679 F.2d 805 (10th Cir. 1982), 80-2083, Pueblo Aircraft Service, Inc. v. City of Pueblo, Colo.

Docket Nº:80-2083.
Citation:679 F.2d 805
Party Name:PUEBLO AIRCRAFT SERVICE, INC., a Colorado corporation, Plaintiff-Appellant, v. The CITY OF PUEBLO, COLORADO, a Municipal corporation, Thomas Lopez, Individually and as Director of Aviation for the City of Pueblo, Pan-Ark Aviation, Inc., a Colorado corporation, and George Rabatin, Jr., Defendants-Appellees.
Case Date:April 13, 1982
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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679 F.2d 805 (10th Cir. 1982)

PUEBLO AIRCRAFT SERVICE, INC., a Colorado corporation,



The CITY OF PUEBLO, COLORADO, a Municipal corporation,

Thomas Lopez, Individually and as Director of Aviation for

the City of Pueblo, Pan-Ark Aviation, Inc., a Colorado

corporation, and George Rabatin, Jr., Defendants-Appellees.

No. 80-2083.

United States Court of Appeals, Tenth Circuit

April 13, 1982

Alan L. Sulzenfuss, Salida, Colo. (Maurice R. Franks, Pueblo, Colo., with him on brief), for plaintiff-appellant.

Thomas E. Jagger, Pueblo, Colo. (Joseph A. Vento of Kettelkamp, Vento & Brown, Pueblo, Colo., with him on briefs), for defendants-appellees.

Before SETH, Chief Judge, and BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

This is an action involving alleged federal antitrust act violations brought by plaintiff-appellant, Pueblo Aircraft Services, Inc. (Pueblo Aircraft) under 15 U.S.C.A. §§ 1 1 and 14 2 against the City of Pueblo,

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Colorado (City), Thomas Lopez, City's Director of Aviation, Pan-Ark Aviation, Inc. and George Rabatin, Jr., arising from City's operation of a municipal airport.

The district court, 498 F.Supp. 1205, granted the defendants-appellees' motion for summary judgment, finding/concluding that City is immune from the federal antitrust laws and further that no genuine claim is stated against the other defendants-appellees. The trial court pertinently observed after finding/concluding that City is immune from federal antitrust laws, that if this conclusion is correct, no further consideration of the summary judgment motions is necessary "(s)ince all antitrust claims of the plaintiff against all the remaining defendants are based on alleged violations by the City of the Federal antitrust laws ..." (R., Vol. I, p. 182). Thus, the district court dismissed the suit with prejudice as to all defendants on the ground that no claim had been stated upon which relief can be granted. The court granted summary judgment based upon extensive pleadings, voluminous depositions, documents, affidavits filed in support of and in opposition to the motions, briefs of the respective parties, and an open court hearing.

We approach this review aware that summary procedure should be used sparingly in antitrust litigation, Poller v. Columbia Broadcasting, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), and that summary judgment should issue only where there is no genuine issue of material fact. Harman v. Diversified Medical Investments Corporation, 488 F.2d 111 (10th Cir. 1973), cert. denied, 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1979). Factual inferences tending to show triable issues of material fact should be viewed in the light most favorable to the existence of such issues in assessing a motion for summary judgment. Harsha v. U.S. 590 F.2d 884 (10th Cir. 1979).


The facts stated most favorably to Pueblo Aircraft are as follows. In 1948 City acquired from the federal government by deed a tract of land which had been used as a military airfield during World War II, granted for the specific purpose of establishing a municipal airport. At the time of acquisition, there were certain facilities available to City on the premises for airport operations including hangars and a storage facility to store aviation fuel. Since prior to 1970, City granted leases to three "fixed base operators" who operated businesses upon specific portions of the airport lands so leased and performed specific services which were monitored by City, including refueling of aircraft, sale of new and used aircraft, repair and maintenance of aircraft, sale of aircraft parts and supplies, rental and charter of aircraft, conduct of a flying school, operation of food vending machines, storage of aircraft, and the manufacture of aircraft parts and components. The lease agreements with each of the "fixed base operators" 3 required them to purchase all aviation fuel from City for resale. 4 The

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three fixed base operators were defendants Pan-Ark, Flower Aviation and the plaintiff-appellant, Pueblo Aircraft.

In 1970, Willard J. Teel and Betty I. Teel acquired all of the stock of Pueblo Aircraft and thereafter actively managed a fixed base operation under the lease granted by City, which expired on March 31, 1977, but was extended to June 31, 1977.

Several months prior to the expiration of Pueblo Aircraft's lease, City determined to require public bidding for the lease, upon its termination, of the premises and improvements leased to Pueblo Aircraft. The only bidders were Pueblo Aircraft and Pan-Ark. Pan-Ark was declared the successful bidder and City authorized a lease of the premises formerly occupied by Pueblo Aircraft to Pan-Ark commencing July 1, 1977.

At all times since the acquisition of the airport, City has been a "home rule" city, chartered pursuant to Art. XX, Section 6 of the Colorado Constitution which permits City to exercise "the full right of self-government in both local and municipal matters" and provides that the charter or ordinances enacted by City pursuant to such authority shall supersede the statutes of Colorado in exercising self-government.

City, at all times following acquisition of the airport, assumed control and responsibility for providing and maintaining the storage facility, monitoring the quality of fuel, providing fire protection and assuring the supply of aviation fuel to serve the needs of the fixed base operators and other aircraft using the airport who were not supplied by the fixed base operators. All leases entered into between City and the fixed base operators required the operators-lessees to purchase all aviation gasoline or propellants dispensed by them from City. The storage facility was on the premises when the property was acquired by the City. It was an underground fuel storage facility located away from the buildings and...

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