### 1999 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

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# H olt C a r go S ys I nc v

. DE R i ve r P or t Auth

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 98-1047,98-1262

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. e du/thir dc ir c uit_1999/12Filed January 20, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-1047 and 98-1262

HOLT CARGO SYSTEMS, INC.; ASTRO HOLDINGS, INC.; HOLT HAULING AND WAREHOUSING SYSTEM, INC., Appellants

v.

DELAWARE RIVER PORT AUTHORITY; PORTS OF PHILADELPHIA AND CAMDEN; PHILADELPHIA REGIONAL
PORT AUTHORITY

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 94-cv-07778) District Judge: Honorable Norma L. Shapiro

Argued October 30, 1998

BEFORE: SLOVITER, GARTH, and MAGILL,* Circuit Judges

(Filed: January 20, 1999)

___________________________________________________ ______________
* Hon. Frank J. Magill, Senior United States Circui t Judge for the Eighth Circuit, sitting by designation.Larry R. Wood, Jr.

Pepper, Hamilton & Scheetz
18th & Arch Streets 3000 Two Logan Square Philadelphia, PA 19103-2799

Paul R. Rosen (Argued)
Bruce S. Marks Spector, Gadon & Rosen, P.C. 1635 Market Street
Seven Penn Center - 7th Floor Philadelphia, PA 19103

Attorneys for Appellants in Appeal No. 98-1047

John M. Elliott Henry F. Siedzikowski (Argued) Timothy T. Myers
Eric J. Bronstein Elliott Reihner Siedzikowski & Egan,
P.C. 925 Harvest Drive Union Meeting Corporate Center V Blue Bell, PA 19422

Attorneys for Appellee, Delaware River Port Authority in Appeal No. 98-1047

Richard A. Sprague Geoffrey C. Jarvis Charles J. Hardy Deborah B. Miller Sprague & Sprague 135 South 19th Street Suite 400 Wellington Building Philadelphia, PA 10103

Attorneys for Appellee, The Port of Philadelphia and Camden, Inc. In No. 98-1047

2Paul R. Rosen (Argued)

Jeffrey M. Goldstein
Brooke C. Madonna
Jonathan M. Peterson Spector, Gadon & Rosen, P.C. 1635 Market Street
Seven Penn Center - 7th Floor Philadelphia, PA 19103

Attorneys for Appellants in Appeal No. 98-1262

John M. Elliott Henry F. Siedzikowski (Argued) Timothy T. Myers Eric J. Bronstein Elliott Reihner Siedzikowski & Egan,
P.C. 925 Harvest Drive Union Meeting Corporate Center V Blue Bell, PA 19422

Attorneys for Appellee, Delaware River Port Authority in Appeal No. 98-1262

Richard A. Sprague Geoffrey C. Jarvis Charles J. Hardy Tracy M. Schaeffer Sprague & Sprague 135 South 19th Street Suite 400 Wellington Building Philadelphia, PA 10103

Attorneys for Appellee, The Port of Philadelphia and Camden,Inc. In Appeal No. 98-1262

Francis X. Crowley Blank, Rome, Comisky & McCauley Rose Tree Corporate Center

31400 North Providence Road

P.O. Box 1210, Suite 301 Media, PA 19063

Patrick J. O'Connor Karl L. Prior
Cozen & O'Connor The Atrium
1900 Market Street Philadelphia, PA 19103

Attorneys for Appellee, Philadelphia Regional Port Authority In Appeal No. 98-1262

OPINION OF THE COURT

GARTH, Circuit Judge:

Plaintiffs Holt Cargo Systems, Inc. ("Holt Cargo"), Astro Holdings, Inc. ("Astro"), and Holt Hauling & Wareho using System, Inc. ("Holt Hauling") (collectively "Holt") , brought this action in the Eastern District of Pennsylvania against the Delaware River Port Authority ("DRPA"), the Por t of Philadelphia and Camden, Inc. ("PPC"), and the Philadelphia Regional Port Authority ("PRPA") (coll ectively, "Port Authorities"). Holt charged the Port Authorit ies with conspiring to drive Holt out of business, and alleg ed that the Port Authorities' actions denied Holt of substa ntive Due Process and Equal Protection of the laws. Holt oper ates various marine terminals in the Port of Philadelphi a and Camden, including the Packer Avenue Marine Terminal

.

Holt's case was built around alleged "predatory act s" taken by the Port Authorities, some of which are re lated to Holt's lease of the Packer Avenue Marine Terminal ( "Packer Terminal") from PRPA in 1990 ("Amended Packer Lease "). Other acts alleged involved the Port Authorities' u nrelated efforts to prevent Holt from keeping current or obt aining new business. Among other things, the Amended Packe r Lease gave Holt the right to develop other parcels of land at

4Piers 96 South, 98 South, and 100 South subject to PRPA's

existing leases with third parties, and Holt allege s that it was wrongly denied the right to develop those parce ls. Holt alleges that its inability to develop the parcels c aused its overall development plan for its terminal, which wa s to include a dedicated passenger terminal, to be thwar ted.

Holt further alleges that various other non-defenda nt entities and individuals conspired with the Port Au thorities, including the South Jersey Port Corporation ("SJPC" ), Pasha Auto Warehousing ("Pasha"), a lessee of"Pier 96 South," and the "executive directors" of PRPA, PPC, DRPA, and SJPC.1

After the parties had exchanged thousands of pages of documents over several years of discovery, the Dist rict Court entered summary judgment on behalf of the defendant Port Authorities on the only claims left before the District Court -- alleged constitutional denials of substantive Due Process and Equal Protection. Holt Cargo Sys., Inc. v. Delaware River Port Auth., 20 F. Supp . 2d 803 (E.D. Pa. 1998). The District Court previously had dismissed Holt's Admiralty Act claims, Shipping Act claims, antitrust claims, contract claims, and PPC's counte rclaim against Holt for violations of the Amended Packer L ease. Holt refiled similar claims with the Federal Mariti me Commission ("FMC") under these non-constitutional theories, and the FMC action is currently pending. Holt Cargo Systems, Inc. v. DRPA, Federal Maritime Commi ssion, No. 96-13. The District Court also previously grant ed PPC's motion to dismiss Holt's claim for violation of pro cedural Due Process, see 1997 WL 714843, and Holt has not appealed that ruling.

In the instant case, Holt appeals from the District Court's final order of March 23, 1998, which granted summar y judgment on Holt's Equal Protection and Substantive Due

___________________________________________________ ______________
1. In 1992, after years of competition, Pennsylvani a and New Jersey entered an interstate compact, signed into law by C ongress and the President under the Interstate Compact Clause, U.S. Const. art. I, S 10, cl. 3 ("Amended Compact"). The Amended Compact crea ted DRPA, and SJPC and PRPA would eventually cease to exist in fa vor of DRPA. PPC is a subsidiary of DRPA.

5Process claims in favor of the Port Authorities. Ho lt filed a

timely notice of appeal. The district court had sub ject matter jurisdiction pursuant to 28 U.S.C. SS 1331, 1343; this Court exercises jurisdiction pursuant to 28 U. S.C. S 1291.

Voluminous briefs and a comprehensive appendix were filed with us on appeal. We then had an extensive o ral argument at which counsel were heard. We are persua ded that the injuries alleged to have been suffered by Holt do not stem from a constitutional violation. We will t herefore affirm the judgment of the appeal in No. 98-1262 fo r substantially the reasons stated in the thorough op inion of the District Court. Holt Cargo Sys., Inc. v. Delawa re River Port Auth., 20 F. Supp. 2d 803 (E.D. Pa. 1998).

We will also dismiss the appeal in 98-1047, but our dismissal will be without prejudice to the parties raising this issue before the FMC if they so desire. The su bject of Holt's appeal in 98-1047 involved Holt's allegation that a particular memorandum, known as the "Curran Memo," was privileged from disclosure. The record does not disclose that the District Court had the unredacted Curran M emo before it. In affirming the District Court's summar y judgment, we are of the view that the issue of the Curran Memo privilege raised in 98-1047 has become moot.

A True Copy:
Teste:

Clerk of the United States Court of Appeals for the Third Circuit

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