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Brandywine Village Associates v. Carlino East Brandywine, L.P.

United States District Court, E.D. Pennsylvania

March 26, 2018

BRANDYWINE VILLAGE ASSOCIATES, Plaintiff,
v.
CARLINO EAST BRANDYWINE, L.P., et al., Defendants.

          MEMORANDUM

          SCHMEHL, J.

         The Sherman Act prohibits direct or indirect interference of competition thereby promoting competition as the most efficient regulator of economic activity. Any suppression of competition negatively impacts the price of goods and services, thereby directly affecting consumers. One such way suppression of competition can affect the public is through eminent domain or condemnation of land. Eminent domain allows the government or its agent to expropriate private property for public use, with payment of compensation.

         At issue in this case is East Brandywine Township's taking of certain property from Brandywine Village Associates to create a competing shopping center and supermarket in their township. However, this Court need not determine whether a lawful taking occurred; this Court must determine whether a municipality has the authority to act in a way that produces anticompetitive restraints as a result of a taking. There are two issues this Court must address with regards to East Brandywine Township's motion to dismiss: 1) whether a municipality is subject to Section 1 of the Sherman Act when its conduct results in anticompetitive restraints performed as an act of government or state policy; and 2) whether common law unfair competition applies to non-competitors.

         This opinion addresses the motion to dismiss on behalf of one Defendant, East Brandywine Township. For the reasons that follow, the motion will be granted.

         I. FACTS

         Plaintiff Brandywine Village Associates (“BVA”) is a Pennsylvania partnership that owns Brandywine Village Shopping Center. Brandywine Shopping Center is a retail shopping center located at 1239 Horseshoe Pike in East Brandywine Township. One of the named Defendants and focus of this Opinion, East Brandywine Township (the “Township”), has its municipal building at 1214 Horseshoe Pike in East Brandywine Township.

         Brandywine Village Shopping Center was built in 1995 and was by all accounts a “successful retail center with a thriving supermarket anchor tenant.” At the moment, however, the shopping center is without a supermarket (anchor tenant), affecting the local township which lacks a conveniently located supermarket. Prior to the shopping center losing its supermarket anchor tenant, the shopping center enjoyed stable occupancy from its other tenants. However, with the supermarket's departure and inability to sign a new anchor tenant, the once stable center is now struggling to retain its tenants.

         Since 2008, Defendant Carlino has attempted to develop a shopping center, the East Brandywine Center - in close proximity to Brandywine Village Shopping Center - and sign Giant Food Stores supermarket as its anchor tenant. In 2011, Carlino and its representatives met frequently with Brandywine Township to discuss the development plan and intent to lease its anchor tenant space to Giant supermarket.

         On October 3, 2014, the Township passed a resolution of condemnation of Brandywine Village's easements. On November 14, 2014, the Township filed a declaration of taking against Brandywine Village in the Chester County Court of Common Pleas. After numerous challenges to Carlino's development plans and subsequent appeals by BVA concerning purported “non-waivable zoning defects, ” the Township conditionally approved Carlino's development plans in 2016.

         On January 6, 2017, following another appeal by BVA, Judge Nagle of the Chester County Court of Common Pleas issued an Order denying BVA's appeal of the conditional approval of Carlino's development plan. In the Order, Judge Nagle states, “Pursuant to the MOU's terms, the Township has condemned certain easements located on Carlino's property that now benefit Brandywine's adjacent property, which will allow location of the Connector Road within those easement areas. We observe that the Township has not condemned the underlying fee within which the easements exist. Carlino has agreed to construct the road on its property to specifications consistent with its dedication to the Township as and for a public road.” (ECF Doc. No. 79-2, at 9.)

         On September 30, 2016, BVA filed this action against multiple defendants alleging violation of Section 1 of The Sherman Act, unfair competition, abuse of legal process, specific performance, and breach of contract. On May 9, 2017, this Court granted BVA leave to amend the complaint adding Defendant Giant Food Stores, LLC as a named Defendant. (Docket No. 104.) On May 23, 2017, Defendant East Brandywine Township moved to dismiss the amended complaint. (Docket No. 111.) Presently before this Court is the Township's motion to dismiss the complaint against BVA for failing to state a claim.

         II. STANDARD OF REVIEW

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the plausibility standard when the facts alleged “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the plausibility standard is not “akin to a ‘probability requirement, '” there nevertheless must be more than a “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557).

         The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion: (1) “it must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;'” (2) “it should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth;'” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 ...


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