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August 14, 1963


The opinion of the court was delivered by: DUSEN

This suit arises from the contention of plaintiff that defendant has conspired, in violation of the antitrust laws, to enter into certain LC and COSS contracts, which are alleged to be, per se, violations of those laws, and, as part of that conspiracy, has terminated certain contracts between the parties to this suit as described below.

On or before May 31, 1963, defendant notified plaintiff that it was terminating these contracts as of July 31, 1963 (P-6). By letter of July 13, 1963, plaintiff's attorneys notified defendant that 'We firmly believe that * * * Mr. Hutchinson would be entitled to an immediate injunction restraining the company from terminating his bulk plant contractor agreements pending the disposition of Mr. Hutchinson's claims under the antitrust laws' (P-29). Late on the afternoon of July 31, plaintiff notified defendant that he was instituting a suit requesting such an injunction (P-28) and on the afternoon of August 2 this suit and Motion were filed. Testimony was taken on August 7, 8, 9 and 12. No requests for findings of fact or conclusions of law have been filed.

 Bulk Plant Contract

 Pursuant to a contract dated June 1, 1959, plaintiff became a Bulk Plant Contractor of defendant at Allentown, Pa., with provision that he should receive a commission per gallon of liquid petroleum product delivered to defendant's customers in the Allentown area (see P-4). At the same time, the parties executed a contract under which defendant agreed to pay plaintiff $ 150. per month for 'transporting, installing, relocating, removing, repairing, and maintaining equipment and facilities loaned by American to its dealers and customers' in the Allentown area. These contracts were terminable by either party on ten days' notice (see paragraphs 9 & 11 to the contracts marked P-4). Supplements to these contracts have been marked as P-4A to P-4H and P-16.

 When plaintiff entered into this Bulk Plant Contract, thereby undertaking to service certain retail gasoline service stations of defendant in the Allentown area, 15 such dealer stations already selling gasoline and related products for defendant were assigned to him (see testimony of Mr. Hoffman). On July 1, 1963, he was still servicing 15 retail stations of defendant, 5 of his own dealer stations, *fn1" and 6 stations operated by defendant (N.T. 13-14).

 He also serviced commercial accounts from the Allentown Bulk Plant, but many of such accounts had been turned over to him by defendant on June 1, 1959, and he has failed to sustain his burden of showing which, if any, of such accounts he secured since that date. It is also noted that plaintiff has not shown that he made prompt efforts after June 1, 1963, to secure a position as a distributor of the petroleum products of the other oil companies operating in this area.

 Since plaintiff conceded that he had suppliers of fuel oil and kerosene at the time of the hearings on this Motion, there is no need to discuss any irreparable harm to him through loss of defendant as one of his suppliers of fuel oil. There has been no showing that plaintiff cannot secure the fair value of such of his trucks and equipment as may not be needed for his fuel oil and kerosene business. See P-24 and depreciation schedule attached to P-14. Defendant has agreed to pay plaintiff for all petroleum products on hand at the Bulk Plant as of 7/31/63.

 Furthermore, the evidence discloses that defendant terminated this contract because the operation of its Allentown Bulk Plant by its own employee, as opposed to the operation by an independent contractor such as plaintiff under this contract, would save defendant approximately $ 30,000. per year (testimony of Aschemeyer, e.g. N.T. 329). *fn2"

 TBA Constract

 On February 28, 1961, plaintiff entered into a TBA Jobber Contract (P-3) providing for defendant's selling 'Tires, Tubes, Batteries, and Automobile Accessories' to plaintiff, which he resold to defendant's operators of service stations. This replaced a similar TBA Jobber Contract under which sales had been made of a much more limited line of accessories prior to 1961. Plaintiff has failed to sustain his burden of showing any immediate and irreparable harm to him as the result of the cancellation of this contract. Defendant will pay to plaintiff the cost of all inventory on hand under this contract as of 7/31/63 (approximately $ 15,000.). Plaintiff has failed to show that his efforts have resulted in any increased TBA business in the Allentown area. The year before plaintiff secured his first TBA contract with defendant, the gross amount of defendant's sales in this area was $ 28,990. (P-23). All defendant's customers were turned over to plaintiff. Plaintiff's gross purchases from defendant in this business were as follows (P-23): 1960 About $ 23,327.00 1961 About $ 26,948.00


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