1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-12-1995

Siegel v Carrier Express

Precedential or Non-Precedential:

Docket 94-1885

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Recommended Citation

"Siegel v Carrier Express" (1995). 1995 Decisions. Paper 131.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/131
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 94-1885 

 ___________ 

 SIEGEL TRANSFER, INC.; ROBIN EXPRESS 

 TRANSFER, INC.; JORUSS TRUCKING, INC., 

 Appellants

 vs. 

 CARRIER EXPRESS, INC.; BETHRAN, INC.; 

 BETHLEHEM STEEL CORPORATION 

 ___________ 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Civil No. 92-cv-07370) 

 ___________ 

 

Argued 

 March 27, 1995 

 Before: MANSMANN, COWEN and LEWIS, Circuit Judges. 

 (Filed May 12, 1995) 

 ___________ 

David H. Moskowitz, Esquire (ARGUED) 

David H. Moskowitz & Associates 

1890 Rose Cottage Lane 

Malvern, PA 19355 

 COUNSEL FOR APPELLANTS 

Nancy J. Gellman, Esquire (ARGUED) 

Debra C. Swartz, Esquire 

Conrad, O'Brien, Gellman & Rohn 

1515 Market Street 

16th Floor 

Philadelphia, PA 19102 

 COUNSEL FOR APPELLEES 

 ___________ 

 OPINION OF THE COURT 

 __________ 
MANSMANN, Circuit Judge. 

 This case arises out of the termination of a motor 

carrier contract. The plaintiffs, Siegel Transfer, Inc., Robin 

Express Transfer, Inc., and Joruss Trucking, Inc., alleged that 

the contract's termination and subsequent refusals to deal on the 

part of the defendants, Bethlehem Steel Corporation and its 

subsidiaries, Bethran, Inc. and Carrier Express, Inc., violated 

section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. The 

plaintiffs also charged the defendants with violations of the 

Interstate Commerce Act, 49 U.S.C. § 10101 et seq., and the 

Elkins Act, 49 U.S.C. §§ 11901-11903, 11915-11916, and with 

several state law causes of action. The plaintiffs now appeal 

the district court's decision to grant the defendants' motion for 

summary judgment and motion to dismiss. The issues we address 

are whether the companies in the Bethlehem Steel corporate family 

and their agents were legally capable of engaging in an antitrust 

conspiracy with each other, whether the plaintiffs had a private 

right of action under the federal transportation statutes, and 

whether the defendants breached the parties' agreement. 

 In the wake of the Supreme Court's decision in 

Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), 

we hold that the defendants were legally incapable of conspiring 

with one another or with their agents. We also find that neither 

the Interstate Commerce Act nor the Elkins Act authorizes the 

plaintiffs to file a private cause of action in a federal court. 

Finally, we conclude that the defendants are not liable for 
breach of contract. Thus, we will affirm the judgment of the 

district court. 

I. 

 We begin our analysis by reviewing the evidence 

presented in this case. In considering a motion for summary 

judgment, a court does not resolve factual disputes or make 

credibility determinations, and must view facts and inferences in 

the light most favorable to the party opposing the motion. Big 

Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 

1363 (3d Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1262 

(1993). 

 Siegel Transfer, Robin Express, and Joruss Trucking 

were owned by Russell Siegel and his wife, and were based in 

Sparrows Point, Maryland. Siegel Transfer, a motor contract 

carrier,1 hauled steel, lumber, telephone poles and heavy 

 

1. Under the Interstate Commerce Act, motor carriers fall 

into two defined categories: motor common carriers and motor 

contract carriers: 

 § 10102. Definitions

 In this subtitle -- 

 (14) "motor common carrier" means a person 

holding itself out to the general public to 

provide motor vehicle transportation for 

compensation over regular or irregular 

routes, or both. 

 (15) "motor contract carrier" means -- 

 (A) a person, other than a motor 

common carrier, providing motor vehicle 

transportation of passengers for 
equipment for various shippers; Robin Express leased trucks, 

trailers and drivers to Siegel Transfer and other carriers; and 

Joruss Trucking also leased trucks to Siegel Transfer. 

 In 1985, Bethlehem Steel made plans to acquire two 

motor carriers, Bethran and Carrier Express, through its 

subsidiary, the Philadelphia Bethlehem and New England Railroad. 

While Bethlehem Steel did not anticipate that it would satisfy 

all of its transportation needs by acquiring these carriers, it 

hoped to capture at least a portion of the revenue it was paying 

to outside truckers. 

(..continued) 

compensation under continuing 

agreements with a person or a limited 

number of persons--- 

 (i) by assigning motor vehicles 

for a continuing period of time 

for the exclusive use of each 

such person; or 

 (ii) designed to meet the 

distinct needs of each such 

person; and 

 (B) a person providing motor vehicle 

transportation of property for 

compensation under continuing 

agreements with one or more persons-- 

 (i) by assigning motor vehicles 

for a continuing period of time 

for the exclusive use of each 

such person; or 

 (ii) designed to meet the 

distinct needs of each such 

person. 

49 U.S.C. § 10102(14),(15). 
 Because section 11341 of the Interstate Commerce Act 

gives the Interstate Commerce Commission exclusive authority to 

oversee acquisitions of this type, Bethlehem and the Railroad 

filed a petition, requesting permission to acquire control2 of 

Bethran and Carrier Express, without having to engage in the 

Commission's prior approval process. Section 11343(e) authorizes 

the Commission to exempt an acquisition from regulatory oversight 

if it finds that regulation is not necessary to carry out the 

transportation policy of the Act,3 and the acquisition is limited 

in scope or unlikely to result in an abuse of market power. 49 

U.S.C. § 11343(e). Finding that the proposed acquisition met 

these criteria, the Commission exempted it from the Act's prior 

approval requirements. Under section 13341, the Commission's 

exemption not only authorized the parties to proceed with the 

acquisition, but immunized it from the antitrust laws as well. 

49 U.S.C. § 13341. Once the acquisition was finalized, Bethlehem 

Steel owned 99.92% (8,993 of 9,000 shares) of the Railroad's 

 

2. The Act defines "control" in pertinent part as "actual 

control, legal control, and the power to exercise control, 

through or by (A) common directors, officers, stockholders, a 

voting trust, or a holding or investment company, or (B) any 

other means." 49 U.S.C. § 10102(7). 

3. The Act aims to recognize and preserve the inherent 

advantages of various modes of transportation; promote safe, 

economical and efficient transportation; encourage sound economic 

conditions among carriers; encourage the establishment and 

maintenance of reasonable rates without unreasonable 

discrimination or unfair or destructive competitive practices; 

coordinate federal and state efforts on transportation matters; 

and encourage fair wages and working conditions in the 

transportation industry. 49 U.S.C. § 10101. 
stock;4 the Railroad owned 100% of Bethran's stock; and Bethran 

owned 100% of Carrier Express' stock. 

 Carrier Express, already a licensed common and contract 

carrier, obtained broker authority from the Commission. 

Organized to operate without exit barriers, Carrier Express did 

not hire employees, acquire equipment or engage its own drivers. 

Instead, it used commissioned, non-exclusive agents in different 

parts of the country to make arrangements with owner-operators or 

with other carriers who had access to trucks and drivers to carry 

the freight it was under contract to transport. The agents made 

hauling arrangements with whomever Carrier Express authorized to 

transport its freight. 

 Carrier Express operations were managed by Oak 

Management, Inc. Under the parties' contract, Oak Management 

oversaw all of Carrier Express' day-to-day functions and received 

a percentage of Carrier Express' revenues as payment for its 

services. Thomas Rediehs, a Vice President of Carrier Express, 

was the owner and President of Oak Management, and Kermit Bryan 

was Oak Management's Executive Vice President. 

 Oak Management also managed the operations of Rediehs 

Express, a motor common carrier, motor contract carrier and 

broker. Rediehs' wife and children owned Rediehs Express, and 

Bryan was its Operations Manager. Rediehs Express hauled 

 

4. The seven shares of stock that Bethlehem Steel did not 

own were issued in the name of the Railroad's current officers, 

and could not be sold or transferred. Whenever the Railroad 

replaced an officer, the stock was reissued in the new officer's 

name. 
Bethlehem Steel products from Bethlehem Steel's plant located in 

Burns Harbor, Indiana, and did some business with Carrier 

Express. 

 Under its motor contract carrier operating authority, 

Carrier Express entered into a contract dated January 15, 1986 

with Bethlehem Steel, agreeing to transport Bethlehem Steel goods 

at given rates. In July, 1988, a contract between Bethlehem 

Steel and Bethran was assigned to Carrier Express,5 which 

obligated Carrier Express to refund to Bethlehem Steel a sum 

equal to 5% of the total revenue it received for transporting 

Bethlehem Steel freight. 

 In late 1985, Siegel Transfer, Carrier Express and 

"Bethran doing business as Carrier [Express]" executed a 

"Contract for Transportation of Property Between A Motor Carrier 

Broker [Carrier Express] and a Motor Contract Carrier [Siegel 

Transfer] In Accordance With the Provisions of 49 C.F.R. 1053." 

The contract took effect on January 4, 1986, and after an initial 

term of three years, remained in effect from year to year, 

subject to the right of either party to terminate upon thirty 

days' written notice. Under the contract, Carrier Express was 

obligated to offer Siegel Transfer a minimum of 30,000 pounds of 

authorized commodities per year for transport and to pay Siegel 

Transfer 90% of the freight rate received by Carrier Express from 

the shipper. Russell Siegel was named a Carrier Express agent 

for the Baltimore area and agreed to receive a 6% commission from 

 

5. In July, 1988, Bethran ceased motor carrier operations. 
Carrier Express on the loads he arranged for shipment by 

companies other than Siegel Transfer. 

 While the contract was in effect, Siegel Transfer 

transported Bethlehem Steel goods received from Carrier Express 

almost exclusively out of Bethlehem Steel's Sparrows Point plant. 

As to the Bethlehem Steel freight offered by Carrier Express to 

Siegel Transfer for transport, the 5% refund that Carrier Express 

owed to Bethlehem Steel was paid from the 10% of the freight rate 

Carrier Express retained, not from the 90% of the freight rate 

that Siegel Transfer was paid. 

 In 1988, while carrying freight received from Carrier 

Express, a Siegel Transfer vehicle was involved in a serious 

accident in Alabama. Joined in the lawsuit which followed, 

Carrier Express paid a substantial sum of money to settle the 

claims brought against it. That same year, another Siegel 

Transfer vehicle was involved in another serious accident in 

Georgia. In December of 1989, Carrier Express was temporarily 

suspended from transporting goods for Bethlehem Steel because 

Siegel Transfer had violated Bethlehem Steel's loading and weight 

limit rules. 

 James C. Matthews, Vice-President of Carrier Express 

and Bethran, was aware of and concerned about these incidents. 

In 1989, Matthews decided to terminate Carrier Express' contract 

with Siegel Transfer. This decision was based, according to 

Matthews, on his unwillingness to expose Carrier Express to the 

continued risks of doing business with Siegel Transfer. Matthews 
spoke of his intention to terminate the contract with Carl 

Eckenrode, the President of Bethran, Carrier Express and the 

Railroad, and a Bethran director; Steven Mollman, Bethran's 

operations manager and one of its directors; and William Van 

Heel, a district transportation manager of Bethlehem Steel and a 

Bethran director. Additionally, Matthews informed Rediehs and 

Bryan of his decision. Believing that Carrier Express would not 

be able to find owner-operators or carriers to perform the 

hauling that Siegel Transfer was handling and would, therefore, 

suffer a loss of revenue and profit, Rediehs argued against the 

termination. 

 Matthews, Rediehs, Bryan and Van Heel convened on 

January 4, 1990 at Bethlehem Steel's Sparrows Point plant to 

inform Siegel that Carrier Express' contract with Siegel Transfer 

was terminated. Prior to their speaking personally with Siegel, 

Rediehs again voiced his opposition to the termination. 

Matthews, however, refused to alter his decision. Consequently, 

when Siegel arrived at the meeting, he was told of the 

termination, and later that day, received written notice from 

Matthews. 

 During the thirty-day notice period which followed, 

Carrier Express offered Siegel Transfer over 600,000 pounds of 

freight to transport. At Carrier Express' direction, Oak 

Management commenced instructing Carrier Express agents that the 

contract with Siegel Transfer had been terminated and that Siegel 

Transfer was no longer authorized to carry Carrier Express 

freight. As an accommodation to Carrier Express, Oak Management 
assumed responsibility for the Baltimore Carrier Express agency 

at a 4% commission rate, but only reluctantly, expecting that the 

agency would be unprofitable. Just as Rediehs had anticipated, 

Carrier Express was unable to find trucks to replace those that 

Siegel Transfer had made available; the amount of freight that 

Carrier Express transported out of Sparrow Point decreased and 

its revenues declined. Oak Management, in turn, suffered a 

financial loss. Moreover, Oak Management lost money as Carrier 

Express' Baltimore agent and relinquished the position in 1991. 

 Shortly after the contract's termination, Robin Express 

leased all of its trucks and drivers to Ligon Nationwide, a 

trucking company of substantial size. Under the arrangement with 

Ligon Nationwide, which lasted for approximately one year, Robin 

Express trucks were used to transport freight for several 

shippers, including Bethlehem Steel. During this time, one of 

the Bethlehem Steel district transportation superintendents, for 

whom Siegel Transfer's safety record was unacceptable, advised an 

agent for Glass Container, a motor carrier, not to use Siegel 

equipment to haul products from the Bethlehem Steel rod mill 

located in Sparrows Point. 

 In February, 1990, Siegel Transfer relinquished its 

contract carrier operating authority and ceased doing business; 

Joruss Trucking suspended operations in July, 1990. In November 

1990, Robin Express entered into lease agreements with other 

truckers, who used Robin Express trucks and drivers to carry 

loads for Bethlehem Steel and a number of other shippers. Unable 
to secure a sufficient amount of business, however, Robin Express 

ceased to operate in 1991. 

 On December 23, 1992, Siegel Transfer, Robin Express 

and Joruss Trucking commenced this action against Carrier 

Express, Bethran and Bethlehem Steel. On February 15, 1994, the 

plaintiffs filed an Amended Complaint, asserting two federal 

causes of action, one under section 1 of the Sherman Act, 15 

U.S.C. § 1 (Count I), and the other under the Interstate Commerce 

Act, 49 U.S.C. § 10101 et seq., and the Elkins Act, 49 U.S.C. §§ 

11901-11903, 11915-11916 (Count XI), as well as several state law 

claims: violations of the Maryland Antitrust Act (Count II), 

breach of contract (Counts III and IV), breach of the implied 

covenant of good faith (Counts VII and VIII), promissory estoppel 

(Count VI) and civil conspiracy (Count XI). 

 On March 21, 1994, the defendants filed a motion to 

dismiss the plaintiffs' Interstate Commerce Act and Elkins Act 

claims or, in the alternative, to refer them to the Interstate 

Commerce Commission, and a motion for summary judgment on the 

plaintiffs' other claims. On July 1, 1994, the district court 

dismissed the federal transportation law claims, concluding that 

neither the Interstate Commerce Act nor the Elkins Act gave the 

plaintiffs a private right of action. Siegel Transfer, Inc. v. 

Carrier Express, Inc., 856 F. Supp. 990, 1002-05 (E.D. Pa. 1994). 

The court also granted summary judgment in the defendants' favor 

on the plaintiffs' remaining claims, with the exception of Count 
VI for promissory estoppel.6 On the antitrust and civil 

conspiracy claims, the court concluded that the plaintiffs failed 

to show that "two or more economic actors" conspired against 

them, applying the Supreme Court's decision in Copperweld Corp. 

v. Independence Tube Corp., 467 U.S. 752 (1984). 856 F. Supp. at 

995-1002, 1005, 1009. As to the contract and implied duty of 

good faith claims, the court rejected the plaintiffs' theory of 

breach, finding it contrary to the clear and unambiguous language 

of the parties' agreement. Id. at 1005-06, 1008-09. 

 On August 22, 1994, judgment was entered for the 

defendants, and on September 8, 1994, the plaintiffs filed an 

appeal. We will first address the federal antitrust issues this 

appeal raises, the federal transportation law issues second, and 

the state law questions third. 

II. 

 Summary judgment may present the district court with an 

opportunity to dispose of meritless cases and avoid wasteful 

trials. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1985). 

This is true even in antitrust cases "where motive and intent 

play leading roles, proof is largely in the hands of alleged 

conspirators, and hostile witnesses thicken the plot." Big Apple 

 

6. Finding genuine issues of disputed fact, the district 

court denied the defendants' motion for summary judgment as to 

the promissory estoppel claim. Siegel Transfer, Inc. v. Carrier 

Express, Inc., 856 F. Supp. 990, 1007-08 (E.D. Pa. 1994). On 

August 22, 1994, a stipulation and order dismissing this claim 

without prejudice was entered. 
BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1362 (3d 

Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1262 (1993), 

quoting Pollar v. Columbia Broadcasting System, Inc., 368 U.S. 

464, 473 (1962). 

 Summary judgment must be granted where no genuine issue 

of material fact exists for resolution at trial and the moving 

party is entitled to judgment as a matter of law. Fed. R. Civ. 

P. 56(c). On summary judgment, the moving party need not 

disprove the opposing party's claim, but does have the burden to 

show the absence of any genuine issues of material fact. 

Celotex, 477 U.S. at 323. If the movant meets this burden, then 

the opponent may not rest on allegations in pleadings, but must 

counter with specific facts which demonstrate that there exists a 

genuine issue for trial. Id. As in this case, when the 

nonmoving party will bear the burden of proof at trial, the 

moving party may meet its burden by showing that the nonmoving 

party has not offered evidence sufficient to establish the 

existence of an element essential to its case. Id. at 322. We 

remain mindful that in ruling on a motion for summary judgment, a 

court must assess the material facts against the proof required 

of the plaintiff on substantive issues. 

III. 

 Section 1 of the Sherman Act provides in pertinent part 

that "[e]very contract, combination in the form of trust or 

otherwise, or conspiracy, in restraint of trade or commerce . . . 

is declared to be illegal." 15 U.S.C. § 1. For a section 1 
claim under the Sherman Act, "a plaintiff must prove `concerted 

action,' a collective reference to the `contract . . . 

combination or conspiracy.'" Big Apple, 974 F.2d 1364, quoting

Bogosian v. Gulf Oil Corp., 561 F.2d 434, 445 (3d Cir. 1977), 

cert. denied, 434 U.S. 1086 (1978). "Unilateral action, no 

matter what its motivation, cannot violate [section] 1." Edward 

J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 110 (3d 

Cir. 1980), cert. denied, 451 U.S. 911 (1981). A "`unity of 

purpose or a common design and understanding or a meeting of the 

minds in an unlawful arrangement' must exist to trigger section 1 

liability." Copperweld, 467 U.S. at 771, quoting American 

Tobacco Co. v. United States, 328 U.S. 781, 810 (1946). Proof of 

concerted action requires evidence that two or more distinct 

entities agreed to take action against a plaintiff. Weiss v. 

York Hospital, 745 F.2d 786, 813 (3d Cir. 1984), cert. denied, 

470 U.S. 1060 (1985). 

 Here the plaintiffs assert that Bethlehem Steel, 

Bethran and Carrier Express, with several unnamed coconspirators, combined to eliminate the plaintiffs and stifle 

competition among motor contract carriers transporting steel 

products in the traffic lanes out of and back to Bethlehem 

Steel's Sparrow Point plant. While it is difficult to derive 

from the plaintiffs' pleadings and proof who participated in a 

conspiracy to achieve this goal, we understand them to contend 

that the companies in the Bethlehem Steel corporate family joined 

with Oak Management to terminate the Carrier Express contract 

with Siegel Transfer, and thereafter, enlisted assistance from 
Oak Management, Thomas Rediehs, Kermit Bryan, Carrier Express 

field agents, other motor carrier agents, and Rediehs Express to 

deny them the opportunity to haul products for Bethlehem Steel. 

The plaintiffs' evidence of concerted action with regard to 

contract termination is the meeting the representatives of 

Bethlehem Steel, Bethran, Carrier Express and Oak Management held 

on January 4, 1990 to inform Russell Siegel that Siegel 

Transfer's contract with Carrier Express would not be renewed; 

their evidence of a concerted refusal to deal are the posttermination contacts Oak Management had with Carrier Express 

agents to advise them that Siegel Transfer was no longer 

authorized to haul Carrier Express freight, and the directive 

from a Bethlehem Steel district transportation superintendent to 

a Glass Container agent not to use Siegel equipment to transport 

Bethlehem Steel goods. The plaintiffs also contend that the 5% 

refund Carrier Express paid to Bethlehem Steel is a per se

violation of the Sherman Act. 

 Before we evaluate the plaintiffs' evidence, we will 

address the threshold issue of conspiratorial capacity in order 

to determine who among the defendants and their alleged coconspirators, if anyone, could participate in an antitrust 

conspiracy. 

 Until the Supreme Court's decision in Copperweld Corp. 

v. Independence Tube Corp., 467 U.S. 752 (1984), related 

corporations were generally perceived as separate entities 

capable of concerted activity, a view which came to be known as 

the "intra-enterprise conspiracy" doctrine. Id. at 759. In 
Copperweld, however, the Supreme Court considered whether a 

parent company and its wholly owned subsidiary are legally 

capable of conspiring with one another under section 1 of the 

Sherman Act, and determined that they are not. Id. at 759-77. 

The fundamental question the Court confronted was whether an 

agreement between a parent and its wholly owned subsidiary 

represents the conduct of one economic actor or two. 

 In its opinion, the Court acknowledged that the Sherman 

Act contains a basic distinction between concerted and 

independent action, and discussed the reason why Congress chose 

to treat concerted behavior more strictly: 

 Concerted activity inherently is fraught with 

anticompetitive risk. It deprives the 

marketplace of the independent centers of 

decisionmaking that competition assumes and 

demands. In any conspiracy, two or more 

entities that previously pursued their own 

interests separately are combining to act as 

one for their common benefit. This not only 

reduces the diverse directions in which 

economic power is aimed but suddenly 

increases the economic power moving in one 

particular direction. 

Id. at 768-69. 

 The Court then noted that although "[n]othing in the 

literal meaning of [the] terms [of section 1] excludes 

coordinated conduct among officers or employees of the same

company", it is obvious that an "internal `agreement' to 

implement a single firm's policies does not raise the antitrust 

dangers that [section] 1 was designed to police." Id. at 769 

(emphasis in original). 
 Recognizing that section 1 is not violated by the 

internally coordinated conduct of a corporation and one of its 

unincorporated divisions because such conduct is essentially 

undertaken by one economic actor pursuing a single firm's 

interests and goals, the Court stated: 

 Although this Court has not previously 

addressed the question, there can be little 

doubt that the operations of a corporate 

enterprise organized into divisions must be 

judged as the conduct of a single actor. 

. . . A division within a corporate 

structure pursues the common interests of the 

whole rather than interests separate from 

those of the corporation itself . . . . 

Because coordination between a corporation 

and its division does not represent a sudden 

joining of two independent sources of 

economic power previously pursuing separate 

interests, it is not an activity that 

warrants § 1 scrutiny. 

Id. at 770-71 (footnote omitted). 

 Similarly, the Court concluded that given the control a 

parent wields over its wholly owned subsidiary, these parties 

always share a "unity of purpose or a common design", and thus, 

cannot engage in section 1 concerted activity: 

 A parent and its wholly owned subsidiary have 

a complete unity of interest. Their 

objectives are common, not disparate; their 

general corporate actions are guided or 

determined not by two separate corporate 

consciousnesses, but one. . . . If a parent 

and a wholly owned subsidiary do "agree" to a 

course of action, there is no sudden joining 

of economic resources that had previously 

served different interests, and there is no 

justification for § 1 scrutiny. . . . 

 [I]n reality a parent and a wholly owned 

subsidiary always have a "unity of purpose or 

a common design." They share a common 
purpose whether or not the parent keeps a 

tight rein over the subsidiary; the parent 

may assert full control at any moment if the 

subsidiary fails to act in the parent's best 

interests. 

Id. at 771-72 (footnote omitted)(emphasis in original). 

 Although the Court limited its holding to the case of a 

parent and wholly owned subsidiary, it nonetheless encouraged the 

courts to analyze the substance, not the form, of economic 

arrangements when faced with allegations of intra-corporate 

conspiracies: 

 The intra-enterprise conspiracy doctrine 

looks to the form of an enterprise's 

structure and ignores the reality. Antitrust 

liability should not depend on whether a 

corporate subunit is organized as an 

unincorporated division or a wholly owned 

subsidiary. A corporation has complete power 

to maintain a wholly owned subsidiary in 

either form. The economic, legal, or other 

considerations that lead corporate management 

to choose one structure over the other are 

not relevant to whether the enterprise's 

conduct seriously threatens competition. 

Id. at 772-73 (footnote omitted). 

 

IV. 

A. 

 We turn now to examine the evidence proffered by the 

plaintiffs in response to the defendants' motion for summary 

judgment and their supporting evidence. 

1. The Alleged Conspiracy Among the Bethlehem Steel 

 Companies 
 It is undisputed that, with the exception of the 

Railroad, the Bethlehem Steel companies were wholly owned by the 

parent company. Although Bethlehem Steel did not own .08% of the 

Railroad's stock, the difference between its 99.92% ownership and 

the 100% ownership in Copperweld is de minimus. See Satellite 

Financial Planning Corp. v. First Nat'l. Bank, 633 F. Supp. 386, 

395 (D. Del.), aff'd on reconsideration, 643 F. Supp. 449 (1986) 

(the de minimus difference between 99% plus ownership and 100% 

ownership does not diminish Copperweld's applicability).7 The 

plaintiffs have not shown why an absolute rule of 100% ownership 

must be applied in this case.8 

 Moreover, it is also beyond dispute that Bethlehem 

Steel, with 8,993 of the Railroad's 9,000 outstanding shares of 

 

7. The courts have not only applied Copperweld in cases 

involving de minimus deviations from 100% ownership, but have 

also extended its principles to situations where parental 

ownership was in the 80% to 91.9% range. Stephen Calkins, 

Copperweld in the Courts: The Road to Caribe, 63 Antitrust L.J. 

345, 351-41 (1995) (reviewing and commenting on the several 

categories of judicial treatment of Copperweld). 

8. The plaintiffs argue that the mere fact that Bethlehem 

Steel did not wholly own the Railroad requires that we reject 

Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), 

and instead, seek guidance from the Supreme Court's decision in 

United States v. Yellow Cab Co., 332 U.S. 218 (1947). In 

Copperweld, the Supreme Court suggested that Yellow Cab may stand 

"for a narrow rule based on the original illegality of the 

affiliation" between a parent and its subsidiary. 467 U.S. at 

762 n. 6. Even this "narrow rule" does not apply: the 

plaintiffs did not challenge Bethlehem Steel's original 

acquisition of Bethran and Carrier Express on antitrust grounds; 

nor do they challenge it here. We note, also, that the 

Interstate Commerce Commission's order exempting the original 

acquisition from regulation immunized it from the antitrust laws. 

See supra, page 5. 
stock, had complete control over the Railroad,9 as well as over 

Bethran and Carrier Express. Hence, these companies were, in 

substance, one economic unit, incapable of an antitrust 

conspiracy under Copperweld. See Advanced Health-Care Services, 

Inc. v. Radford Community Hosp., 910 F.2d 139, 146 (4th Cir. 

1990) (under Copperweld, two subsidiaries wholly owned by the 

same parent are legally incapable of conspiring with one another 

for purposes of section 1); Century Oil Tool, Inc. v. Production 

Specialties Inc., 737 F.2d 1316 (5th Cir. 1984) (under 

Copperweld, separate corporations commonly owned by three men, 

two of whom owned 30% of each corporation and one of whom owned 

the remaining 40% of each corporation, were incapable of an 

antitrust conspiracy). 

 The plaintiffs contend, without citation to authority, 

that the Interstate Commerce Act does not legally permit a parent 

company shipper to control the affairs of a motor carrier 

subsidiary and requires that a parent shipper and its carrier 

subsidiary conduct their affairs independently of each other. 

The Act, however, neither prohibits such control nor requires 

such independence. To the contrary, the Act specifically permits 

a shipper to acquire control of a motor carrier in appropriate 

 

9. The defendants correctly point out that Bethlehem Steel 

ultimately determined who held the seven shares it did not own. 

Since the Railroad was a Pennsylvania corporation, under 

Pennsylvania's corporation law, Bethlehem Steel, as the 

Railroad's controlling shareholder, selected the Railroad's 

directors. The directors, in turn, appointed the Railroad's 

officers, in whose names the seven shares were issued. 15 Pa. 

C.S.A. §§ 1502(a)(16), 1721, 1725(a). 
circumstances, 49 U.S.C. § 11343, and in this case, the 

Interstate Commerce Commission sanctioned such control when it 

permitted Bethlehem Steel and the Railroad to acquire Bethran and 

Carrier Express.10

 We thus hold that the companies in the Bethlehem Steel 

corporate family lacked the capacity to conspire with one another 

under section 1 of the Sherman Act. 

2. The Alleged Conspiracy Among the Bethlehem Steel 

 Companies, Oak Management, Rediehs, Bryan and Carrier 

 Express Agents 

 The plaintiffs also assert that a number of unnamed coconspirators joined with one another and with the Bethlehem Steel 

companies in various combinations to restrain trade. We start 

with allegations which suggest that Thomas Rediehs, as an officer 

of Oak Management, and Kermit Bryan, as one of its employees, 

conspired with each other or with the company. In Copperweld the 

Court made clear that section 1 does not capture coordinated 

activity among the employees and officers of the same firm or 

police "internal agreements" between a corporation and these 

 

10. The plaintiffs further maintain that Copperweld is 

rendered inapplicable by a commitment in the petition Bethlehem 

Steel and the Railroad filed with the Commission to operate 

Bethran and Carrier Express separately, and by the Commission's 

order granting the petition on the "specifically-stated 

condition" of separate operation. Not only is the plaintiffs' 

characterization of the petition and the Commission's order 

plainly incorrect, but more importantly, under Copperweld, the 

control a parent corporation exercises over its subsidiary is 

relevant, not whether a parent operates the subsidiary 

separately. 
individuals. Copperweld, 467 U.S. at 769; Tunis Bros. Co. v. 

Ford Motor Co., 763 F.2d 1482, 1496 & n.21 (3d Cir. 1985) ("A 

corporation can act only through its agents, thus the acts of 

corporate directors, officers, and employees on behalf of the 

corporation are the acts of the corporation and a corporation 

cannot conspire with itself."), vacated and remanded, 475 U.S. 

1105 (1986), reinstated, 823 F.2d 49 (1987), cert. denied, 484 

U.S. 1060 (1988). 

 We turn next to the plaintiffs' theory that a 

conspiracy existed among Carrier Express, its agents in the 

field, and Oak Management, and must determine whether a corporate 

principal and its agents should be treated as one enterprise or 

two. On another occasion, we were faced with a similar inquiry. 

In Weiss v. York Hospital, 745 F.2d 786 (3d Cir. 1984), cert.

denied, 470 U.S. 1060 (1985), an osteopathic physician brought, 

both individually and as a class representative, an antitrust 

action under, inter alia, section 1 of the Sherman Act against 

the York Hospital, the York Medical and Dental Staff and ten 

individual physicians, alleging, inter alia, that the defendants 

had conspired to deny him staff privileges. Following trial, the 

jury found that only the staff had conspired against the 

plaintiff class. Upholding the jury's verdict in this regard, we 

held that the medical staff, comprised of individual, competing 

doctors, satisfied the plurality requirement of section 1, but 

that the staff as an entity, "operat[ing] as an officer of a 

corporation . . . [and having] no interest in competition with 
the hospital", could not conspire with the hospital when making a 

staff privilege decision. Id. at 817. 

 In Pink Supply Corp. v. Hiebert, Inc., 788 F.2d 1313 

(8th Cir. 1986), the Court of Appeals for the Eighth Circuit held 

that certain types of corporate agents, even if separately 

incorporated, are not capable of conspiring with their principal 

where their relationship necessarily involves a unity of economic 

interest and design. There, a dealer in office furniture 

manufactured by Hiebert whose dealership had been terminated 

commenced a section 1 antitrust action against Hiebert and four 

of its sales representatives, alleging a price-fixing and boycott 

conspiracy. At all relevant times, the sales representatives 

served as commissioned sales agents for Hiebert, generating 

business for the manufacturer by persuading potential customers 

to select the Hiebert line. They did not set prices, arrange 

terms of sales or accept orders, and did not compete in any sense 

with Hiebert or its dealers. Viewing the sales representatives 

as corporate agents who performed the tasks of employees and 

noting that they were an integral part of the corporate entity, 

the court concluded that Hiebert and the sales agents were so 

closely intertwined in economic interest and purpose as to amount 

to a unified economic consciousness incapable of an antitrust 

conspiracy. Id. at 1316. 

 When we examine the economic substance of the 

affiliation between Carrier Express and its agents in the field, 

as Copperweld instructs we must, we find a similar unity of 

interest and purpose. The agents, whose only function was to 
make arrangements for the transport of Carrier Express freight 

with authorized carriers, did not compete with Carrier Express. 

As the conduit between Carrier Express and those with trucking 

equipment and drivers, the agents were an essential part of 

Carrier Express operations. Because the agents received a 

commission from Carrier Express based on the loads they arranged 

for the company to transport, the parties' economic interests 

were entirely congruent. In our view, therefore, Carrier Express 

and its agents represented a single enterprise. 

 We reach the same conclusion when we consider the 

relationship between Carrier Express and Oak Management. As 

Carrier Express did not have employees of its own, it used Oak 

Management to handle its day-to-day operations. Contractually 

obligated to manage Carrier Express affairs, Oak Management was, 

in effect, an inseparable part of Carrier Express' structure. 

Since its fee was a percentage of Carrier Express' revenue, Oak 

Management's economic well being was directly tied to Carrier 

Express' success. Oak Management did not compete with Carrier 

Express; instead, it stood to gain or lose from overseeing 

Carrier Express operations in an economical and efficient manner, 

as did Carrier Express itself. Hence, Carrier Express and Oak 

Management constituted one economic unit. Thus we hold that Oak 

Management and the Carrier Express agents could not conspire with 

Carrier Express or with each other under section 1, or for that 

matter, with Bethran or Bethlehem Steel. 

 B. 
 Our inquiry into the possibility of a conspiracy 

between Carrier Express and Oak Management, however, does not end 

here. The plaintiffs argue that even if Carrier Express and Oak 

Management were part of a single enterprise, they were capable of 

conspiring to terminate Siegel Transfer's contract with Carrier 

Express because Oak Management's representatives, Thomas Rediehs 

and Kermit Bryan, each had an interest in Rediehs Express.11 The 

plaintiffs further maintain that Rediehs and Bryan were motivated 

to agree to the contract's termination so that Oak Management 

could replace Russell Siegel as Carrier Express' Baltimore agent. 

 These arguments call into question the exception to the 

general rule that a corporation cannot conspire with its 

employees, officers or agents that we and other courts of appeal 

have recognized.12 In Johnston v. Baker, 445 F.2d 424, 427 (3d 

Cir. 1971), we concluded that a corporation can conspire with its 

agent where the agent acts for "personal reasons."13 Although 

 

11. The plaintiffs do not allege that Rediehs Express 

itself, through Thomas Rediehs, Kermit Bryan or any other person, 

participated in this alleged restraint. They contend only that 

by virtue of Rediehs' and Bryan's respective interests in Rediehs 

Express, Oak Management was a separate entity with separate 

interests, capable of conspiring with Carrier Express. 

12. In Copperweld, the Supreme Court observed without 

comment that "many courts have created an exception for corporate 

officers acting on their own behalf." 467 U.S. at 769-70 n.15, 

citing, inter alia, Johnston v. Baker, 445 F.2d 424 (3d Cir. 

1971). 

13. In Weiss v. York Hospital, 745 F.2d 786 (3d Cir. 1984), 

cert. denied, 470 U.S. 1060 (1985), we noted the exception but 

did not have occasion to discuss it. Id. at n.43. We again 

noted the exception in Tunis Bros. Co. v. Ford Motor Co., 763 

F.2d 1482, 1496-97 (3d Cir. 1985), vacated and remanded, 475 U.S. 

1105 (1986), reinstated, 823 F.2d 49 (1987), cert. denied, 484 
the Court of Appeals for the Eighth Circuit, in Morton Bldgs. of 

Neb. Inc. v. Morton Bldgs., Inc., 531 F.2d 910, 917 (8th Cir. 

1976), held that the exception arises "when the officers or 

agents were, at the time of the conspiracy, acting beyond the 

scope of their authority or for their own benefit", the Court of 

Appeals for the Fourth Circuit, in Greenville Pub. Co. v. Daily 

Reflector, Inc., 496 F.2d 391, 399 (4th Cir. 1974), determined 

that the exception "may be justified when the officer has an 

independent personal stake in achieving the corporation's illegal 

objective." 

 Over time, however, the exception expanded and came 

under criticism for threatening to swallow the general rule. 

Oksanen v. Page Memorial Hosp., 945 F.2d 696, 705 (4th Cir. 

1991), cert. denied, 502 U.S. 1074 (1992). See Nurse Midwifery 

Assoc. v. Hibbett, 918 F.2d 605, 613 (6th Cir. 1990), modified by

927 F.2d 904, cert. denied, 502 U.S. 952 (1991) (declining to 

adopt the "independent personal stake" exception for substantial 

policy reasons); 7 PHILLIP E. AREEDA, ANTITRUST LAW, ¶ 1471d&g 

(1986). Accordingly, our sister courts refined the exception to 

insure that it is appropriately applied. In Pink Supply Corp. v. 

Hiebert, Inc., for example, when the plaintiff raised the 

exception, contending that one of Hiebert's sales representatives 

recommended that its dealership be terminated so as to control 

dealer pricing and bolster his own credibility, the Eighth 

(..continued) 

U.S. 1060 (1988), but because the factual issues relating to the 

exception were unresolved, we remanded the case to the district 

court for trial without analyzing the exception further. 
Circuit refused to apply the exception, finding an absence of 

evidence in the record that the representative secured a direct 

financial gain from the plaintiff's elimination from the Hiebert 

organization: 

 Our decisions have required more than mere 

speculation regarding the benefit to an agent 

to be realized from participation in a 

conspiracy with the principal. . . . 

Hiebert's sales representatives derived no 

financial benefit from the elimination of 

Pink Supply from the Hiebert organization. 

We construe "for the agent's own benefit" to 

mean at least an economic stake in the gain 

to be realized from the anticompetitive 

object of the conspiracy. 

788 F.2d at 1318 (footnote omitted). 

 In Oksanen v. Page Memorial Hosp., an antitrust action 

arising out of the revocation of medical staff privileges, the 

plaintiff argued that even if a hospital and its medical staff 

were considered part of the same enterprise and incapable of 

conspiring, the exception applied because the individual doctors 

on the staff had personal stakes in the outcome of the peer 

review process. Addressing the plaintiff's argument, the Fourth 

Circuit expressly declined to extend the exception beyond the 

rationale underlying its prior decision in Greenville, where the 

president of the defendant company had a financial interest in a 

firm that competed with the plaintiff and the power to control 

the defendant's decisions. Oksanen, 945 F.2d at 705. The court 

of appeals thus examined whether the staff included members who 

directly benefitted from the plaintiff's elimination as a 

competitor, and whether the staff caused the hospital to engage 
in the alleged restraint. Id. at 705-06. Finding that neither 

of these criteria was met, the court concluded that the general 

rule, and not the exception, controlled. Id.14 

 In our view, in order for the concept of a conspiracy 

between a principal and an agent to apply in the antitrust 

context, the exception to the general rule should arise only 

where an agent acts to further his own economic interest in a 

marketplace actor which benefits from the alleged restraint, and 

 

14. In his antitrust treatise, Professor Phillip E. Areeda 

opines that the exception should, as a general proposition, only 

capture an employee's pursuit of an outside interest which 

competes with the plaintiff. To do otherwise, Professor Areeda 

maintains, would be unwise given the varied personal interests 

that may motivate employees to act for themselves. 7 PHILLIP E. 

AREEDA, ANTITRUST LAW § 1471e2 & n.27 (1986). 

 Professor Areeda also states that if an employee cannot 

cause the employer to engage in the restraint, an independent 

interest on his part is largely irrelevant to an antitrust 

analysis: 

 [T]he employee's "personal stake" bears on 

antitrust policy, if at all, only if it 

brings about an alleged restraint by his 

employer that would not otherwise have 

occurred. The employer's self-interest may 

have been insufficient to induce the alleged 

restraint in the absence of the "conspiring" 

employee's independent interest. The 

employee's independent interest is simply 

irrelevant to an employer act that would have 

occurred without regard to it. 

 Thus, the premise for finding an 

employer-employee conspiracy is that an 

employee's personal stake causes the employer 

to adopt a restraint that would not otherwise 

have been adopted by the employer in his own 

self-interest. 

Id. at § 1471d1. 
causes his principal to take the anticompetitive actions about 

which the plaintiff complains. In this way, the exception 

captures agreements that bring together the economic power of 

actors which were previously pursuing divergent interests and 

goals, the type of activity that section 1 was intended to 

oversee. Copperweld, 467 U.S. at 752. 

 Our review of the record confirms that the exception as 

we have defined it does not apply in this case. With regard to 

the respective interests that Rediehs and Bryan had in Rediehs 

Express, the plaintiffs did not offer any evidence to show that 

Rediehs Express competed with Siegel Transfer or that Rediehs 

Express would benefit from Siegel Transfer's elimination from the 

Sparrows Point market. To the contrary, the defendants presented 

evidence which established that Rediehs Express did not haul 

steel products from Sparrows Point and that the tonnage of 

freight it received from Bethlehem Steel out of Burns Harbor 

declined following termination of Siegel Transfer's contract with 

Carrier Express. Nor did the plaintiffs proffer any evidence to 

demonstrate that Oak Management, acting through Rediehs and 

Bryan, caused Carrier Express to terminate its contract with 

Siegel Transfer. Again, the record is to the contrary, showing 

that James Matthews, Carrier Express' Vice President, possessed 

and retained the authority to decide such matters, and indeed 

exercised that authority in favor of contract termination. At 
most, Oak Management was asked to give Carrier Express advice.15 

The giving of advice, however, when requested by the decision 

maker, is not equivalent to making the decision. Pennsylvania 

Dental Ass'n v. Medical Serv. Ass'n., 745 F.2d 248, 259 (3d Cir. 

1984), cert. denied, 471 U.S. 1016 (1985). 

 We also reject the plaintiffs' alternative argument 

regarding Rediehs' and Bryan's purported desire for Carrier 

Express' Baltimore agency. First, the record conclusively 

establishes that neither Rediehs nor Bryan sought the agency, and 

that Rediehs only reluctantly accepted it on Oak Management's 

behalf at Carrier Express' request. Second, Oak Management had 

nothing to gain, and indeed did not gain, from Siegel's ouster as 

a Carrier Express agent. Third, any losses that Siegel 

personally may have sustained are not relevant to the plaintiffs' 

case. Finally, Siegel's termination as a Carrier Express agent 

was a natural consequence of contract termination, an event that 

Oak Management did not cause or control. 

V. 

 When we apply our conclusions regarding conspiratorial 

capacity to the evidence, and evaluate the undisputed facts of 

record, we find that the plaintiffs have failed to offer proof 

sufficient to establish the element of concerted action. With 

respect to their allegations that Bethlehem Steel, Bethran, 

 

15. The record shows that Rediehs advised Carrier Express 

not to terminate its contract with Siegel Transfer, and that 

Bryan did not offer any advice one way or the other. 
Carrier Express and Oak Management conspired on January 4, 1990 

to end Siegel Transfer's contract with Carrier Express, we 

conclude that these companies constituted one economic unit which 

met to announce Carrier Express' decision to terminate the 

agreement. With regard to the plaintiffs' contention that Oak 

Management's instructions to Carrier Express' agents not to make 

transportation arrangements with Siegel Transfer constitute 

evidence of a conspiracy to exclude Siegel Transfer from the 

Sparrows Point market, we hold that this activity was undertaken 

by a single enterprise in order to implement the contract's 

termination. 

 As to the plaintiffs' complaint that the defendants 

combined with other parties to refuse Siegel Transfer the 

opportunity to haul freight for Bethlehem Steel, we find nothing 

more in the record than a unilateral, and under the antitrust 

laws, lawful choice on the part of one of Bethlehem Steel's 

transportation superintendents not to use Siegel equipment to 

transport products out of the company's Sparrow Point mill. 

Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761 

(1984) (A buyer or a seller "generally has the right to deal, or 

refuse to deal, with whomever it likes, as long as it does so 

independently."). In addition, the record is uncontroverted that 

Bethlehem Steel, through other transportation managers, did 

indeed permit carriers with whom the company had direct business 

ties to use Siegel equipment to haul Bethlehem Steel freight 

after Carrier Express' termination of the Siegel Transfer 

contract. Further, although the plaintiffs suggested in their 
brief that Rediehs Express assisted Carrier Express in a 

"horizontal restraint", they did not present a factual basis for 

this belief. As we have stated, "[l]egal memoranda and oral 

argument are not evidence and cannot by themselves create a 

factual dispute sufficient to defeat a summary judgment motion." 

Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 

1109 (3d Cir. 1985), cert. denied, 475 U.S. 1013 (1986). 

 Lastly, we conclude that the plaintiffs' contention 

that the refund contract between Carrier Express and Bethlehem 

Steel represents a per se violation of section 1 of the Sherman 

Act lacks merit. Because the only parties to the contract were 

members of the Bethlehem Steel corporate family, the requisite 

element of concerted action is missing. Moreover, we do not find 

any support for the plaintiffs' theory that a per se violation of 

the antitrust laws can be stated merely by alleging that an 

otherwise lawful arrangement is contrary to the "pro-competitive" 

polices of the Interstate Commerce Act. 

VI. 

 In Count XI of the amended complaint, the plaintiffs 

claim that the defendants violated the Interstate Commerce Act 

and the Elkins Act. According to the plaintiffs, Siegel 

Transfer's contract with Carrier Express was an unlawful 

"brokerage" agreement which improperly provided a "commission" to 

Carrier Express and a "rebate" to Bethlehem Steel; the refund 

agreement between Carrier Express and Bethlehem Steel amounted to 

another unlawful "rebate"; and Bethlehem Steel impermissibly 
owned and controlled the operations of Bethran and Carrier 

Express. 

 Congress gave the Interstate Commerce Commission 

primary responsibility to enforce the Interstate Commerce Act, 

authorizing it to investigate infractions, compel compliance 

where violations have occurred, bring civil actions to enjoin 

certain violations, and enforce its orders and regulations. 49 

U.S.C. § 11702. The Act also authorizes the Attorney General to 

enforce the Act upon the Commission's request, and to bring civil 

actions against common carriers for discriminatory practices. 49 

U.S.C. § 11703. 

 In only a limited number of sections of the Act does 

Congress allow a private party to file suit in a court of law.16

The plaintiffs do not cite to any of these sections in Count XI, 

nor do they apply in this case. 

 The other private action currently permitted under the 

Act involves "undercharge" claims, the allegation by a common 

carrier that it received a lower rate from a shipper than that 

filed with the Commission. See, e.g., Maislin Industries, U.S. 

 

16. Section 11704 permits an interested person to enjoin an 

abandonment of service; section 11705 provides a private right of 

action to one injured in specified ways by certain carriers; 

section 11707 permits a private action against a common carrier 

for liability under receipts and bills of lading; and section 

11708 allows a person to sue to enforce the Act's provisions 

relating to the issuance of operating certificates and permits. 

49 U.S.C. §§ 11704-11705, 11707-11708. 

 We note also that the plaintiffs did not raise the 

question of an implied right of action under either the 

Interstate Commerce Act or the Elkins Act. 
v. Primary Steel, 497 U.S. 116 (1990). Because contract carriers 

are exempt from the tariff filing and uniform rate requirements 

of the Act, Central and Southern Motor Freight Tariff Assoc., 

Inc. v. United States, 757 F.2d 301 (D.C. Cir.), cert. denied, 

474 U.S. 1019 (1985), there is no basis for an undercharge claim 

in this, a motor contract carrier case. 

 The Elkins Act, the other statute upon which the 

plaintiffs rely, does not regulate motor contract carriers or 

provide for private remedies. 49 U.S.C. §§ 11901-11903, 11915-

11916. 

 We therefore find that the district court correctly 

dismissed the plaintiffs' federal transportation law claims for 

lack of subject matter jurisdiction because neither the 

Interstate Commerce Act nor the Elkins Act grants the plaintiffs 

the right to pursue their allegations in a federal court. 

Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 

(1986) (the existence of a private cause of action is a 

jurisdictional requirement). 

 

 VII. 

 We turn finally to the plaintiffs' state law claims. 

Because the plaintiffs failed to establish the antitrust claim 

they brought under federal law, their Maryland Antitrust Act 

claim also fails. Natural Design, Inc. v. Rouse Co., 302 Md. 47, 

53, 485 A.2d 663, 666 (1984) (the Maryland courts follow the 

federal courts' interpretations of section 1 of the Sherman Act 

when evaluating state antitrust claims). Likewise, the 
plaintiffs' civil conspiracy claim is deficient for failing to 

establish that the defendants engaged in an unlawful conspiracy. 

Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A.2d 

466, 472 (1979) (under Pennsylvania law, the essential elements 

of civil conspiracy include malice and proof of a combination or 

agreement by two or more persons to do an unlawful act or to use 

unlawful means to accomplish an otherwise lawful act).17 

 In their breach of contract claim, the plaintiffs 

contend that Carrier Express' January 4, 1990 notice of contract 

termination was ineffective because the contract required that 

notice be given by December 4, thirty days before the contract's 

January 4 renewal date. The defendants argue that the contract 

renewed from year to year, with resulting yearly obligations, but 

that the year term could be cut short at any time by either party 

upon proper notice.18 

 

17. The district court analyzed the civil conspiracy claim 

under Pennsylvania law. On appeal, both parties applied 

Pennsylvania law to this claim. 

18. The contract's termination provision provided: 

 (13) This AGREEMENT is to become effective 

January 4, 1986 and shall remain in effect 

for a period of three yrs from such date, and 

from year to year thereafter, subject to the 

right of either party hereto to cancel or 

terminate the AGREEMENT at any time upon not 

less than thirty (30) days written notice of 

one party to the other. (emphasis in 

original). 
 In Maryland,19 the courts interpret written contracts 

that are clear and unambiguous. Rothman v. Silver, 245 Md. 292, 

296, 226 A.2d 308, 309 (1967). The cardinal rule in the 

interpretation of contracts is that effect must be given to the 

intention of the parties, Kasten Constr. Co., Inc. v. Rod 

Enterprises, Inc., 268 Md. 318, 328, 301 A.2d 12, 18 (1973), and 

to all provisions of the agreement. Rothman, 245 Md. at 296, 226 

A.2d at 309. When the language of a contract is clear, the true 

test of what is meant is not what one of the parties to the 

contract understood it to mean, but what a reasonable person in 

the position of the parties would have thought it meant. Kasten 

Constr., 268 Md. at 329, 301 A.2d at 18. 

 In our view, the plaintiffs' interpretation of the 

contract is strained, ignores the "at any time" termination 

language and adds a notice period that the contract did not have. 

The defendants' interpretation, on the other hand, is reasonable 

and gives meaning to all of the contract's provisions. We 

therefore find that the district court did not err in holding 

that the defendants' January 4, 1990 notice of termination 

complied with the terms of the parties' contract. 

 The plaintiffs also argue that Carrier Express failed 

to honor the thirty-day notice period. The record and the 

contract itself belie this argument. On January 4, 5 and 12, 

1990, Carrier Express offered Siegel Transfer more than 600,000 

 

19. The district court determined that Maryland law applies 

to the plaintiffs' contract claims. Neither party disagreed with 

the court's choice of law on appeal. 
pounds of freight to transport. While the plaintiffs contend 

that arrangements for transport of this freight were made prior 

to January 1, 1990, the fact remains that Carrier Express' offer 

and Siegel Transfer's transport occurred in January 1990. The 

plaintiffs also assert that the parties' agreement required a 

minimum of twenty-five loads a day. To the contrary, the 

contract expressly obligated Carrier Express to offer "a minimum 

quantity of 30,000 pounds per year for each year this Agreement 

remains in effect."20 

 Finally, we agree with the district court that the 

plaintiffs' claim for breach of the implied duty of good faith 

must fail because the claim amounts to no more than an 

impermissible attempt on their part to alter the termination 

provision of the contract. Parker v. Columbia Bank, 91 Md. App. 

346, 365, 604 A.2d 521, 531 (1992) (the duty of good faith and 

fair dealing is an implied term, but this duty "simply prohibits 

one party to a contract from acting in such a manner as to 

prevent the party from performing his obligations . . . ."). 

VIII. 

 For the foregoing reasons, we will affirm the district 

court's grant of summary judgment on Counts I, II, III, IV, VII, 

 

20. The plaintiffs' additional claim that the contract was 

not a "trip lease" and their discussion regarding the necessary 

elements of a motor carrier agreement under the Interstate 

Commerce Act are not relevant, and do not alter the fact that the 

defendants properly exercised the termination right they had 

under the contract. 
VIII and XI in the defendants' favor, and the court's dismissal 

of the federal claims in Count XI of the plaintiffs' Amended 

Complaint.