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January 10, 1974

Robert J. Swettlen and Patricia A. Swettlen, his wife
Wagoner Gas And Oil, Inc., Phillips Petroleum Co., and George H. Wagoner

Snyder, J.

The opinion of the court was delivered by: SNYDER


 The defendant, Phillips Petroleum Company (hereinafter called "Phillips"), moved the Court for a Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure, in this Anti-trust suit. This Motion must be denied.

 Summary Judgment as envisioned by Rule 56 is a method of testing in advance of trial, not just the bare contentions found in the legal verbiage of the pleadings, but whether there is in actuality any real basis for relief or defense. The discussion in Moore's Federal Practice (Vol. 6 para. 56.15 (2nd Ed. 1972)) is particularly applicable here:

"The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law.
The courts hold the movant to a strict standard. To satisfy his burden a movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact."

 As recently indicated by our Circuit Court of Appeals in Hubicki v. A.C.F. Industries, Incorporated, 484 F.2d 519 (3rd Cir. 1973), the purpose of summary judgment is to expeditiously determine cases without necessity of formal trial where there is no substantial issue of fact. If such factual dispute exists, summary judgment is not the proper remedy. We must determine whether, based upon the pleadings and all other matters of the parties on file, there is any genuine issue of material fact which involves the liability of Phillips.

 On February 3, 1972, Plaintiffs applied for a Preliminary Injunction under the provisions of Section 16 of the Clayton Act, 15 U.S.C. § 26, to gain possession of the keys to the pumps. The Plaintiffs allege that Wagoner, Inc. and George Wagoner, as an individual, combined and conspired to fix the prices on the Plaintiff's sale along with Defendant Phillips, and that Wagoner retained the keys to the pumps by which the prices were posted, effectively carrying out the conspiracy and combination to fix the prices. The injunction request was subsequently withdrawn when the Plaintiffs cancelled the lease effective April 30, 1972.

 On February 29, 1972, Wagoner, Inc. filed an Answer which in effect set forth that the Complaint failed to state a claim upon which relief could be granted as to it, and denied each and every other allegation of the Complaint. Also on February 29, 1972, Phillips filed an Answer setting forth that the Complaint failed to state a claim upon which relief could be granted as to it, that none of the alleged activities of Phillips constituted a restraint of trade or commerce among the several States, and denied that the statutes under which the Complaint was brought made illegal any of the conduct alleged against Phillips. Numerous Requests for Answers to Interrogatories, Motions for Sanctions and for Protective Orders were made by all of the parties. *fn2" This Court on June 26, 1972, after conference with counsel and by agreement, ordered the Plaintiffs to answer certain interrogatories, permitted the Plaintiffs to inspect documents as more particularly outlined in the Order, and directed the Plaintiffs to file with the Court by August 31, 1972, a definitive statement of their theory on damages together with supporting data.

 The Plaintiffs subsequently filed a Pretrial Statement as to damages, which for ease of reference is attached to this Opinion as Exhibit A. This Statement sets forth that the Plaintiffs sold two grades of gasoline, Regular and Premium. However, the price depended on which pump dispensed the gasoline and what Wagoner, Inc. called it. For instance, when the Plaintiffs first started Wagoner, Inc. had regular gasoline and truck gasoline, which was two cents less. Later, Wagoner, Inc. installed "Blend" pumps which blended regular and premium gasolines. It was apparently impossible to determine how much of each gasoline went into the final blend mixture. Wagoner also sold Flite Fuel and Commercial Premium which were exactly the same, but sold for three or four cents difference in price per gallon. For the most part Wagoner, Inc. charged the Plaintiffs 38.9 cents per gallon of gasoline which was sold by the Plaintiffs for as low as 34.9 cents per gallon. Wagoner, Inc. would make a rebate to the Plaintiffs but in any event the price which the Plaintiffs charged was based on the price set on the pumps. This pricing was controlled completely by Wagoner, Inc.

 On November 22, 1972, the provisions of Local Rule 5(2), which govern Pretrials, were invoked and this case was set for pretrial upon completion of the time limitations set forth in the Rule. A copy of Rule 5(2) is attached to this Opinion as Exhibit B. It was not until March 1, 1973, however, that Defendant George Wagoner filed an Answer, which was substantially similar to the Answer previously filed by Wagoner, Inc.

 This Court again responded to a Request of the Plaintiffs for the Production of Certain Documents on March 20, 1973 by directing that the Plaintiffs arrange for any additional depositions within thirty days from the date the documents were made available to them and that all discovery was to be completed by June 30, 1973. In response to the Plaintiff's Motion for Extension of Time to Complete Discovery, it was agreed by all counsel on June 6, 1973, that the Plaintiffs' full Pretrial Statement would be filed by August 10, 1973; that Defendants' Pretrial Statements would be filed by August 25, 1973; and that the Pretrial Conference would be scheduled shortly thereafter. At a subsequent Status Conference a further extension was granted to the Plaintiffs giving them until August 24th while the Defendants thereby were given until September 1, 1973 to file their Statement. The Plaintiffs did file their Pretrial Statement on August 24, 1973, and Defendant Wagoner, Inc. filed a Request for Admissions by the Plaintiff on that same date. The Plaintiff objected to the Request for Admissions claiming that the installation of the "Blend" pumps was done by Wagoner, Inc. and that Phillips consented to the installation. The Plaintiffs neither admitted nor denied that the installation was done without the control or direction of Phillips, "it being beyond the knowledge of the Plaintiffs." The Plaintiffs further allege that the prices they were charged for the gasoline were based on a sliding scale that Wagoner, Inc. controlled. The retail price set on the pumps was the price paid by the Plaintiffs and this retail price was controlled by Wagoner, Inc., and if the retail price was raised then Wagoner's price to the Plaintiffs automatically went up.

 Phillips then filed a Motion for Summary Judgment claiming that under all of the Depositions and Answers to Interrogatories the Plaintiffs had made out an Anti-trust action against Wagoner, Inc. relative to the pricing methods employed by Wagoner, Inc. in its sales of gasoline and diesel fuel to the Plaintiffs. Phillips claimed that they had no contact with the Plaintiffs and that while Phillips did sell products to Wagoner, Inc., they did not sell to the Plaintiffs. Phillips set forth that the Plaintiffs testified repeatedly in depositions that they knew of no act of Phillips which resulted in injury to them and that in their Pretrial Statement the Plaintiffs had outlined the injuries which they had suffered and the method of calculating their damages, but that none of these were caused by Phillips. In addition, Phillips asserted that Plaintiffs' Pretrial Statement alleged that Phillips knew such practices were illegal, benefited from the ...

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