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July 31, 1964

TEXACO, INC., Humble Oil & Refining Company, Sinclair Refining Company, and Gulf Oil Corporation
Pasquale FIUMARA

The opinion of the court was delivered by: HIGGINBOTHAM

Plaintiffs request this Court to enjoin Pasquale Fiumara and his representatives from prosecuting any claim, cause of action, question or fact which was or could have been litigated in two prior actions decided by this Court. (Civil Action Nos. 29671, and 33296.)

Since 'a motion for injunction pendente lite is addressed to the judicial discretion of the District Court,' *fn1" it is necessary to note in some detail the unique facts and changes in law which have been considered in exercising my judicial discretion to at this stage deny the relief requested.

 Plaintiffs are four major oil-gasoline companies doing substantial business in Pennsylvania and are incorporated in states other than Pennsylvania. Defendant, Pasquale Fiumara, operates a gasoline service station at 6008 Haverford Avenue, Philadelphia, Pennsylvania.

 From 1949 to 1961, defendant, Pasquale Fiumara, had a franchise for the sale of Sinclair's gas and related products. He claims that by reason of 'ten years of hard work' he was able to build up 'a profitable business from the sale of 76,987 gallons of Sinclair gasoline in 1950, to 421,353 gallons of Sinclair gasoline sold in 1958'. *fn2" He attributes this prior success to his ability to sell gasoline from December 1949 to February 8, 1959 'at the prevailing prices in the free and equal market.' *fn3"

 On January 22, 1959, plaintiff-Sinclair filed a complaint in equity in Common Pleas Court No. 5, Philadelphia County, December Term, 1958, No. 1988, requesting a preliminary injunction against Fiumara by reason of his sale of Sinclair products at prices below Sinclair's established minimum resale prices. Sinclair obtained an injunction against plaintiff from advertising, offering for sale or selling directly or indirectly these products below Sinclair's designated minimum retail prices which are referred to as 'fair trade prices.' Fiumara had never executed any fair trade agreement with Sinclair.

 On February 9, 1959, the Common Pleas Court entered a preliminary injunction and made it permanent on March 28, 1960. Fiumara appealed to the Pennsylvania Supreme Court which dissolved the injunction and ordered the record remanded to the Common Pleas Court for a further hearing so that both parties could introduce additional evidence. After there had been a date set for a further hearing in compliance with the Supreme Court's opinion, Sinclair 'refused to proceed with the trial which * * * Sinclair of its own accord * * * had initiated and instead asked the Common Pleas Court to dismiss the proceedings.' *fn4" Dismissal was granted.

 On May 25, 1961, Fiumara filed an antitrust suit seeking treble damages for an alleged conspiracy to fix prices of gasoline at retail in the Philadelphia area against the present plaintiffs: Sinclair Refining Co., Texaco, Inc., Humble Oil & Refining Co., Gulf Oil Corporation and also Associated Petroleum Industries of Pennsylvania.

 On January 16, 1962, Judge Van Dusen granted summary judgment as to Associated Petroleum Industries of Pennsylvania, and on May 4, 1962, granted a motion for summary judgment in favor of the other defendants. (204 F.Supp. 544 (E.D.Pa.1962).)

 On December 20, 1962, the Court of Appeals affirmed per curiam Judge Van Dusen's decision, 310 F.2d 737 (3rd Cir. 1962), and the United States Supreme Court denied Fiumara's petition for a writ of certiorari. (372 U.S. 976, 83 S. Ct. 1109, 10 L. Ed. 2d 142 (1963).)

 On July 11, 1963, Fiumara filed a complaint in the Court of Common Pleas for Philadelphia County against the present plaintiff corporations and sought damages for violation of 'Pennsylvania and Federal Law' for a 'conspiracy to fix retail gasoline prices.' (Paragraph 46, Plaintiffs' Complaint.) By reason of the request of the instant plaintiff-corporations, the case was remanded to this Court as Civil Action No. 33296. On December 17, 1963, Judge Van Dusen granted the gasoline companies' motion for summary judgment from which no appeal was taken.

 Plaintiffs claim that the instant action was filed because of a 'threat' of counsel for Fiumara 'to institute a third action on the same unfounded claims, this time in the Courts of the Commonwealth of Pennsylvania, unless he is paid a substantial sum of money by these plaintiffs.' (Paragraph 5, Plaintiffs' Complaint.) This alleged threat was contained in a letter written by A. E. Hurshman, counsel for Fiumara, on February 25, 1964, in which he indicated various legal theories upon which he thought the oil companies may be liable, and in which he suggested an 'amicable' adjustment so that the oil companies would not become involved in 'innumerable lawsuits, similar to the General Electric cases now in the Federal Court.' (Plaintiffs' Exhibit No. 1).


 In addition to the customary restraint required in issuing injunctive relief, in my view, the courts should exercise even greater restraint in issuing injunctions against the 'relitigation' of issues which were or 'could have been litigated' in prior cases. *fn7" Often a prohibition against relitigation is necessarily based on a plethora of variables which sometimes cannot be determined with the precision of a prohibition against specific physical acts. As an example, the prohibition against filing claims which 'could have been litigated' is not as certain a guide as is the prohibition that one must not picket in front of store X or must not sell stock Y. Yet even if ...

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