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PARKS v. "MR. FORD"

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


January 10, 1975.

GILBERT PARKS, et al
v.
"MR. FORD" d/b/a/ FORD'S SPEED SHOP, et al WILLIAM MULDOWNEY, JR., et al vs. INTERNATIONAL CYCLES, INC., et al

The opinion of the court was delivered by: FOGEL

SUPPLEMENTAL OPINION AND ORDER

On December 11, 1974, we stated our intention to enter summary judgment in favor of defendants in these consolidated actions, as per the Opinion and Order of that date, on the dual grounds that plaintiffs had failed to show (1) sufficient state involvement in the conduct of defendants to constitute state action within the meaning of the Fourteenth Amendment, or (2) acts under color of state law within the meaning of 42 U.S.C. § 1983. / *fn1"

In our Order, we specified that the entry of a final judgment would be withheld until a conference was held with counsel for the parties with respect to resolution of the outstanding injunction that had been entered by Judge Masterson on June 26, 1972, *fn2" / ordering return of a vehicle of Lois Dillon by North Penn Motors, Inc. (North Penn). As a result of that conference, which took place on January 7, 1975, we have concluded that the injunction should remain in effect, pending appeal. We make the following Findings of Fact and Conclusions of Law, as required by Rule 52 of the Federal Rules of Civil Procedure, in support of the continuance of that injunction: / *fn3"

 FINDINGS OF FACT

 1. Anne Dillon, mother of plaintiff Lois Dillon, purchased a 1966 Chevrolet from defendant North Penn on or about June 25, 1971.

 2. Shortly after the automobile was purchased, plaintiff had problems with the transmission, and asked North Penn to make repairs, pursuant to its warranty.

 3. A dispute arose between plaintiff and North Penn with respect to payment for wheels and tires replaced by North Penn. Plaintiff claims the replacement was caused by North Penn's dereliction in permitting the vehicle to be left on an unguarded lot where these parts were stripped. North Penn maintains that the repair order permits a disclaimer by it for losses due to theft.

 4. Plaintiff refused to pay the entire amount claimed by North Penn, and the automobile was not returned to her.

 5. On June 26, 1972, Judge Masterson ordered the return of the automobile by North Penn subject to the payment into Court of a bond in the amount of One Hundred Ninety-two Dollars and eighty cents ($192.80).

 6. Plaintiff paid this amount into Court and recovered possession of her automobile.

 CONCLUSIONS OF LAW

 1. This Court has jurisdiction of plaintiff Dillon and defendant North Penn.

 2. This Court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. § 1343(3). Gibbs v. Titelman, 502 F.2d 1107, 1109 (3d Cir. 1974).

 3. In a case in which an appeal is taken from a judgment denying an injunction, the Court in its discretion may grant or continue an injunction pending appeal upon such terms as the Court may find proper. Rule 62(c), Federal Rules of Civil Procedure; Mayflower Industries v. Thor Corporation, 182 F.2d 800, 801 (3d Cir. 1950).

 4. (a) The legal questions in this case are substantial and complex and the precise issue has not been decided by the Court of Appeals for the Third Circuit. / *fn4"

 (b) Substantial injury may be caused to plaintiff Dillon if the Injunction is not continued.

 (c) The rights of defendant North Penn are fully protected by the bond paid into Court by plaintiff Dillon, which will remain in the custody of the Clerk.

 (d) The rights of the public will not be adversely affected if the injunction is continued.

 5. Defendant North Penn may apply to this Court for dissolution of this injunction if a timely Notice of Appeal is not filed by plaintiff Dillon pursuant to Rule 3 of the Federal Rules of Appellate Procedure.

 An appropriate Judgement will be entered of even date with this Supplemental Opinion and Order.

 BY THE COURT:

 HERBERT A. FOGEL United States District Court

 JUDGMENT

 AND NOW, to wit, this 10th day of January, 1975, it is ORDERED that Summary Judgment be and the same is hereby entered in favor of defendants and against plaintiffs in the above captioned consolidated actions.

 It is further ORDERED, pursuant to Rule 62(c) of the Federal Rules of Civil Procedure, and for the reasons stated in the Memorandum filed of even date with this Judgment, that pending appeal, the Preliminary Injunction entered in this matter on June 26, 1972, shall continue in full force and effect and the money paid into Court as bond therefor shall be retained by the Clerk. Defendant North Penn Motors, Inc. may apply to this Court for dissolution of this Injunction, if a timely Notice of Appeal is not filed pursuant to Rule 3 of the Federal Rules of Appellate Procedure.

 With the sole exception of the continuance of the injunction pending appeal, all relief sought by plaintiff in these consolidated actions shall be, and the same is hereby DENIED.

 BY THE COURT:

 HERBERT A. FOGEL United States District Court

19750110

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