565 F.2d 264 (3rd Cir. 1977), 77-1287, J. P. Mascaro & Sons, Inc. v. William J. O'Hara, Inc.

Docket Nº:77-1287.
Citation:565 F.2d 264
Party Name:J. P. MASCARO & SONS, INC., Appellant, v. WILLIAM J. O'HARA, INC., O'Hara Sanitation Co., Inc., Globe Disposal Co., Inc., Sam's Keystone Sanitation Co., Inc., O'Neill and Sons, Inc., Pottstown Disposal Service, Inc., Santangelo Hauling Inc., The Refuse Disposal Association of Pennsylvania, Southeastern Chapter, Inc., Moyer's Landfill, Inc., Theodor
Case Date:November 09, 1977
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 264

565 F.2d 264 (3rd Cir. 1977)

J. P. MASCARO & SONS, INC., Appellant,

v.

WILLIAM J. O'HARA, INC., O'Hara Sanitation Co., Inc., Globe

Disposal Co., Inc., Sam's Keystone Sanitation Co., Inc.,

O'Neill and Sons, Inc., Pottstown Disposal Service, Inc.,

Santangelo Hauling Inc., The Refuse Disposal Association of

Pennsylvania, Southeastern Chapter, Inc., Moyer's Landfill,

Inc., Theodore S. A. Rubino and Samuel A. Rubino, doing

business as Knickerbocker Sanitary Landfill, Roy Quinn,

doing business as Roy Sanitation Company, William J. O'Hara,

Earl Kelly, Jr., Howard F. Moyer, Jr., Paul Lanigan, Sam

Monastero, Jr., Thomas D. O'Neill, Sr., Lesley Rinehart,

Helen Santangelo and Gerald Thorpe, Appellees.

No. 77-1287.

United States Court of Appeals, Third Circuit

November 9, 1977

Argued Sept. 6, 1977.

Harold E. Kohn, Stuart H. Savett, Donald L. Weinberg, Kohn, Savett, Marion & Graf, P. C., Philadelphia, Pa., for appellant.

Ralph W. Brenner, Carol A. Mager, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellees Lesley Rinehart, Jr. and Pottstown Disposal Service, Inc.

James R. Caiola, Norristown, Pa., for appellees Santangelo Hauling, Inc. and Helen Santangelo.

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Joseph W. Lonergan, Michael D. Marino, Norristown, Pa., for appellees Sam's Keystone Sanitation Co., Inc., and Sam Monastero, Jr.

Steven L. Friedman, Edward F. Mannino, Dilworth, Paxson, Kalish & Levy, Philadelphia, Pa., for appellees William J. O'Hara, Inc., O'Hara Sanitation Co., Inc., Globe Disposal Co., Inc., William J. O'Hara, Earl Kelly, Jr., Theodore S. A. Rubino and Samuel A. Rubino d/b/a Knickerbocker Sanitary Landfill, and The Refuse Disposal Association of Pennsylvania, Southeastern Chapter, Inc.

Arthur L. Jenkins, Jr., William J. Cattie, III, Smith, Aker, Grossman, Hollinger & Jenkins, Norristown, Pa., for appellees O'Neill and Sons, Inc., Moyer's Landfill, Inc., Roy Quinn d/b/a Roy Sanitation Company, Paul Lanigan, Thomas D. O'Neill, Sr., and Gerald Thorpe.

Before SEITZ, Chief Judge and GIBBONS and WEIS, Circuit Judges.

OPINION

WEIS, Circuit Judge.

The parties to this Sherman Act case are in the extremely important but unglamorous enterprise of refuse collection. While the local nature of the venture is apparent, the interstate ramifications of the business are such that the plaintiff's arguments for federal court jurisdiction cannot be dismissed as rubbish. The effect on interstate commerce as alleged was substantial enough that the district court erred in refusing jurisdiction. Accordingly, we vacate its entry of summary judgment in favor of the defendants.

Plaintiff J. P. Mascaro & Sons, Inc., a refuse hauler, alleges that the defendant haulers, landfill operators, and trade association have conspired to fix prices and allocate territories so as to drive it out of business. The complaint charges violations of Sherman Act §§ 1 and 2 and asks for injunctive relief as well as treble damages. After the parties had conducted discovery, the district court granted summary judgment for the defendants on the ground that their business was a purely local operation, not in interstate commerce, nor substantially affecting interstate commerce.

Mascaro and the defendants' enterprises cover Bucks, Delaware, Montgomery and Chester Counties in suburban Philadelphia. The parties service a large number of customers, the defendant haulers collectively accounting for 16,416, including commercial and industrial establishments of all kinds, as well as private households. One of the defendant landfill operators services a federal military installation. All but one of the defendants' customers and all of the plaintiff's are located in Pennsylvania. Defendant O'Hara serves one customer in New Jersey, using a truck permanently stationed there to haul refuse to a landfill also in that state. The truck is brought to Pennsylvania two or three times a month for maintenance work but does not haul rubbish on those trips.

The haulers dump the refuse at a landfill location and pay the operator for the privilege. The amounts paid for transportation to the site and for landfill use are significant costs which affect the prices charged customers. In order to keep expenses low, haulers prefer to utilize landfills as close to the customers as is feasible.

The complaint alleges that the defendants conspired to allocate customers, fix and maintain prices, engage in predatory practices, including a foreclosure of plaintiff from the use of certain landfills, and otherwise "(to) impede, obstruct, threaten, intimidate, harass, and take action against plaintiff and certain operators in order to exclude plaintiff from the refuse removal business." As a result of these activities, the plaintiff contends that it has incurred greater expenses in conducting its business, and that competition has been reduced.

The defendants assert their businesses and Mascaro's are purely intrastate and there is no basis for jurisdiction under the Sherman Act. 1 The district court observed

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