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REA v. FORD MOTOR CO.

May 5, 1971

Edward C. REA and 22 Ford Inc.
v.
FORD MOTOR COMPANY


Knox, District Judge.


The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 This is a complex action brought by Edward C. Rea, an individual, and a corporation of which he is the principal stockholder which acts as a Ford Motor Company Dealer in the sale and distribution of motor vehicles in Monroeville, Allegheny County, Pennsylvania. The defendant, Ford Motor Company, is a corporation of the State of Delaware with its principal place of business in the State of Michigan. The action is a diversity action as well as an action under the various anti-trust laws and under the Automobile Dealers Act (15 U.S.C. 1221, et seq.).

 The case has been pending for upwards of four years during all of which time extensive discovery has been taking place, much of which was resisted by the defendant necessitating proceedings in the Eastern District of Michigan. Also, a controversy developed relative to discharge by plaintiff of his original counsel and controversy with respect to counsel's fees which has been recently resolved.

 Early in the proceedings, the defendant took the position that plaintiff, Rea, did not have a sufficient memorandum in writing to satisfy the Pennsylvania Statute of Frauds (33 Purdon's Pa. Statutes 1); that all he had was an oral agreement which was denied by the defendant and insufficient facts were alleged to take the alleged contract out of the Statute of Frauds. For this reason, defendant claimed it was entitled to a partial summary judgment with respect to the second and seventh causes of action involving the conveyance of real estate. On July 21, 1967, the Honorable Rabe F. Marsh, now Chief Judge of this court, filed a Memorandum Opinion and Order which provided inter alia as follows:

 
"It is the opinion of this court that in the present state of the record, the defendant would be entitled to a summary judgment. When all facts are assumed in favor of the plaintiffs, all that is before the court is an oral agreement for an interest in land. Such agreement would be within the provisions of the Statute of Frauds and as such the agreement would have to be reduced to a writing to be enforceable. Thus, even if the court could reform the present lease, it would still be an oral agreement and as such unenforceable so that the court could not grant specific performance because to do so would be to enforce an oral agreement.
 
"This is fundamental law, but so too is it fundamental law that the writing needed can be a series of writings. Thus, since the period of discovery has been extended through mutual consent of the parties, it is the opinion of this court that the motion for summary judgment is premature.
 
"NOW, THEREFORE, this 21st day of July, 1967, IT IS ORDERED AND DIRECTED that Defendant's Motion for Partial Summary Judgment will be, and hereby is, denied without prejudice with leave to renew such a motion at a more appropriate time."

 Defendant thereafter renewed its Motion for Partial Summary Judgment before the Honorable Herbert P. Sorg, District Judge, who on February 19, 1970, likewise entered an order which provided inter alia that the same be denied without prejudice to the right of the defendant to renew its motion upon completion of discovery.

 It appears that discovery has now been completed and the defendant again renews its motion claiming that there is no right of specific performance because of the Statute of Frauds.

 A matter of procedure should be disposed of first. Plaintiff claims that this is not a proper case for partial summary judgment under the Rules of Civil Procedure. However, since there are separate claims or causes of action contained in this complaint, a summary judgment as to certain of these causes of action appears proper under Rule 56(b). *fn1" See also Rule 54(b) which provides for the entry of a final judgment as to one or more but fewer than all of the claims. *fn2"

 The court of appeals for this circuit has held that there should be no partial summary judgment for a portion of a single claim. See Coffman v. Fed. Laboratories, 171 F.2d 94 (3d cir. 1948); RePass v. Vreeland, 357 F.2d 801 (3d cir. 1966). The supreme court, however, has specifically held that a partial summary judgment covering one or more claims may be entered when the claims are entirely distinct. Reeves v. Beardall, 316 U.S. 283, 62 S. Ct. 1085, 86 L. Ed. 1478 (1942).

 As previously pointed out, there are seven causes of action set forth in this complaint and while the claims of the plaintiffs with regard to this real estate may be in a certain sense intertwined in all the causes of action, nevertheless, it is our opinion that the claims for reformation of the option agreement for specific performance and lis pendens as set forth in the second and seventh causes of action are separate ...


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