                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             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Precedential or Non-Precedential: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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                 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 co-

conspirators, 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 post-

termination 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 co-

conspirators, 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 co-

conspirators 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.
