refuse to renew its agreement with Mr. Wesley, that a preliminary injunction would impose less of a hardship on Mobil than the failure to grant such relief would have on the plaintiff and that there exists serious questions going to the merits of plaintiff's contention that nonrenewal was unjustified.
In its memorandum in opposition to the motion for a preliminary injunction and in support of its own motion, Mobil argues that it is entitled to summary judgment as it had grounds to refuse to renew its franchise agreement with Mr. Wesley. Defendant states that nonrenewal was based on Mr. Wesley's closing of his station for eleven days from November 27, 1980 through December 7, 1980. In addition to the fact that the closing was prohibited by paragraph 8 of the lease agreement,
defendant argues that a provision of PMPA, 15 U.S.C. 2802(c)(9), sanctions termination or nonrenewal of a franchise agreement by the franchisor if the franchisee fails to operate the "marketing premises" for seven consecutive days.
While plaintiff concedes that he did close his station for eleven days, he denies that this closing provided a legitimate ground under the PMPA for nonrenewal of the franchise relationship. Mr. Wesley's argument on this issue is two-pronged. First, he claims that conduct by representatives of Mobil lulled him into believing that the company had no objection to his closing of the station. Second, plaintiff contends that defendant has misinterpreted the meaning of "seven consecutive days" as it appears in Section 102(c)(9)(A) of the PMPA. It is plaintiff's view that this language means seven business days rather than seven calendar days. Under this theory, Mobil could not rely on § 102(c)(9)(A) as a basis for nonrenewal because excluding the Thanksgiving holiday and the weekends in question, Mr. Wesley's station was not closed for more than seven consecutive business days. After reflection, I am convinced that at least the first part of plaintiff's argument has merit. At this time, prior to an opportunity for full discovery, plaintiff has offered some evidence to support the claim.
The testimony of representatives of Mobil as well as that of Mr. Wesley given during the hearing on this matter lends support to plaintiff's claim that Mobil's conduct led him to believe that the company had acquiesced in, if not approved, his closing of his station from November 27, 1980 through December 7, 1980. It is undisputed that prior to the closing, Mr. Wesley put a sign in the window of the station office which read "Closed for vacation November 27 through December 7." (Notes of Testimony, 4/3/81, at 68). There is dispute, however, on other facts concerning Mobil's prior notice of Mr. Wesley's proposed vacation and its conduct as a result of such notice.
Mr. Wesley testified that he first posted the sign about his vacation on Election Day, November 4, 1980. (N.T. at 69). Plaintiff further stated that on or about November 12, 1980, he told John Woolfolk, a Mobil marketing representative who is in charge of the area in which Mr. Wesley's station is located, that he would be closing the station for the period following Thanksgiving. (N.T. at 43). According to plaintiff, Mr. Woolfolk responded to this information with the remark, "Do what you want. What can I say?" (N.T. at 44). Mr. Wesley also testified that on November 26, 1980, the day before the closing, Mr. Woolfolk, who was at the station, said to Mr. Wesley in parting, "Have a good vacation." (N.T. at 69-70). While plaintiff has admitted that he knew his lease prohibited any closing of the station for more than sixty consecutive hours (N.T. at 43), he argues that the conduct of Mobil representatives, particularly the conduct of Mr. Woolfolk, described above, lulled him into believing that Mobil was not against the closing and therefore would not enforce the sixty hour lease provision.
Mr. Woolfolk's version of events differs in some respects from that of plaintiff but is not completely contradictory. Mr. Woolfolk testified that although he had visited Mr. Wesley's station several times in the first weeks of November, 1980, (N.T. at 107), he did not see the sign until November 24. (N.T. at 90). Mr. Woolfolk denied that he ever discussed Mr. Wesley's proposed vacation with him prior to the closing of the station (N.T. at 91); however, he stated that he could not recall whether or not he told Mr. Wesley to have a nice vacation. (N.T. at 108).
During his testimony, Mr. Woolfolk revealed that he first learned of the proposed closing of plaintiff's service station from Tom Cazmey, the area manager for Mobil, who saw the sign when driving by the station on November 24, 1980. (N.T. at 90, 107). On that same day, when the station was closed, both Mr. Woolfolk and Mr. Cazmey went to plaintiff's service station to photograph the sign and some Jartran rental trucks, which were the source of another controversy between the parties. (N.T. at 108-09). Mr. Woolfolk further testified that Mr. Cazmey, for whom he worked, told him that the photographs were for "documentation" and that he was not to discuss the sign or the proposed closing with Mr. Wesley. (N.T. at 108-09). Consequently, when he visited Mr. Wesley the next day, he did not mention either the sign, the proposed closing or the photographs he had taken. (N.T. at 109).
Donald Hotsenpiller, Mobil's sales manager for the Philadelphia District, also testified at the hearing. He stated that on or about November 24, 1980, Tom Cazmey informed him about the sign appearing in the window of Mr. Wesley's station office. Upon receiving this information, Mr. Hotsenpiller instructed Mr. Cazmey that Mobil's representatives should not "contact" or "communicate" with Mr. Wesley concerning his intention to close his station for eleven days. (N.T. at 130). During cross-examination, the following exchange took place between plaintiff's counsel and Mr. Hotsenpiller:
Q: Did you at any time intend to use the closing as grounds for nonrenewal of his lease?
A: At that time if he elected to violate the PMPA, I would recommend, which I did, to terminate his lease.