Opposition — Miller & Son Paving, Inc. v. Wrightstown Township Civic Ass'n

it Supreme Court, U. & ,

FILED

26 1979

IN THE | MU "

Supreme Court of the United rates |

October Term, 1978.

No. 78-1925.

MILLER & SON PAVING, INC.,

« Petitioner,

WRIGHTSTOWN TOWNSHIP CIVIC ASSOCIATION, GEORGE

DONAT, MARGARET PERRY, FRANK VIRNELSON, and

HARRISON E. DOW, ALDANLEE SPELL, and N. KLINE

FISHER, Individually and as Supervisors of Wrightstown

Township, Bucks County, Pennsylvania, and WRIGHTSTOWN

TOWNSHIP,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit.

BRIEF IN OPPOSITION BY RESPONDENTS

WRIGHTSTOWN TOWNSHIP, HARRISON E. DOW,

ALDENLEE SPELL AND N. KLINE FISHER,

INDIVIDUALLY AND AS SUPERVISORS OF

WRIGHTSTOWN TOWNSHIP, BUCKS COUNTY,

PENNSYLVANIA.

LEONARD BARRACK,

GERALD P. Ropos,

Pau. J. McManon,

Barrack, Ropos & MCcMaAnon,

2000 Market Street,

Philadelphia, Pa. 19103

(215) 963-0600

Attorneys for Respondents,

Wrightstown Township,

Of Counsel: Harrison E. Dow, Aldenlee

RONALD H. SHErR, Spell and N. Kline Fisher.

SPENCER, SHERR & MOSEs,

P.C.,,

107 EE. Main Street,

Norristown, Pa. 19401

(215) 279-5300

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

INDEX.

Page

Ce TE a eS Ue ceahs ces ae Raed eaee cakeos 2

PORE 6 Eso cod eee ad nce eis eh ceeweendaeinna 2

INE NE ea ok ask gnats bweeteesa tears ws 2

ERTS TN ic cc idole s cndhtakenosasonubiwkeas 3

CouNTER STATEMENT OF THE CASE ............0.000e0uee: 8

Reasons Wuy THE Writ SHouLp Be DENIED ............... 13

I. A Complaint Which Alleges Nothing More Than a

Local Zoning Dispute Does Not State a Cause of

Action Under the Sherman Act .................. 13

A. No Commercial Relationship Exists Between the

Parties and the Plaintiff Has Not Pleaded That

Any Alleged Acts of the Defendants Have Put

It at a Competitive Disadvantage ............ 13

B. The Complaint Alleges Only That the Govern-

mental Defendants Acted Entirely Within Their

Legal Authority in Enforcing Zoning Ordinances

and in Deciding Miller's Request for Change of

Zoning; Their Actions Are Thus Beyond the

Scope of the Antitrust Laws ................. 15

1. The Noerr-Pennington Doctrine ........... 15

2. The Doctrine of Parker v. Brown .......... 16

II. The Complaint Clearly Does Not State a Cause of

Action Under the Civil Rights Act or the Constitu-

Chen cE Cah Tie BO inn ss is add evaWaencas 19

A. Plaintiffs Claims Relating to Zoning Do Not Pre-

sent a Substantial Federal Question and Cannot

Be Heard in Federal Court .................. 19

B. The Allegations of Civil Rights Act Violations

Were Properly Dismissed ..................- 20

C. No Conceivable Fourteenth Amendment Claim

Sie ON I a 6 ask oe Fab 0 00a does aes 22

SE Ns os tat ch ecn hd wade bhai aaeé bes de neathals 24

TABLE OF AUTHORITIES.

Cases: Page

Anderson v. Martin, 375 U. S. 399 (1964) ................ 22

Apex Hosiery Co. v. Leader, 310 U. S. 469 (1940) ......... 13

Arlington Heights v. Metropolitan Housing Corporation, 429

U. S. 252 (1977) ...... (aivinuce eee cabeeeankasnamen 24

Bauers v. Heisel, 361 F. 2d 581 (3rd Cir. 1966) ........... 21

Blackman v. City of Big Sandy, Texas, 507 F. 2d 935 (5th

OMe, BRUD sdgcdecscdscupchapdsvsbenenhendcieleaee 19

City of Lafayette, La. v. La. Power and Light Company, 435

a. Se, Se CPOE a0 cnn chauscdvieduetnahuncae en 17, 18

County Board of Arlington County, Virginia v. Richards, 434

Sis SD GUNNS Bi cikx ga scleawakes samme kenkauneeene 23

Dombrowski v. Eastland, 387 U. S. 82 (1967) ............. 21

Donnelly v. Boston College, 558 F. 2d 634 (Ist Cir. 1977) .. 14

DuBree v. Commonwealth of Pennsylvania, 393 A. 2d 293

RUNES dds geal ccues i baxmetekeaene seamneeeeneenas 21

Eastern Railroad President's Conference v. Noerr Motor

Penteme, SHG U.S. BAT CORED ovis isc dsteackaweb Res 16

Germann v. Kipp, 429 F. Supp. 1323 (W. D. Mo. 1977) ..... 22

Jonnet v. Bodick, 431 Pa. 59 (1968) ................0008. 18, 21

Marjorie Webster Junior College v. Middle Atlantic States

Association of Colleges and Secondary Schools, 432 F. 2d

ae CAR Se SOR TOP wi cccccgaviaak'achuuksh ubesaeceu 14

Miller & Son Paving, Inc. v. Wrightstown Township Civic

Association, 443 F, Supp. 1268 (E. D. Pa. 1978) ........ 12

Negrich v. Hohn, 379 F. 2d 213 (3d Cir. 1967) ............ 21

Parker v. Brown, 317 U. S. 341 (1942) ............. 16, 17, 18, 19

Rotolo v. Borough of Charleroi, 532 F. 2d 920 (3d Cir. 1976) 21

South Gwinett Ventures v. Pruitt, 491 F. 2d 5 (5th Cir. 1974) 19

Standard Oil Co. v. United States, 221 U.S. 1 (1911) ...... 14

Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.

OS Se Ce Cs Sd ise dics anencvetci\ nauseous 19

Stone v. City of Maitland, 446 F. 2d 83 (Sth Cir. 1971) .... 19

Tenney v. Brandhove, 341 U. S. 367 (1951) ............... 21

TABLE OF AUTHORITIES (Continued).

Cases (Continued): Page

United Mine Workers of America v. Pennington, 381 U. S. 657

6 CES ETE 2 i eg 15

Village of Belle Terre v. Boraas, 416 U. S. 1 (1974) ........20, 23

Washington v. Davis, 426 U. S. 229 (1976) ............... 22,24

Statutes:

United States:

Fourteenth Amendment, United States Constitution .... 2,8

Civil Rights Act of 1871, § 1, 42 U.S. C. § 1983 ........ 2,8

Civil Rights Act of 1871, § 2, 42 U.S. C. § 1985(3) ..... 8

Civil Rights Act of 1871, § 6, 42 U. S.C. § 1986 ........ 8

ee ee ES, A BR gs pe wv scebavacaceses 8

Pennsylvania:

nro re ee ee 17, 18

EES gid cous can seU dese rssresesys 3, 18

Ne ae yin sp Aa. ea n'sewin'sd aWelesoesuie 3,7

eae ay cde t) ciseasesa rans sacveves 4,18

I rc ahs kd cin sob oles access veep e's 4,18

ae eau cs Sid ee bw bc egebonpabwa tne 5

a cee kaas ss aaes ohisbepneee eos 5, 18

EC er. kip acvghedvendndcwensenses 7

TAs cilvpwckoddeshaaadcvewensscuxe 7,18

OR ES PO PCS eee eee 7

Pe candace kh ehers asses sdsicees ce 8

en eee ee 8

IN THE

Supreme Court of the United States

October Term, 1978

No. 78-1925.

MILLER & SON PAVING, INC.,

Petitioner,

v.

WRIGHTSTOWN TOWNSHIP CIVIC ASSOCIATION,

GEORGE DONAT, MARGARET PERRY, FRANK

VIRNELSON, and HARRISON E. DOW, ALDAN-

LEE SPELL, and N. KLINE FISHER, Individually

and as Supervisors of Wrightstown Township,

Bucks County, Pennsylvania, and WRIGHTSTOWN

TOWNSHIP

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit.

BRIEF IN OPPOSITION BY RESPONDENTS

WRIGHTSTOWN TOWNSHIP, HARRISON E, DOW,

ALDENLEE SPELL AND N. KLINE FISHER,

INDIVIDUALLY AND AS SUPERVISORS OF

WRIGHTSTOWN TOWNSHIP, BUCKS COUNTY,

PENNSYLVANIA.

2 Brief in Opposition by Respondents

Respondents Wrightstown Township, Harrison E.

Dow, Aldenlee Spell and N. Kline Fisher, Individually and

as Supervisors of Wrightstown Township, Bucks County,

Pennsylvania, respectfully request that this Court deny a

writ of certiorari to review the per curiam judgment and

opinion of the United States Court of Appeals for the

Third Circuit entered on April 2, 1979 and set forth in full

in the Petition at Appendix B.

OPINIONS BELOW.

The opinions below are printed in Petitioner’s Ap-

pendices B and D.

: JURISDICTION.

The jurisdictional requirements are adequately set

forth in the Petition at page 2.

QUESTIONS PRESENTED FOR REVIEW.

I. Does a Complaint, which alleges a local zoning dis-

pute, state a federal antitrust cause of action where:

(a) no commercial relationship among any of

the parties or co-conspirators is alleged; and

(b) the governmental defendants are charged

solely with deciding a zoning matter entirely within

the authority granted to them under state law?

Il. Does a Complaint, which alleges a local zoning

dispute, state a federal cause of action against local gov-

ernmental officials acting pursuant to authority of state

law, under Section 1 of the Civil Rights Act of 1871 and

the Fourteenth Amendment to the Constitution where:

(a) no allegation of a deprivation of civil rights

and no arbitrary or capricious conduct by any de-

fendant is made; and

(b) no allegation of a discriminatory purpose or

effect is made?

Brief in Opposition by Respondents 3

STATUTES INVOLVED.

§ 601 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10601:

The governing body of each municipality, in accord-

ance with the conditions and procedures set forth in this

act, may enact, amend and repeal zoning ordinances to

implement comprehensive plans and to accomplish any of

the purposes of this act.

§ 603 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10603:

Zoning ordinances may permit, prohibit, regulate,

restrict and determine:

(1) Uses of land, watercourses and other bodies

of water;

(2) Size, height, bulk, location, erection, con-

struction, repair, maintenance, alteration, razing, re-

moval and use of structures;

(3) Areas and dimensions of land and bodies of

water to be occupied by uses and structures, as well

as areas, courts, yards and other open spaces and dis-

tances to be left unoccupied by uses and structures;

(4) Density of population and intensity of use.

In addition, zoning ordinances may contain:

(1) Provisions for special exceptions and vari-

ances administered by the zoning hearing board,

which provisions shall be in accordance with this act;

(2) Provisions for conditional uses to be allowed

or denied by the governing body after recommenda-

tions by the planning agency, pursuant to express

standards and criteria set forth in the ordinances;

4 Brief in Opposition by Respondents

(3) Provisions for the administration and en-

forcement of such ordinances; and

(4) Such other provisions as may be necessary

to implement the purposes of this act.

§ 604 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10604: ;

The provisions of zoning ordinances shall be designed:

(1) To promote, protect and facilitate one or

more of the following: the public health, safety,

morals, general welfare, coordinated and_ practical

community development, proper density of popula-

tion, civil defense, disaster evacuation, airports, and

national defense facilities, the provisions of adequate

light and air, police protection, vehicle parking and

loading space, transportation, water, sewerage,

schools, public grounds and other public require-

ments, as well as

(2) To prevent one or more of the following:

overcrowding of land, blight, danger and congestion

in travel and transportation, loss of health, life or

property from fire, flood, panic or other dangers.

Zoning ordinances shall be made in accordance with

an overall program, and with consideration for the

character of the municipality, its various parts and

the suitability of the various parts for particular uses

and structures.

§ 605 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10605:

In any municipality, other than a county, which en-

acts a zoning ordinance, no part of such municipality shall

be left unzoned. The provisions of all zoning ordinances

may be classified so that different provisions may be ap-

Brief in Opposition by Respondents 5

plied to different classes of situations, uses and structures

and to such various districts of the municipality as shall

be described by a map made part of the zoning ordinance.

Where zoning districts are created, all provisions shall be

uniform for each class of uses or structures, within each

district, except that additional classifications may be made

within any district:

(1) For the purpose of making transitional pro-

visions at and near the boundaries of districts, and

(2) For the regulation, restriction or prohibition

of uses and structures at or near (i) major thorough-

fares, their intersections and interchanges, and trans-

portation arteries, (ii) natural or artificial bodies of

water, (iii) places of relatively steep slope or grade,

(iv) public buildings and public grounds, (v) air-

craft, helicopter, rocket, and spacecraft facilities, (vi)

places having unique historical or patriotic interest or

value, (vii) flood plain areas and other places having

a special character or use affecting and affected by

their surroundings. As among several classes of zon-

ing districts, the provisions for permitted uses may be

mutually exclusive, in whole or in part.

§ 609 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10609:

For the preparation of amendments to zoning ordi-

nances, the procedure set forth in this article for the

preparation of a proposed zoning ordinance shall be per-

missive. Before voting on the enactment of an amend-

ment, the governing body shall hold a public hearing

thereon, pursuant to public notice. In the case of an

amendment other than that prepared by the planning

agency, the governing body shall submit each such amend-

ment to the planning agency at least thirty days prior to

6 Brief in Opposition by Respondents

the hearing on such proposed amendment to provide the

planning agency an opportunity to submit recommenda-

tions. If, after any public hearing held upon an amend-

ment, the proposed amendment is revised, or further re-

vised, to include land previously not affected by it, the

governing body shall hold another public hearing, pur-

suant to public notice, before proceeding to vote on the

amendment. If a county planning agency shall have been

created for the county in which the city, borough, incorpo-

rated town or township adopting the ordinance is located,

then at least thirty days prior to the hearing on the ordi-

nance by the local governing body, the city, borough, in

corporated town or township planning agency shall submit

the proposed ordinance to the county planning agency for

recommendations.

§ 609.1 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10609.1:

A landowner who desires to challenge on substantive

grounds the validity of an ordinance or map or any pro-

vision thereof, which prohibits or restricts the use or de-

velopment of land in which he has an interest may submit

a curative amendment to the governing body with a

written request that his challenge and proposed amend-

ment be heard and decided as provided in section 1004.

The governing body shall commence a hearing thereon

within sixty days of this request as provided in section

1004. The curative amendment shall be referred to the

planning agency or agencies as provided in section 609

and notice of the hearing hereon shall be given as provided

in section 610 and in section 1004. The hearing shall be

conducted in accordance with subsection (4) to (8) of

section 908 and all references therein to the zoning hearing

board shall, for purposes of this section be references to

the governing body.

Brief in Opposition by Respondents 7

§ 614 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10614:

For the administration of a zoning ordinance, a zon-

ing officer, who may not hold any elective office in the

municipality, shall be appointed. The zoning officer shall

administer the zoning ordinance with its literal terms, and

shall not haye the power to permit any construction or

any use or change of use which does not conform to the

zoning ordinance. |

§ 617 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10617:

In case any building, structure, or land is, or is pro-

posed to be, erected, constructed, reconstructed, altered,

converted, maintained or used in violation of any ordi-

nance enacted under this act or prior enabling laws, the

governing body or, with the approval of the governing

body, an officer of the municipality, in addition to other

remedies, may institute in the name of the municipality

any appropriate action or proceeding to prevent, restrain,

correct or abate such building, structure or land, or to pre-

vent, in or about such premises, any act, conduct, business

or use constituting a violation.

§ 903 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10903:

The membership of the board shall consist of three

residents of the municipality appointed by the governing

body, Their terms of office shall be three years and shall

be so fixed that the term of office of one member shall ex-

pire each year. The board shall promptly notify the gov-

erning body of any vacancies which occur. Appointments

to fill vacancies shall be only for the unexpired portion of

the term. Members of the board shall hold no other office

8 Brief in Opposition by Respondents

in the municipality, except that no more than one member

of the board may also be a member of the planning com-

mission.

§ 909 of the Pennsylvania Municipalities Planning Code,

53 P. S. § 10909:

The board shall hear and decide appeals where it is

alleged by the appellant that the zoning officer has failed

to follow prescribed procedures or has misinterpreted or

misapplied any provision of a valid ordinance or map or

any valid rule or regulation governing the action of the

zoning officer. Nothing contained herein shall be con-

strued to deny to the appellant the right to proceed directly

in court, where appropriate, pursuant to Pa. R. C. P., sec-

tion 1091 to 1098 relating to mandamus.

§ 510 of the Pennsylvania Second Class Township Code,

53 P. S. § 65510:

The general supervision of the affairs of the township

shall be in the hands of three registered electors of the

township, who shall be styled township supervisors.

COUNTER STATEMENT OF THE CASE.

The Complaint in this action alleged that defendants

violated Section 1 of the Sherman Act, Sections 1, 2 and 6

of the Civil Rights Act of 1871, and the Fourteenth Amend-

ment of the United States Constitution.. Named as de-

fendants in the Complaint are Wrightstown Township and

its three Supervisors, Harrison E. Dow, Aldenlee Spell and

N. Kline Fisher, (collectively referred to as the “Govern-

mental defendants”), who file this brief in opposition to

the petition for Writ of Certiorari to the United States

1. Plaintiff subsequently abandoned its claims under Sections

2 and 6 of the Civil Rights Act of 1871.

$

Brief in Opposition by Respondents 9

Court of Appeals for the Third Circuit filed by plaintiff

Miller & Son Paving, Inc. (hereinafter “Miller”). Also

named as defendants are Wrightstown Township Civic

Association, George Donat, the President of the Civic As-

sociation and two individuals who reside in Wrightstown

Township, Margaret Perry and Frank Virnelson,

The factual allegations of the Complaint state nothing

more than a routine zoning dispute which Miller has at-

tempted to make into a federal antitrust suit. Miller owns

two plots of land in Wrightstown Township—a 45 acre

plot and a 12 acre plot. Miller has owned and quarried

the 45 acre plot, which is zoned QA Quarry-Agriculture,

since 1959. (Complaint § 14, A-20). In about January,

1973, Miller purchased the 12 acre plot, which is zoned

R-2 Residential Agriculture and which abuts the 45 acre

plot. (Complaint § 15, A-20). Miller was aware that

quarrying was prohibited by Wrightstown Township’s zon-

ing ordinances at the time it purchased the 12 acre plot.

Miller's complaint is that it did not receive favorable

zoning rulings which would have permitted it to enlarge

its stone quarry into the 12 acre plot, and that that Town-

ship and its Supervisors, as the legislative arm of the Town-

ship, have attempted to stop it from violating the

Township's zoning ordinances.’ Plaintiff does not allege

that the governmental defendants conspired for personal

gain. Nor does plaintiff allege that the governmental de-

fendants conspired to favor a competitor of plaintiff. In

fact, none of defendants have any commercial relationship

to plaintiff. Plaintiff's complaint merely recites a history

2. It is important to note that Miller has been quarrying under

the protection of the laws of Wrightstown Township for many

years. A portion of the township has been zoned so to permit

several quarries, including Miller, to conduct their businesses.

There is no allegation that defendants have attempted to alter the

existing zoning ordinances which permit Miller to quarry in its 45

acre plot.

10 Brief in Opposition by Respondents

of zoning litigation which did not have the result plaintiff

desired.

Miller's complaint involves three incidents. First, it

is alleged that in September, 1974, the Supervisors, acting

in response to a citizen’s complaint, ordered plaintiff to

cease certain activities on its 45 acre plot, and that plaintiff

appealed from that order to the Zoning Hearing Board of

Wrightstown Township. (Complaint § 18, A21). After

several hearings, the Board found for Miller on two alleged

violations but found against Miller on other violations.

(Complaint § 19, A21), An appeal from that decision is

still pending in Pennsylvania courts. Thus, this first al-

legation is merely that a citizen of Wrightstown Township

accused plaintiff of certain zoning violations; that the

Township and the Supervisors issued a cease and desist

order against plaintiff; that the Zoning Hearing Board. (a

body completely independent of the Supervisors) held

hearings; that the Board found for the plaintiff on two of

the allegations and against plaintiff on an unspecified num-

ber of other violations; and that appeals of this decision

were filed in state courts.’

The second incident alleged in the Complaint con-

cerns Miller's application for an amendment to the applica-

ble zoning ordinance by which it sought to expand its

quarry into the 12 acre plot which is and was zoned R-2

Residential-Agriculture. (Complaint {§ 21 to 27, A22-

A-23). The Complaint states that the Supervisors per-

mitted plaintiff to try to settle the case with the Civic

Association and other defendants. (Complaint § 21, A22).

Plaintiff concluded that the attempts to settle the matter

3. The Court of Common Pleas for Bucks County affirmed

this decision of the Zoning Hearing Board by order dated Novem-

ber 18, 1977. Miller appealed this order to the Pennsylvania

Commonwealth Court which also affirmed the finding of the Zoning

Hearing Board.

Brief in Opposition by Respondents 11

were “unjustifiable” and rejected them. (Complaint § 22,

A22). It is alleged that thereafter plaintiff and the Su-

pervisors reached a “mutually agreeable basis” for rezon-

ing the 12-acre plot but that the Civic Association objected

and no agreement was concluded. (Complaint §§ 22, 23,

A22-A23). This portion of the Complaint ends with the

allegation that the Town Solicitor was replaced by another

attorney who was assigned the job of handling the litiga-

tion. (Complaint {{ 24 to 26, A23). Miller’s request for

a change in Zoning was denied. (Complaint § 27, A23).*

Thus, this portion of the Complaint alleges that plaintiff

lost an attempt to change the zoning laws. There is no

allegation that the zoning ordinances were unfair or that

the Supervisors acted unreasonably, capriciously, or

arbitrarily.

Finally, the third incident alleged in the Complaint is

that the Supervisors caused an appeal to be filed with the

Pennsylvania Environmental Hearing Board from the

granting to plaintiff of certain mining permits, and that

“defendant” (presumably the Civic Association but not ac-

tually identified in the complaint) intervened. (Com-

plaint § 28, A23). The Supervisors allegedly took no sig-

nificant part in the proceeding and supposedly paid for

unspecified costs and fees incurred. (Complaint { 29,

A24). The Pennsylvania Environmental Hearing Board

dismissed the defendants’ appeal and mining permits were

issued to Miller. Thus, this entire issue is now moot.

Conspicuously absent from these allegations is any

suggestion that the Supervisors acted outside their dele-

gated authority. There is no allegation that the Township,

the Supervisors or any other defendant acted so as to gain

personally or to damage plaintiff's competitive position.

No commercial relationship between or among any of the

4. Miller appealed this ruling to the Court of Common Pleas

for Bucks County which appeal is pending.

12 Brief in Opposition by Respondents

parties is alleged. There is no allegation of arbitrary or

capricious action by the governmental defendants or other

defendants. There is no allegation that the acts of the

governmental defendants or other defendants were inten-

tionally discriminatory or even discriminatory in effect.

In short, the complaint alleges that the government of

Wrightstown Township did not permit plaintiff to enlarge

its quarrying business and took other acts to enforce its

zoning regulations and that the citizens of Wrightstown

Township actively supported this decision. What Miller

seeks from the federal courts is an advantage not extended

to its competitors: being permitted to quarry in an area

zoned for residential use and to quarry in a manner pro-

hibited by zoning ordinances.

The governmental defendants and the other defend-

ants filed motions to dismiss the complaint on numerous

grounds. The district court granted defendants’ motion to

dismiss. Miller & Son Paving, Inc. v. Wrightstown Town-

ship Civic Association, 443 F. Supp. 1268 (E. D. Pa.

1978). The Court of Appeals for the Third Circuit

affirmed (A 10 et seq.).

Brief in Opposition by Respondents 13

REASONS WHY THIS WRIT SHOULD

BE DENIED.

The petition for certiorari does not merit review by

this Court because the decisions below are in accord with

prior decisions of this Court and do not conflict with deci-

sions of other courts.

I. A Complaint Which Alleges Nothing More Than a Local

Zoning Dispute Does Net State a Cause of Action

Under the Sherman Act.

A. No Commercial Relationship Exists Between the

Parties and the Plaintiff Has Not Pleaded That

Any Alleged Acts of Defendants Have Put It at

« Competitive Disadvantage.

Miller is urging this Court to adopt a rule which would

apply the Sherman Act to every concerted activity which

has an impact on the business or property of another.

This rule is totally unsupported in law, and, if it were

adopted, the Sherman Act would apply to every crime or

tort committed by two or more persons that had some im-

pact on another's property or business.° But the Sherman

Act was not intended by Congress to be a general grant

of federal jurisdiction to every person who was injured by

the joint activity of two or more people.

This Court has long ruled that the Sherman Act was

intended by Congress to codify the then existing common

law of unfair competition and, as such, extends to conspira-

cies which have the effect or which are committed with

the intent to restrain competition. In Apex Hosiery Co. v.

Leader, 310 U. S. 469 (1940) the Court concluded that

the intention of Congress in passing the Act:

5. For example, if every conspiracy which injures the business

or pro -_ of another were a violation of the Sherman Act, then

every bank robbery committed by two or more persons would be

an antitrust violation.

14 Brief in Opposition by Respondents

“was the prevention of restraints to free competition

in business and commercial transactions which tended

to restrain production, raise prices or otherwise con-

trol the market to the detriment of purchasers or con-

sumers of goods and services... .” 310 U. S. at 493.

This Court further stated:

“Underlying and implicit in all [the cases] is recogni-

tion that the Sherman Act was not enacted to police

interstate transportation, or to afford a remedy for

wrongs, which are actionable under state law, and

result from combinations and conspiracies which fall

short, both in their purpose and effect, of any form

of market control of a commodity, such as to ‘monopo-

lize the supply, control its price, or discriminate be-

tween its would be purchasers.” 310 U. S. at 513.

See also, Standard Oil Co. v. United States, 221 U. S. 1

(1911).

This Court’s ruling that the antitrust laws are in-

tended only to apply to conspiracies which damage free

competition has been uniformly applied by lower courts,

for example, Marjorie Webster Junior College v. Middle

Atlantic States Association of Colleges and Secondary

Schools, 432 F. 2d 650 (D. C. Cir. 1970), cert. denied, 400

U. S. 965 (1970) and Donnelly v. Boston College, 558

F. 2d 634 (Ist Cir. 1977).

It is of utmost significance that Miller does not allege

that defendants have imposed upon it, either intentionally

or unintentionally, an unreasonable competitive restraint.

Furthermore, no commercial relationship whatsoever is

alleged to have existed between Miller and any of the de-

fendants. The complaint merely states that the govern.

mental defendants applied existing zoning ordinances and

prevented plaintiff from expanding its business. The com-

Brief in Opposition by Respondents 15

plaint itself states that plaintiff has been conducting its

business gn the “45-acre plot” since 1959. (Complaint

14, Al5).

Miller attempts to portray its own efforts to circum-

vent existing zoning ordinances and therefore secure ad-

vantages not given to its competitors as attempts by

defendants to “destroy its business”. Plaintiff's entire case

boils down to a complaint that it was not given a special

privilege. This complaint obviously does not state a cause

of action under the antitrust laws and the Court of Ap-

peals and the District Court have so held.

B. The Complaint Alleges Only That the Govern-

mental Defendants Acted Entirely Within Their

Legal Authority in Enforcing Zoning Ordinances

and in Deciding Miller's Request for a Change

of Zoning; Their Actions Are Thus Beyond the

Scope of the Antitrust Laws.

1. The Noerr-Pennington Doctrine.

The only allegations of a “conspiracy” under the anti-

trust laws in this case relate to the actions of public off-

cials in the performance of their duties and responsibilities

as members of an elected governmental body who con-

sidered the wishes of their constituents when they made

decisions in zoning matters. Thus, the alleged “con-

spiracy’ amounts to nothing more than a charge that the

Supervisors did what elected officials are supposed to do—

consider the view of their constituents.

Such acts by public officials are not violations of the

antitrust laws under the doctrine known as Noerr-Penning-

ton. As this Court held in United Mine Workers of

America v. Pennington, 381 U. S. 657 (1965):

“Joint efforts to influence public officials do not vio-

late the antitrust laws even though intended to elimi-

16 Brief in Opposition by Respondents

nate competition. Such conduct is not illegal, either

standing alone or as part of a broader scheme itself

violative of the Sherman Act.” 381 U. S. at 670.

See also Eastern Railroad President's Conference v. Noerr

Motor Freight, 365 U. S. 127 (1961).

A clear case is presented in the instant action for the

application of the Noerr-Pennington doctrine. Here, no

allegations of personal involvement on the part of the gov-

ernmental defendants is alleged. The Supervisors are only

alleged to have performed their public duties, and the

private defendants are alleged only to have pressed their

views on an obviously important local issue before their

elected officials. It must be stressed that Miller has not

alleged that defendants made an attempt to interfere di-

rectly with the business relationships of a competitor, as

no competitive relationship exists in this case. Moreover,

it has not been alleged that defendants denied Miller free

and unlimited opportunity to express its position. Indeed,

the complaint clearly states that plaintiff has had and con-

tinues to have numerous opportunities to argue its position

before local governmental bodies and Pennsylvania courts,

none of which have been named as defendants or co-con-

spirators. (Complaint {§ 19, 21, 28, Al6, 17,18). It was

Miller itself which instigated most of the adjudicatory pro-

ceedings in this case; it has not been the passive victim of

litigation brought against it.

2. The Doctrine of Parker v. Brown.

This Court has long recognized that basic constitu-

tional concepts of federalism demand that federal courts

do not apply the federal antitrust laws to the workings of

state governments. This doctrine was first established in

Parker v. Brown, 317 U. S. 341 (1942) where officials of

the government of the State of California were sued by a

Brief in Opposition by Respondents 17

private plaintiff who alleged that they violated the Sher-

man Act when they applied state law. This Court re-

jected those allegations:

“In a dual system of government in which under the

Constitution, the states are sovereign, save only as

Congress may constitutionally subtract from. their

authority, an unexpressed purpose to nullify a state’s

control over its officers and agents is not lightly to be

attributed.” 317 U. S. at 351.

In the case sub judice, the governmental defendants

are alleged to have violated the Sherman Act by their

actions in applying the Pennsylvania Municipalities Plan-

ning Code. 53 P. S. § 10101, et seg. The actions of the

governmental defendants are nothing more than the

actions of a local government ruling on routine zoning

matters. As such, the governmental defendants are pro-

tected by the rule as stated in Parker.

There can be no doubt that actions of the govern-

mental defendants which are alleged to be violations of

the Sherman Act were taken entirely pursuant to the

authority of Pennsylvania statutory law. Under the

Municipalities Planning Code (the “Code” ), Wrightstown

Township and its Supervisors have the clear authority and

duty to rule on zoning matters. Such rulings are taken

pursuant to a complex regulatory scheme of land-use man-

agement, and the decisions of local governmental officials,

such as the defendants herein, are subject to the constant

review of superior state agencies and state courts.

This Court has reaffirmed and explained the doctrine

of Parker v. Brown in numerous cases, the most recent of

which is City of Lafayette, La. v. La. Power and Light

Company, 435 U. S. 389 (1978). The Court concluded

that a local governmental unit has immunity from the

antitrust laws where its activities are undertaken pursuant

18 Brief in Opposition by Respondents

to authority of the state acting as sovereign and went on

to enunciate the test for determining whether or not a local

municipality has acted pursuant to authority given to it

by the state acting as sovereign and therefore enjoys im-

munity under Parker v. Brown:

“While a subordinate governmental unit’s claim to

Parker immunity is not as readily established as the

same claim by a state government sued as such, we

agree with the Court of Appeals that an adequate state

mandate for anticompetitive activities of cities and

other subordinate governmental units exists when it

is found ‘from the authority given a governmental en-

tity to operate in a particular area, that the legislature

contemplated the kind of action complained of’. 532

F. 2d, at 434.” 435 U. S. at 415.

The Supreme Court of Pennsylvania has noted that

when Supervisors of a Second Class Township in Penn-

sylvania enforce zoning regulations “there can be no ques-

tion that the supervisors’ actions were taken in the course

of their duties and within the scope of their authority”.

Jonnet v. Bodick, 431 Pa. 59, 62 (1968). Even a cursory

review of the Pennsylvania Municipalities Planning Code

(53 P. S. § 10101, et seq.) will show that the Common-

wealth of Pennsylvania has comprehensively regulated

land use. The Pennsylvania Municipalities Planning Code

clearly authorizes and even mandates the acts of the gov-

ernmental defendants complained of in the complaint.

See Sections 601, 604, 605, 609.1 and 617 (53 P. S.

§§ 10601, 10604, 10605, 10609.1 and 10617). It is obvious

that the “legislature contemplated the kind of action com-

pleted of” herein. City of Lafayette, supra.

If this Court were to interfere with the Common-

wealth of Pennsylvania’s pervasive supervision of zoning

Brief in Opposition by Respondents 19

regulation and enforcement, the constitutional foundation

of federalism would be severely damaged. It is just this

violation of sovereign state power that Parker v. Brown,

supra, was meant to prevent. No clearer case can be

imagined for the judicial restraint of federal power. Ac-

cordingly, the decisions of the lower courts herein are in

complete accord with this and other courts’ decisions con-

struing the doctrine of Parker v. Brown, supra.

II. The Complaint Clearly Does Not State a Cause of

Action Under the Civil Rights Act or the Constitution

of the United States.

A. Plaintiff's Claims Relating to Zoning Do Not Pre-

sent a Substantial Federal Question and Cannot

Be Heard in Federal Court.

The Civil Rights Acts were passed to insure that no

person would be discriminated against because of his race,

national origin, religion or other class-based reason. In

the instant case a corporation is suing a township and its

supervisors for merely carrying out their duties under

Pennsylvania law to enforce existing residential neighbor-

hoods. The complaint does not make any allegation that

governmental defendants applied zoning in a discrimina-

tory manner. Miller was treated exactly like other quarries

in Wrightstown Township and there is no allegation to the

contrary.

Numerous cases have held that zoning involves the

exercise of judgment which is legislative in character and

not subject to federal court review unless the plaintiff can

show that the defendants acted arbitrarily. South Gwinett

Venture v. Pruitt, 491 F. 2d 5 (5th Cir. 1974): Blackman

v. City of Big Sandy, Texas, 507 F. 2d 935 (5th Cir. 1975);

Stone v. City of Maitland, 446 F. 2d 83 (5th Cir. 1971):

Steel Hill Development, Inc. v. Town of Sanbornton, 469

F. 2d 956 (Ist Cir. 1972).

20 Brief in Opposition by Respondents

This Court discussed permissible features of zoning

at length in Village of Belle Terre v. Boraas, 416 U. S. 1, 9

(1974) by stating:

“A quiet place where yards are wide, people few, and

motor vehicles restricted are legitimate guidelines in

a land-use project addressed to family needs. This

goal is a permissible one within Berman v. Parker,

supra. The police power is not confined to elimina-

tion of filth, stench, and unhealthy places. It is ample

to lay out zones where family values, youth values,

and the blessings of quiet seclusion and clean air

make the area a sanctuary for people.”

Thus, zoning is an aspect of the State’s constitutional

police power, and a federal court may not interfere with a

local state government in its zoning activities without

undermining the constitutional scheme of federalism.

B. The Allegations of Civil Rights Act Violations

Were Properly Dismissed.

There is no doubt that the Complaint in this action

fails to allege a cause of action under the civil rights

statutes. There is no claim of lack of notice or that the

hearing procedures awarded plaintiff were inadequate or

unfair. Indeed, plaintiff admits in Paragraph 13 of his

complaint that several hearings were held concerning the

order from the Township for plaintiff to cease and desist

from certain activities in connection with quarrying in the

45-acre plot. The plaintiff also admits in Paragraph 21 of

the complaint that eight separate hearings were held in

connection with the plaintiff's petition to rezone its 12-acre

plot. Plaintiff further admits in Paragraph 29 of the com-

plaint that hearings and proceedings took place before the

Pennsylvania Environmental Board. There is no allega-

Brief in Opposition by Respondents 21

tion anywhere in the complaint of any arbitrary action by

any of the defendants. In fact, as the courts below recog-

nized, there are no specific allegations of any kind in the

Complaint. For example, paragraph 23 refers to “objec-

tions” by the “defendants” without identifying which de-

fendants are being accused. Paragraph 28 states that

“defendant . . . intervened in that appeal” again without

any specific reference. Paragraph 28 is also ambiguous in

that it charges that the “Supervisors took no significant

part in the proceeding” without specifying what was sup-

posedly done (or not done) and how these alleged actions

supposedly violate plaintiff's civil rights. Most importantly,

the complaint does not specify what due process rights

Miller has been denied or even that there was a denial of

due process. :

Conclusory allegations of this sort simply do not allege

the discriminatory acts necessary to state a cause of action

under the civil rights statute. Rotolo v. Borough of

Charleroi, 532 F. 2d 920 (3d Cir. 1976); Negrich v. Hohn,

379 F. 2d 213 (3d Cir. 1967).°

6. While the Civil Rights Act creates a federal cause of action,

the a of particular public officials from liability is deter-

mined by reference to the principles of state common law. Tenney

v. Brandhove, 341 U. S. 367 (1951); Dombrowski v. Eastland, 387

U. S. 82 (1967); Bauers v. Heisel, 361 F. 2d 581 (3d Cir. 1966).

In Pennsylvania, immunity is well established for township super-

visors as high governmental officials. In Jonnet v. Bodick, 431 Pa.

“ad aged the Supreme Court of Pennsylvania in a zoning action

eld:

“There are no more important officers in second class town-

ships than the supervisors. They exercise the entire legislative

som executive powers of the municipality and there can be no

doubt of the fact that they do indeed exercise policy-making

functions. We hold that the supervisors are within the class

of ‘high public officials’ protected by absolute privilege.” 431

Pa. at 62 [emphasis added]

The Supreme Court of Pennsylvania has recently reaffirmed the

principle in DuBree v. Commonwealth of Pennsylvania, 393 A. 2d

293 (1978) that the public has an important interest in shielding

22 Brief in Opposition by Respondents

C. No Conceivable Fourteenth Amendment Claim

Has Been Alleged.

In Washington v. Davis, 426 U. S. 229 (1976), this

Court discussed the purpose of the equal protection clause

of the Fourteenth Amendment holding:

“The central purpose of the Equal Protection Clause

of the Fourteenth Amendment is the prevention of

official conduct discriminating on the basis of race.”

426 U.S. at 239.

The Court recognized that consideration of race normally

introduces a capricious and irrelevant factor working an

invidious discrimination. Anderson v. Martin, 375 U. S.

399 (1964); Germann v. Kipp, 429 F. Supp. 1323 (W. D.

Mo. 1977). Obviously, plaintiff Miller & Son Paving, Inc.,

does not allege any racial discrimination on the part of

defendants.

But even more than this, Miller cannot and did not

allege any discrimination of any kind against it. Miller's

primary complaint is that Wrightstown Township and its

Supervisors refused to change the zoning of a particular

6. (Cont'd. )

public officials with decision making authority from the threat of

personal liability.

The necessity for this immunity is seen most clearly in the

instant situation. The Supervisors, who are given the power, obli-

gation and duty under Pennsylvania law to protect their township

and the citizens of their township by the proper use of zoning, have

refused to permit plaintiff to expand its quarry operations in the

township. After hearings and upon presentation of all positions,

the Supervisors made the decision that state law authorizes and

compels them to do. If every party who loses a zoning case can

bring the Supervisors to court for their refusal to agree with them,

then the Supervisors will not be able to decide openly and freely

what is best for their constituents. The immunity of high public

officials, which has long been established in Pennsylvania, serves

an important democratic — This court has established that

such immunity doctrines are to ya tag by federal courts in civil

rights cases. Thus, the decision of the Court of Appeals and the

District Court were clearly in accord with applicable law.

Brief in Opposition by Respondents 23

piece of land in accordance with plaintiff's wishes. If it is

conceivable that there could be an equal protection claim

as to some aspects of zoning, this certainly is not such a

situation. There are no allegations, as indeed it is not true,

that Wrightstown Township and the Supervisors changed

the zoning on the land where Miller is presently mining

forcing it to shut down its operations. All that defendants

are charged with doing is enforcing valid land-use regula-

tions. Far from invidious discrimination, there is no dis-

crimination alleged at all.

This Court has held that zoning ordinances “where

family values, youth values, and the blessings of quiet

seclusion and clean air make the area a sanctuary for

people” are a proper exercise of zoning power. Village of

Belle Terre v. Boraas, 416 U. S. 1, 9 (1974). This Court,

in County Board of Arlington County, Virginia v. Richards,

434 U. S. 5 (1977), found that a zoning ordinance pro-

hibiting non-residents from parking in a community was

constitutional. The Court concluded that social and

environmental objectives are not prohibited by the Con-

stitution, stating:

“The Constitution does not outlaw these social and

environmental objectives, nor does it presume distinc-

tions between residents and non-residents of a local

neighborhood to be invidious. The Equal Protection

Clause requires only that the distinction drawn by an

ordinance like Arlington’s rationally promote the regu-

lation’s objectives. . . . On its face, the Arlington

ordinance meets this test.” 434 U. S. at 7.

Plaintiff has not alleged in its Complaint that the acts of

Wrightstown Township and its Supervisors are arbitrary

or capricious. Therefore, for this reason alone, the Four-

teenth Amendment cannot apply to plaintiff's claim.

In addition, of course, there is no allegation in Miller's

Complaint that the acts of Wrightstown Township and the

24 Brief in Opposition by Respondents

Supervisors were done with the intent to discriminate

against plaintiff. Accordingly, the claims under the Four-

teenth Amendment were properly dismissed under this

Court's rulings in Arlington Heights v. Metropolitan Hous-

ing Corporation, 429 U. S. 252 (1977) and Washington Ri:

Davis, 426 U. S. 229 (1976). :

CONCLUSION.

For all the reasons expressed herein, the governmental

defendants submit that there is no doubt that the com-

plaint in this case was properly dismissed. There exists no

issue of law pertinent to this case which is unsettled.

There is no conflict among the circuits with regard to this

case. In short, the plaintiff has attempted to make a fed-

eral case out of a zoning dispute and the Court of Appeals

merely reached the obvious conclusion that dismissal of

the complaint was mandated by numerous well-established

rules of law.

Respectfully submitted,

LEONARD BARRACK,

GERALD J. Ropos,

Pau J. McMaunon,

BARRACK, Ropos & MCMAHON,

2000 Market Street,

Philadelphia, Pa. 19103

(215) 963-0600

Of Counsel: Attorneys for Respondents,

Ronacp H. SHERR, Wrightstown Township,

SPENCER, SHERR & Harrison E. Dow,

Moss, P. C., Aldenlee Spell and

107 E. Main Street, N. Kline Fisher.

Norristown, Pa. 19401

(215) 279-5300