to Waldman of July 13, 1979, which was posted by certified mail. The notice declared Crown's intention to terminate the relationship effective October 15, 1979 and explained Crown's reasons for deciding to terminate. The notice also included a summary of rights prepared and published by the Secretary of Energy. Crown's supplemental notice of termination, dated July 17, 1979 also satisfied the above requirements. Waldman does not contest the validity or sufficiency of these notices of intent to terminate. We hold that they were proper and sufficient under the PMPA.
Termination by the franchisor under the first, third, and fourth reasons advanced by Crown carries certain other timing requirements. Crown must have acquired actual or constructive knowledge of the actions at the base of its decision to terminate not more than 120 days prior to the date on which notification is given, if such notification is given pursuant to 15 U.S.C. § 2804(a). 15 U.S.C. § 2802(b)(2)(A)(i) & (C)(i). Alternatively, the franchisor must have known of the action not more than 60 days prior to the date of notice, if less than 90 days notice is given pursuant to 15 U.S.C. § 2804(b) (1). 15 U.S.C. § 2802(b)(2)(A)(ii) & (C)(ii). The first Sunday on which Waldman refused to open or operate the station, which is the first action on which Crown relies, was May 20, 1979. The notices of termination were sent out on July 13 and 17, 1979, both of which are within the more restrictive 60-day time limit. Again, Waldman does not argue that Crown failed to satisfy this requirement. We hold that Crown satisfied the above timing requirements.
We do not believe, however, that Crown has complied with the requirements for its second reason offered for termination failure to exert good faith. Before such a basis for termination may be offered, the franchisor must apprise the franchisee in writing of the failure so that the franchisee has a reasonable opportunity to exert good faith efforts. 15 U.S.C. § 2802(b)(2)(B)(i). The continued failure must then occur within 180 days before the date of notification of termination. 15 U.S.C. § 2802(b)(2)(B)(ii). Although Crown asserts in its brief that three of its representatives advised Waldman of the violations of the Agreement before its notice of termination, Brief of Plaintiff, p. 13 (filed Jan. 21, 1981), Waldman avers that this advise was verbal and not in writing. Crown does not dispute this. The burden of establishing that proper notice was given is on Crown, and it did not meet that burden. We hold for Waldman in ruling that his alleged failure to exert good faith efforts to carry out the Agreement could not be a valid reason for termination under the PMPA.
Crown has complied, therefore, with all conditions precedent to its termination of the franchise relationship based on its first, third, and fourth reasons. We will now examine each of those substantive points to determine if Crown's termination of its relationship with Waldman was justified.
B. Failure To Comply with Reasonable and Material Provisions of the Franchise Agreement
Defendant has provided us with no evidence or persuasive legal argument to refute Plaintiff's first basis for termination of the franchise arrangement. Crown claims that Waldman failed to comply with a reasonable and material provision of the Agreement, i. e., service stations must be open seven days each week.
Neither party disputes that the Agreement required continuous operation of the station 24 hours per day and seven days per week. Neither party disputes that Crown temporarily waived the 24 hour per day requirement during the spring and summer of 1979 and that this waiver did not apply to, but specifically required compliance with, the seven days per week requirement. Finally, neither party disputes that Waldman willfully and knowingly refused to open or operate his station for seven consecutive Sundays and one three-day weekend during the spring and summer of 1979. The only issue in dispute is whether the requirement of continuous operation of the station, as modified by Crown, is reasonable and material.
1. Reasonable and Material Requirement
Prior to the 1960's, Crown marketed gasoline through low-volume two- and three-bay service stations. Because Crown believed this conventional method economically unfeasible, it developed a high volume, multi-pump method of operation. One of the unique features of Crown's program is the uniform policy of requiring all stations to maintain continuous operations 24 hours per day, 365 days per year. An executive of Crown termed the continuous operation policy "the cornerstone of our operation." Transcript of Preliminary Injunction Hearing, p. 8 (hereinafter referred to as "N.T."). During the gasoline shortage of 1979, Crown received favorable publicity from the printed and electronic media and developed its popularity with the public. N.T. 29. Moreover, Crown's uniformity in a vital, high visibility feature, such as continuous operation, is important to its public image. See, e.g., Principe v. McDonald's Corporation, 631 F.2d 303, 309 (4th Cir. 1980) (uniformity among franchises is important).
The reasonableness of the continuous operation requirement has been reviewed in prior litigation and has been upheld. A New Jersey court found good cause for the termination of a dealer under the New Jersey Franchise Practices Act, N.J.S.A. § 56:10-1 et seq., and reviewed, inter alia, the continuous operation policy:
The 24 hour per day, seven day per week operation is a key policy, what has been referred to as a hallmark policy of Crown Central Petroleum, subject only to zoning restrictions and to emergencies beyond the dealer's control.