Morton v. NATIONAL DAIRY PRODUCTS CORPORATION, 17489.

• Decision Date: 09 July 1969
• Docket Number: No. 17489.,17489.
• Citation: 414 F.2d 403
• Parties: Eleanor G. MORTON, Robert L. Gwinn, Elizabeth B. Gwinn, David M. Gwinn, John C. Gwinn, Richard H. Gwinn and E. Clyde Heath, Guardian for Nancy V. Gwinn and Martha E. Gwinn, minors, Partners trading as Pennbrook Milk Company, Appellants, v. NATIONAL DAIRY PRODUCTS CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

414 F.2d 403 (1969)

Eleanor G. MORTON, Robert L. Gwinn, Elizabeth B. Gwinn, David M. Gwinn, John C. Gwinn, Richard H. Gwinn and E. Clyde Heath, Guardian for Nancy V. Gwinn and Martha E. Gwinn, minors, Partners trading as Pennbrook Milk Company, Appellants, v. NATIONAL DAIRY PRODUCTS CORPORATION.

No. 17489.

United States Court of Appeals Third Circuit.

Argued March 6, 1969.

Decided July 9, 1969.

Rehearing Denied August 8, 1969.

William S. Rawls, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa. (C. Oliver Burt, III, Philadelphia, Pa., on the brief), for appellants.

William H. Lowery, Dechert, Price & Rhoads, Philadelphia, Pa. (Owen B. Rhoads, George Reath, Jr., Philadelphia, Pa., on the brief), for appellee.

Before KALODNER, FREEDMAN and SEITZ, Circuit Judges.

OPINION OF THE COURT

KALODNER, Circuit Judge:

This appeal is from the judgment of the District Court in favor of the National Dairy Products Corporation ("Sealtest") in the action brought by the plaintiffs trading as Pennbrook Milk Company ("Pennbrook") alleging violation of § 2 of the Clayton Act as amended by § 2(a) of the Robinson-Patman Act, c. 592, 49 Stat. 1526, 15 U.S.C.A. § 13 (a).¹

The critical issues presented are whether fact-findings made by the District Court, to which trial was had, are "clearly erroneous" and whether the District Court erred in construing applicable legal standards under the antitrust laws.

Plaintiffs' Complaint, in broad outline, alleges that Pennbrook and Sealtest are competitively engaged in selling milk to retail food stores and supermarkets in the Greater Philadelphia, Pennsylvania area; Penn Fruit Company, which operates a chain of supermarkets in the area, is the principal customer of both Pennbrook and Sealtest; Sealtest engaged in price discrimination by making sales of milk to Penn Fruit at its New Jersey and Delaware facilities at prices lower than those charged by Sealtest to its other customers in the Philadelphia area for the purpose of eliminating Pennbrook as a competitor.

The critical testimony adduced at the 15-day trial may be summarized as follows:

Pennbrook is a family-owned milk processing and sales concern with a single plant in Philadelphia. The defendant is a major national dairy corporation and it owns and operates the division of Sealtest Foods which conducts a milk processing and sales business in southeastern Pennsylvania, southern New Jersey and Delaware, with plants and facilities at each location. At the time relevant here, Penn Fruit Company operated forty-five stores and supermarkets in Pennsylvania. Prior to November, 1961, Pennbrook supplied all of the milk purchased by eighteen of the Penn Fruit stores and Sealtest supplied the remaining twenty-seven stores; Penn Fruit was at this time the largest customer of both Pennbrook and Sealtest in the Philadelphia area. The Pennsylvania Milk Control Commission ("PMCC") at all times relevant here, inter alia, fixed minimum prices at which Pennbrook and Sealtest and other dairies could sell milk to retail outlets in Pennsylvania. The New Jersey Office of Milk Industry ("OMI") regulated milk prices in New Jersey; Delaware had no milk control law.

Prior to August, 1961, all Sealtest sales to Penn Fruit stores in Pennsylvania were made by delivery in Sealtest trucks from Sealtest plants located in Pennsylvania. These sales were subject to the PMCC price minimum (at that time) of twenty-three to twenty-five cents per quart. On August 15, 1961, pursuant to an agreement executed in April of 1961, Sealtest began to make these sales at its Camden, New Jersey plant, "Platform Delivery", with Penn Fruit taking delivery of the milk in Penn Fruit's own trucks and handling its shipment from Camden to the individual Penn Fruit stores in Pennsylvania. Under this new system, Penn Fruit personnel also took over the performance of certain "in-store services", such as filling of refrigerator cases, rotation of inventory, etc., which had previously been performed by Sealtest drivers. The "Platform Delivery" sales were made by Sealtest to Penn Fruit at a net price of eighteen cents per quart, a price allowed by OMI for sales to "distributors."²

During the period from October, 1963, to August, 1966, Sealtest made the bulk of its platform sales to Penn Fruit at its storage facilities in Claymont, Delaware, with the milk apparently being hauled there by Sealtest from its Camden plant. This method of operation was necessitated by a New Jersey Supreme Court decision³ holding that wholesale customers such as Sealtest were not entitled to distributor prices in New Jersey. In 1966 OMI granted Penn Fruit a milk dealer's license and the locus of delivery shifted back to Camden under a new lease-of-facilities arrangement.

Since Pennbrook had no facilities outside of Pennsylvania, it could not pursue the procedure employed by Sealtest for avoiding the PMCC minimum-price regulations. Consequently, on November 28, 1961, Penn Fruit began purchasing from Sealtest, by "Platform Delivery-Camden", the milk needed for the eighteen stores previously served by Pennbrook. By October of 1962, Penn Fruit had ceased all purchases from Pennbrook, except for certain purchases of "extra-rich" milk.

Pennbrook's sales fell off significantly as a result; this is the injury which Pennbrook claims as an "injury to competition" in violation of the Robinson-Patman Act.

Sealtest's answer to that claim is three-fold: (1) the lower "platform" prices charged to Penn Fruit were "cost justified"; (2) they were established "in good faith to meet an equally low price of a competitor" (Pennbrook); and (3) "price differences mandated by different state regulations do not violate the Robinson-Patman Act."

The District Court, in its Opinion,⁴ found that Pennbrook had made out a "prima facie case" but that Sealtest had "successfully" demonstrated the "adequate defense" of "cost justification",⁵ and further concluded that "The prices charged by Sealtest and paid by Penn Fruit were established in good faith to meet competition within the scope of the Robinson-Patman Act, including the lower price of Pennbrook."⁶

On the score of "cost justification" the District Court made this fact-finding:

"Sealtest\'s prices to Penn Fruit were cost justified, and made only due allowance for differences in the cost of manufacture,

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