that ARCO's allocation program was virtually nationwide in scope and unrelated to the activities of Intermar and other discount dealers in the Philadelphia area. To suggest that the defendant's allocation formula for the entire area east of the Rockies was based upon a combination or conspiracy involving a few dealers in the Philadelphia area is to suggest that Philadelphia controls the defendant's marketing policies east of the Rockies, for which there is no supporting evidence in the record. These considerations negate the suggestion of a combination or conspiracy.
Under ARCO's gasoline allocation program the same control basis was used for lessee-dealers, for contract dealers and for commercial dealers and the testimony adduced at the preliminary hearing demonstrates that the allocation program was applied without discrimination among these classes of dealers. Where there was a corresponding sales history for June 1972, the dealer received 104% of its June 1972 sales. Absent a corresponding sales history for June 1972, or the occurrence of a material intervening event, the dealer was allocated 104% of 1/12 of the estimated yearly consumption (EYC) for that location in calculating its allocation control figure for contract and lessee-dealers in June 1972. Material intervening events include, inter alia, a change in dealers, reconstruction of a location, highway reconstruction, change in traffic patterns, the occurrence of a natural disaster such as Hurricane Agnes, and like matters. Since Intermar had no sales history with ARCO in June 1972 for its contract operations at 80th and Ogontz, at Castor and VanKirk, and at Norristown, the allocation in June 1973 was 104% of 1/12 of the EYC for each station. Under these allocations, only 80th and Ogontz utilized its entire supply, while substantially less than the allocated amount was used at the remaining locations. Moreover, under the June 1973 allocations in the Philadelphia and suburban area, approximately 68 stations exhausted their supply, of which approximately one-half were lessee-dealers. Thus, on this record, there is no evidence that ARCO acted discriminatorily or unfairly toward Intermar and other contract dealers in establishing its gasoline allocation.
Finally, plaintiff's allegation that the allocation program was arbitrarily and discriminatorily administered against independents by ARCO representatives on a local level, in that they refused to consider exceptions on the basis of hardship is unsupported by the evidence. Accordingly, we conclude on the substantial, but incomplete, record before us that plaintiff has failed to demonstrate a likelihood of a combination or conspiracy within the meaning of the Sherman Act.
In support of its claim for injunctive relief, plaintiff alleges that it will suffer irreparable harm in the event such relief is not granted in that as a result of the curtailment of supplies of gasoline, it has suffered a direct loss of profits over and above its normal return on capital and has suffered direct loss of its prospect for additional profit in the future. The gasoline allocation at 80th and Ogontz has caused a decrease in sales volume, a curtailment of hours of operations and a decrease in the number of its employees. Intermar's president, Anthony Baker, testified that the reduction of its gasoline supplies at the 80th and Ogontz location would cause a very minimal profit to be produced. Paragraph 42 of the complaint calculates the total actual damage suffered by the plaintiff to exceed one million dollars, subject to trebling under the Sherman Act. In addition, plaintiff claims that as a result of the curtailment of its gasoline supplies, its 80th and Ogontz location has suffered a direct loss of its good will and reputation as a 24-hour station and as a price discounter. The import of plaintiff's allegations and proofs with respect to irreparable harm clearly demonstrate that Intermar's loss resulting from the curtailment of supplies due to ARCO's gasoline allocation program are calculable in money damages. It has been uniformly held in this circuit, that where plaintiff's losses are calculable in monetary damages, preliminary injunctive relief must be denied. A.L.K. Corp. v. Columbia Pictures Indus. Inc., 440 F.2d 761 (3d Cir. 1971); Graham v. Triangle Publications, Inc., 344 F.2d 775 (3d Cir. 1965).
Moreover, the plaintiff corporation operates fourteen retail gasoline service stations in Philadelphia and its surrounding area, of which its 80th and Ogontz location is but one. Further evidence of plaintiff's ability to absorb the monetary loss caused by the allocation program pending an ultimate determination of this case on its merits, is that plaintiff's remaining ARCO "contract dealers" stations at Castor and VanKirk and at Norristown have been allocated 52,000 gallons each and that such allocations have not been nearly consumed. Although ARCO has represented to this Court that it would have no objection to the transfer of gasoline from those locations to 80th and Ogontz, Intermar has made no effort to take advantage of additional available gasoline resources.
Thus, on the record before the Court, there is no evidence that Intermar has suffered or will suffer irreparable harm from the application of ARCO's gasoline allocation program pending an ultimate determination of this case on its merits. Accordingly, plaintiff's motion for preliminary injunctive relief will be denied.
Before reaching our conclusions of law, we hasten to observe that we do not here decide the merits of the case. They are not before us for determination and indeed could not be determined on the substantial, but incomplete, record before us. Nothing herein stated should be construed as an attempt to determine finally any aspects of the ultimate merits of the case based upon a complete record. Railroad Yardmasters v. Pa. R.R. Co., 224 F.2d 226 (3d Cir. 1955); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir. 1953); U.S. v. ARCO, 297 F. Supp. 1061, 1067 (S.D.N.Y. 1969); Unicon Mgmt. Corp. v. Koppers Co., 366 F.2d 199 (2d Cir. 1966).
Parenthetically, we add that we are not unaware of allegations of anti-competitive behavior among the major petroleum-producing companies; of allegations that a fuel crisis does not, in fact, exist; of allegations that said crisis has been intentionally created by the major petroleum-producing companies for ulterior purposes; and similar allegations of lesser import. Suffice it to say, that these issues are not before us. We decide the issues before us on the basis of the record before us, aware of our obligation to do no more and no less.
Conclusions of Law
1. Under the evidence, the plaintiff has failed to prove a combination or conspiracy, involving the defendant, to suppress competition in violation of the Sherman Act;
2. Under the evidence, the plaintiff has failed to prove a combination or conspiracy, involving the defendant, to raise, regulate, stabilize or control gasoline prices;
3. Under the evidence, the plaintiff has failed to prove a violation or breach of defendant's contractual agreements;
4. Under the evidence, the plaintiff has failed to prove a violation of the Uniform Commercial Code of Pennsylvania;
5. Plaintiff has failed to prove a reasonable probability of success on the merits;
6. Plaintiff has failed to prove irreparable harm;
7. The public interest will not be harmed by the denial of a preliminary injunction;
8. The acts of the defendant in the manufacture, distribution and sale of gasoline affects interstate commerce;
9. Under the evidence, the defendant has not discriminated against the plaintiff;
10. Under the evidence, the defendant is under no obligation to supply plaintiff with its entire gasoline requirements and is not estopped from allocating its supplies;
11. The Office of Oil and Gas of the United States Department of the Interior does not have primary jurisdiction of plaintiff's claim for an additional or mandatory allocation of gasoline supplies;
12. A preliminary injunction will be denied.
And now, this 9th day of August, 1973, it is ordered:
1. That plaintiff's motion for a preliminary injunction is denied;
2. That defendant's motion that all proceedings be stayed pending plaintiff's application to the Office of Oil and Gas of the United States Department of the Interior for a gasoline allocation is denied, without prejudice to its renewal in accordance with this opinion;
3. That defendant's motion to dismiss is denied without prejudice to its renewal upon completion of discovery and the submission of supporting memoranda.
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