ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Aldisert, Van Dusen and Garth, Circuit Judges.
On this appeal, we are asked to determine whether the district court properly adjudged Arthur Treacher's Fish & Chips, Inc. (Arthur Treacher's) and its corporate parent, Mrs. Paul's Kitchens, Inc. (Mrs. Paul's),*fn1 in contempt of a March 26, 1981 temporary restraining order, which enjoined Arthur Treacher's and Mrs. Paul's from inter alia "interfering with [appellee] Magnesco's sources of supply for the products necessary to the operation of its franchise" and "taking any other action which hinders or impedes the operation of Magnesco's business (A. 55a-57a). The temporary restraining order was thereafter extended by the consent of the parties.
We conclude that we have jurisdiction of this appeal, that Arthur Treacher's was afforded a proper hearing on the issue of contempt, and that the district court's findings which resulted in the court adjudging Arthur Treacher's and Mrs. Paul's in contempt, were not clearly erroneous. Thus, we affirm.
Arthur Treacher's is the franchisor of Arthur Treacher's restaurants, and in addition owns and operates such restaurants. Magnesco Restaurants, Inc. (Magnesco) is a franchisee of Arthur Treacher's, owning and operating three Arthur Treacher's restaurants in the Bronx, New York (A. 12a). The facts underlying this case involve the same franchising dispute that is the subject of this court's decision in Arthur Treacher's Fish & Chips, Inc. v. A & B Management Corp., 689 F.2d 1137, which we have filed today. Arthur Treacher's franchise history and background (including its acquisition by Mrs. Paul's) is set out in detail in our opinion in A & B Management, to which we have just referred. We therefore do not repeat those facts here, but limit this factual recitation to only those matters which involve the instant controversy between Arthur Treacher's and Magnesco.
On March 7, 1981, Magnesco received a letter from Arthur Treacher's terminating Magnesco's franchise. Arthur Treacher's gave as a reason for the termination that Magnesco had failed to make payments on amounts owed to Arthur Treacher's for loans, rent, and franchise fees (A. 47). Magnesco, while disputing the amounts of monies claimed, concedes that it, like many other Arthur Treacher's franchisees, had ceased paying royalties because of Arthur Treacher's failure to abide by its commitments to its franchisees (A. 22).
Subsequently, on March 12, 1981 Arthur Treacher's instructed its exclusive distributor for the Bronx, Worcester Quality Foods, to cease shipping supplies to Magnesco. Worcester supplied 90 percent of the food and other items necessary to the operation of Magnesco's franchise (A. 359a). Since Magnesco had no source other than Worcester for these supplies, its business was threatened with imminent destruction (A. 29, 52).
On March 19, 1981 Magnesco filed a complaint in the United States District Court for the Southern District of New York charging Arthur Treacher's and Mrs. Paul's with violations of the antitrust laws, breach of contract, breach of fiduciary duty to the franchisees and other claims. Magnesco alleged that Arthur Treacher's termination letter and instructions to Worcester were part of a scheme to coerce its franchisees into purchasing certain products either from Arthur Treacher's or Mrs. Paul's, or, from one or two other designated suppliers (A. 30-32). According to Magnesco, this scheme constituted a restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Consequently, Magnesco's complaint sought an injunction prohibiting Arthur Treacher's and Mrs. Paul's from terminating Magnesco's franchise, from interfering with Magnesco's sources of supply and from attempting to collect monthly franchise fees from Magnesco (A. 37). Magnesco then sought a temporary restraining order which would prevent Arthur Treacher's from, among other things, interfering with Magnesco's sources of supply.
On March 26, 1981, District Court Judge Leonard Sand of the Southern District of New York entered a temporary restraining order restraining Arthur Treacher's from, "taking any . . . action which hinders or impedes the operation of Magnesco's business," including "interfering with Magnesco's sources of supply . . . ." (A. 56). The relevant text of this order is set out in detail later in this opinion. Thereafter, Arthur Treacher's, by stipulation and without a hearing, consented to an extension (without specific date) of the March 26, 1981 order, which otherwise would have expired by its terms on April 3, 1981.
During the pendency of Judge Sand's order, Worcester Quality Foods had continued supplying Magnesco. On June 4, 1981, however, Arthur Treacher's terminated its distribution agreement with Worcester Quality Foods (A. 64a-68a, 79a, 81a-82a), so that Worcester, from that date forward, was no longer an approved supplier of Magnesco and could not supply Magnesco as an Arthur Treacher's franchisee.
On June 16, 1981 Magnesco filed a contempt motion in the Eastern District of Pennsylvania, where this case had been transferred by the Judicial Panel on Multidistrict Litigation. It sought to hold Arthur Treacher's and Mrs. Paul's in contempt of the order of March 26, 1981 as extended, claiming that Arthur Treacher's actions with respect to Worcester Quality Foods violated that order. Evidentiary hearings were held on Magnesco's contempt motion on July 21, 1981, Judge Hannum of the Eastern District of Pennsylvania, after making findings of fact, held both Arthur Treacher's and Mrs. Paul's in contempt of Judge Sand's order.
This appeal followed.*fn2
We initially turn to the question of our jurisdiction. Two jurisdictional problems are presented. First, Magnesco asserts that we do not have jurisdiction of Arthur Treacher's appeal because no appeal may be taken from a temporary restraining order. Second, Magnesco claims that an appeal from an adjudication of civil contempt does not vest us with jurisdiction.
Although by its terms a temporary restraining order resembles an injunction, and thus a grant or denial of such an order would superficially appear to provide a basis for an appealable order reviewable by this Court, see 28 U.S.C. 1292(a) (1), it has generally been held that an appeal may not be taken from an order granting or denying a temporary restraining order. See, e.g., United States v. Crusco, 464 F.2d 1060, 1062 (3d Cir. 1972); Richardson v. Kennedy, 418 F.2d 235 (3d Cir. 1969) (per curiam). The fundamental reason for the difference in appealability between a temporary restraining order and all other injunctive orders is that a temporary restraining order is severely limited in duration. See, e.g., F.R. Civ. P. 65(b), (10 days); 29 U.S.C. § 160 (l), (5 days). Thus, the fact that a temporary restraining order is limited to short periods of time ...