgment, and whether the sovereign has immunized itself from responsibility for the agency's debts); 2) The status of the agency under state law (this includes four factors-- how state law treats the agency generally, whether the entity is separately incorporated, whether the agency can sue or be sued in its own right, and whether it is immune from state taxation); and 3) What degree of autonomy the agency has." Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir.), cert. denied, 493 U.S. 850, 107 L. Ed. 2d 107, 110 S. Ct. 148 (1989).
Although no single factor is dispositive of the Eleventh Amendment inquiry, the "most important" factor is whether a judgment against the entity in question would be paid out of the state treasury. See Christy v. Pennsylvania Tpk. Comm'n, 54 F.3d 1140, 1144 (3d Cir.), cert. denied, 116 S. Ct. 340 (1995).
A. State Liability for a Judgment Against PRPA
We consider first: 1) whether the money to pay a judgment against PRPA would come directly from the state treasury; 2) if not, whether PRPA has the funds to pay the judgment; and 3) whether Pennsylvania has immunized itself from responsibility for PRPA's debts. See Fitchik, 873 F.2d 655 at 659.
PRPA derives approximately sixty percent of its operating revenues from the Pennsylvania treasury, and the remaining forty percent from fees and rentals. The Philadelphia Regional Port Authority Act, which created PRPA, permits the expenditure of public moneys to support the authority, but that support is not mandated. See Pa. Stat. Ann. tit. 55, § 697.2(b). Where a state legislature could choose to appropriate funds to support an agency, but is not required to do so, such voluntary payments by the state do not trigger Eleventh Amendment immunity. Bolden v. SEPTA, 953 F.2d 807, 819 (3d Cir. 1991) (en banc), cert. denied 504 U.S. 943, 119 L. Ed. 2d 206, 112 S. Ct. 2281 (1992).
The Commonwealth has expressly immunized itself from liability for any judgment against PRPA:
The authority shall have no power, at any time or in any manner, to pledge the credit or taxing power of the Commonwealth or any political subdivision .... no obligations of the authority shall be deemed to be obligations of the Commonwealth or any of its political subdivisions .... [and] ... the Commonwealth ... shall not be liable for the payment of principal or interest on obligations of the authority....
55 Penn. Stat. Ann. tit. 55, § 697.6(c)(1), (3), (4). The restriction of Commonwealth treasury funds is the most significant factor weighing against Eleventh Amendment immunity. See Bolden, 953 F.2d at 819; Bass v. Consolidated Rail Corp., 1994 U.S. Dist. LEXIS 739, at *4, No. 93-875, 1994 WL 25380, at *2 (E.D. Pa. Jan. 31, 1994).
B. PRPA's Status Under State Law
Second, we examine PRPA's status under state law, i.e., whether PRPA is separately incorporated, whether it can sue and be sued in its own right and whether it is immune from state taxation. See Fitchik, 873 F.2d at 659. PRPA does have to power to sue and be sued and is defined as an "independent agency" under state law. PRPA's status is similar to that of SEPTA. Compare Bolden, 953 F.2d 807 at 820, with Pa. Stat. Ann. tit. 55, §§ 697.4-.6, .18 (listing powers and privileges of SEPTA and PRPA, respectively). In Bolden this combination of factors weighed slightly in favor of granting Eleventh Amendment protection.
C. PRPA's Autonomy from the Commonwealth
Finally, we analyze whether PRPA is governed by its own Board of Directors, what powers that Board has, who appoints its members and whether it is independent of supervision and control by the Commonwealth. See Fitchik, 873 F.2d at 663. "PRPA has somewhat less autonomy than SEPTA because PRPA board members are all appointed by elected Commonwealth officials, and serve at the pleasure of the authority that appointed them." Bass, 1994 WL 25380, at *2; see Pa. Stat. Ann. tit. 55, § 697.5. This factor weighs slightly in favor of Eleventh Amendment Immunity.
Step one of the balancing weighs heavily against Eleventh Amendment immunity; steps two and three weigh slightly in favor of Eleventh Ammendment Immunity. Because the "most important question" is whether the Commonwealth treasury would be affected by a judgment, and it would not, PRPA is not entitled to Eleventh Amendment immunity and is a "person" under § 1983. See Christie, 54 F.3d at 1144. The court agrees with the well-reasoned analysis in Bass, 1994 WL 25380.
III. Predatory Acts Relied Upon by Plaintiffs
Plaintiffs have produced evidence of seven predatory acts taken by one or more of the defendants to establish "injuries" redressable under § 1983.
A. PRPA's Decision Not to Join the Application for Environmental Permit to Develop Publicker
Plaintiffs allege PRPA arbitrarily refused to join its application for an environmental permit to allow development of the Publicker site. Publicker was and is owned-by Crestmont Partnership and its affiliate, Delaware Avenue Enterprises ("DAE"). (B. Gelman Dep. at 63). None of the three plaintiffs has an ownership interest in Publicker, although PRPA was obligated under the Amended Packer Lease to "support" permit applications for Publicker submitted on behalf of Holt Cargo.
In February, 1994, DAE personnel approached PRPA to request it to become a co-applicant on a permit application submitted for DAE's planned development of the Additional Parcels and Publicker. (Defs.' Appendix at 333). The permit would allow DAE to fill in the waterfront area from the north side of Packer to the north side of Pier 96 South and create a 2,400 foot berth area extending into the Delaware River under the Walt Whitman Bridge. (Permit Application, Defs.' Appendix at 303). The application stated that the purpose was to create a "multi-purpose" marine terminal.
DAE officials submitted the application before receiving a response from PRPA. In March, 1994, the Pennsylvania Department of Environmental Resources ("DER") and the United States Army Corps of Engineers ("USACE") informed DAE of deficiencies in the application. (DER letter, Defs.' Appendix at 335; USACE letter, Defs.' Appendix at 337).
On April 8, 1994, PRPA's Board adopted a resolution that the PRPA would co-apply for the permits as long as the application was "for the sole purpose of enhancing freight and cargo-related uses in a port industrial setting." (PRPA Resolution, Defs.' Appendix at 338). DER again notified DAE on July 7, 1994 that there were deficiencies in its application.
In early July, 1994, Holt, Sr., publicly stated his plans for the Publicker site. (T. Foley Dep. at 185, 193-94). Newspaper articles quoted Holt, Sr., stating he intended to build a hotel on the Publicker property. (Defs.' Appendix at 348). Some articles included an artist's sketch of the proposed hotel. (Defs.' Appendix at 345-49). The Philadelphia Inquirer reported Holt, Sr., said he was considering river boat gambling at the Publicker site in the future, but not at that time. (Defs.' Appendix at 345). A proposal for a hotel or gambling facility was inconsistent with PRPA's resolution limiting its support to industrial port development. Holt, Sr.'s, announced plans also conflicted with a PRPA resolution, enacted March 11, 1994, opposing river boat gambling in any port facility owned or controlled by PRPA. (PRPA Resolution, Defs.' Appendix at 371). On the advice of counsel, PRPA declined to co-apply with DAE for the environmental permits.
By letter dated August 3, 1994, McDermott (PRPA's executive director) informed Holt, Sr., of PRPA's reasons for declining to co-apply for the environmental permits. Under the terms of the Amended Packer Lease, PRPA was required to support the permit applications, not co-apply, for permits. (Amended Packer Lease at §§ 24.2(c), 26). Under Pennsylvania environmental regulations, DAE only needed PRPA's support; it was not necessary for the owner, PRPA, to be a co-applicant for DAE's permit application to be granted. PRPA did not want to be held jointly liable for maintenance of the reconstructed Publicker site, as it might have been as a joint applicant. (Defs.' Appendix at 352). McDermott offered PRPA's support for DAE's application if they could resolve certain outstanding issues.
DAE applied for the permit for Publicker alone. Between November, 1994 and April, 1995, DAE submitted three revised applications deemed deficient by DER. In September and October, 1997, DAE submitted another permit application; this proposal contemplated extending the bulkhead into the Delaware River in a different direction and filling in an increased portion of the river.
Aside from DAE's permit problems, all development at Publicker was halted because Publicker was declared a Superfund site until December 10, 1997. (Defs.' Appendix at 367). Even if permits had been granted when DAE first applied, no development would have been possible until the site's Superfund status was resolved.
B. PRPA's Interference with Holt Cargo's and Astro's Rights Regarding Pier 96 South
The plaintiffs have stipulated to dismissal of all claims for breach of the Amended Packer Lease, see June 18, 1996 Order, because those claims have been submitted to the FMC.
The Amended Packer Lease provided that Holt Cargo's rights to the Additional Parcels, including Pier 96 South, were subordinated to the rights of the then-tenants:
HOLT acknowledges that PRPA has advised HOLT that the Additional Parcels are subject to the leases and other agreements set forth on Exhibit K, copies of which have been provided to HOLT.... HOLT shall not attempt to exercise any rights of landlord under any of such agreements [and] shall conduct all of its operations on the Additional Parcels in conformity with and so as not to violate any of the provisions of any of such agreements or the rights of any tenants or licensees thereunder, and that HOLT shall indemnify, defend and hold PRPA harmless from and against any and ...