automobile manufacturer has failed to act in good faith in performing or complying with any of the provisions of his franchise. Section 1221(e) defines 'good faith' as:
'* * * the duty of each party to any franchise, and all officers, employees, or agents thereof to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party: Provided, That recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith.'
In Globe Motors, Inc., v. Studebaker-Packard Corporation, 328 F.2d 645 (3d. Cir. 1964) the Court stated:
'The statute did not provide a new remedy for breach of contract but created a new cause of action. An indispensable element of the statutory cause of action is not the lack of good faith in the ordinary sense but a lack of good faith in which 'coercion, intimidation or threats' thereof are at least implicit.'
Paragraph 6 of the complaint, alleging withholding of deliveries of vehicles, and Paragraph 7 of the complaint, alleging the cancellation of the franchise, are such assertions that are covered by the 'good faith' provision. Sufficient proof is not presented to the Court as to the factual issue of 'good faith' demonstrated by the parties in reference to these matters.
As to Paragraph 8 of the complaint, alleging refusal by defendants to reimburse plaintiff for remaining parts in stock, a conflicting issue arises as to whether a written demand for reimbursement was made. Plaintiff's deposition states that he believed a written demand was made although the letter from plaintiff's attorney stated that the demand was 'apparently verbal'. What position plaintiff will assert at time of trial is therefore not clear. If no written demand is produced, the Trial Judge may dismiss the complaint since § 23 of the Dealer-Franchise Agreement expressly states a written demand must be made.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall not be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that a genuine issue exists as to any material fact. Therefore, the allegations asserted in Paragraphs 6, 7 and 8 are not proper ones to be disposed of by summary judgment at this time. Further disposition of the same is for the determination of the Trial Judge.
Plaintiff has raised the question of pendant jurisdiction in his brief and at the time of argument, but did not allege the same in his complaint. Plaintiff's complaint alleged only a claim under the Automobile Dealers Franchise Act; no other claim is asserted under common law or any state statute. Thus, the Court does not find it necessary to discuss the doctrine of pendant jurisdiction and its applicability hereto.
And now, this eighteenth day of March, 1964, it is ordered that defendants' motion for summary judgment with respect to the claim alleged in Paragraph 5 of the plaintiff's complaint be and the same is hereby granted.
It is further ordered that defendants' motion for summary judgment with respect to the claims alleged in Paragraphs 6, 7 and 8 of the plaintiff's complaint be and the same is hereby denied.
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