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ASHOK TYAGI v. DISTAZU

December 28, 1992

ASHOK TYAGI, Plaintiff
v.
VINCENT DiSTAZU, et al., Defendants



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 December 28, 1992

 BACKGROUND

 Plaintiff Ashok Tyagi alleges in this civil rights action that federal agents violated his constitutional rights by seizing records, cash, and diesel fuel oil from two service stations operated by plaintiff in Pennsylvania. One of plaintiff's stations is located in Mill Hall, Clinton County, Pennsylvania. The other is located in Liverpool, Juniata County, Pennsylvania. Plaintiff has, since February 1, 1992, operated the Mill Hall station through a corporation which he owns, Exit 25 Fuel Stop, Inc. Plaintiff leases the Mill Hall station pursuant to an agreement with Liberty Shell, Inc.

 Plaintiff has, since May 1, 1992, operated the Liverpool station through a corporation he owns, Amoco Fuel Stop, Inc. He leases the Liverpool station from Amarbir Singh and Aminderjit Aulakh, and assumed operation of that business from Liverpool Amoco, Inc., by separate agreements dated May 1, 1992.

 Liberty Shell, Inc. and Liverpool Amoco, Inc. were targets of an IRS investigation concerning the alleged non-payment of federal diesel fuel taxes which led to the issuance of search and seizure warrants against Liberty Shell, Inc., Liverpool Amoco, Inc. and two hundred other businesses engaged in the sale of diesel fuel in four states, Pennsylvania, Ohio, West Virginia and New Jersey. The warrants were executed on October 20, 1992. At that time, all records and diesel fuel at the plaintiff's two Pennsylvania stations and all cash held by plaintiff in connection with the two stations were seized by federal agents assisted by the Pennsylvania State Police. No warrant was issued against Tyagi, Exit 25 Fuel stop, Inc., or Amoco Fuel Stop, Inc. and none was the target of a federal investigation prior to execution of the warrants.

 Tyagi alleges in this action that the seizure was a violation of his Constitutional rights. He alleges that his businesses are not tied to Liberty Shell, Inc. or Liverpool Amoco, Inc.; that his only relationship with them is that of lessee and/or business successor; and that all property seized by the agents belonged to him and his corporation, not Liberty Shell, Inc. or Liverpool Amoco, Inc. He contends that the agents had no legal basis for the seizure of his property, and seeks its immediate return.

 Plaintiff petitions for a preliminary injunction (Record Document No. 2) directing the immediate return of all property seized from his premises. *fn1" An evidentiary hearing on plaintiff's motion was held December 21, 1992. Plaintiff testified on his own behalf. The defendants presented no testimony. Although defendants offered to present testimony of federal agent Dick Miller in camera outside the presence of counsel for the plaintiff, the court declined the offer. The court found that the testimony proffered was not relevant to the issue immediately before the court.

 Based on the testimony presented, we find insufficient evidence that plaintiff will suffer irreparable harm if this court does not order the immediate return of his property. While there was evidence that plaintiff may suffer financial reverses if his cash and fuel are not returned at once, all of the indications are that all the resulting harm is compensable with monetary damages. That does not demonstrate irreparable harm, and therefore, does not support issuance of an injunction directing immediate return of the property.

 DISCUSSION

 The parties disagree on the standard to be applied to plaintiff's motion. Plaintiff contends that since this is a civil, constitutional rights action, he is entitled to an injunction directing the return of his property if he succeeds in proving the criteria applicable to grant of injunctive relief in all civil actions filed in this Circuit. To obtain a preliminary injunction, a civil litigant should demonstrate: 1) a likelihood of success on the merits; 2) that he will suffer irreparable harm if an injunction does not issue; (3) granting the injunction would impose no greater harm upon the defendant than would be imposed upon the plaintiff by the denial of an injunction; and (4) the public interest would be best served by granting the injunction. Opticians Association of America v. Independent Opticians of America, 920 F.2d 187, 191-92 (3d Cir. 1990).

 Irreparable harm and likelihood of success on the merits are essential elements. Absent a showing of either one, the petitioner is not entitled to injunctive relief. To prove irreparable harm, the petitioner must show that the harm threatened by the defendant's conduct, in this case by the seizure of petitioner's property, cannot be compensated by money damages. If the threatened harm is compensable with monetary damages, the petitioner has not demonstrated irreparable harm and is not entitled to a preliminary injunction. Frank's GMC Truck Center, Inc. v. G.M.C., 847 F.2d 100, 102-03 (3d Cir. 1988) and Morton v. Beyer, 822 F.2d 364, 371-72 (3d Cir. 1987).

 The defendants *fn2" contend that the applicable standards are the ones set forth in the Internal Revenue Code (the "Code") under the provisions governing forfeiture of assets used for ...


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