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November 9, 1993

ORSON, INC., Plaintiff,

The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 Joyner, J.

 The matter before the Court is plaintiff's application for a preliminary injunction to restore the status quo of the parties during the pendency of litigation. Plaintiff, Orson Inc., trades as the Roxy Screening Rooms, which is a movie theater in central Philadelphia. Defendant Miramax Film Corporation is a film distributor. Prior to the institution of plaintiff's lawsuit, plaintiff had received fourteen releases from Miramax which played at the Roxy Theater over a one and a half year period. Out of these fourteen releases, two of them were for first-runs, whereas the other twelve were for subsequent runs only. *fn1"

 On August 2, 1993, plaintiff filed a complaint against defendant alleging that defendant had engaged in a conspiracy to restrain trade in violation of the Sherman Act, 15 U.S.C. § 1, the Pennsylvania common law against unreasonable restraint of trade, and the Pennsylvania feature motion picture fair business practices law, 73 P.S. § 203-1. Plaintiff claimed that defendant and another movie theater in Philadelphia called the Ritz have conspired with one another to stifle competition in the market for the exhibition of art films. *fn2" Plaintiff essentially claimed that because Miramax has offered the Ritz approximately twenty-two of its films for exclusive first run engagements during a one and a half year period, and because plaintiff has only been able to obtain films from Miramax on a subsequent run basis despite its bids for these same films received by the Ritz, defendant and the Ritz are engaged in a conspiracy.

 After plaintiff initiated its lawsuit, defendant refused to license any more films to plaintiff during the pendency of the lawsuit. Plaintiff's amended complaint filed on August 19, 1993 reflected this fact, and defendant admitted this in its answer to the amended complaint filed on September 23, 1993. However, defendant expressly denied that the sole reason for refusing to license one particular film to plaintiff called "Strictly Ballroom" was because of plaintiff's actions in instituting the lawsuit.


 Preliminary injunctions are an extraordinary remedy, and are discretionary with the trial judge. Skehan v. Board of Trustees of Bloomsburg State College, 353 F. Supp. 542, 542 (M.D. Pa. 1973). They will only be granted when plaintiff can demonstrate the requisite elements of the remedy. Frank's GMC Truck Center, Inc. v. G.M.C., 847 F.2d 100, 102 (3rd Cir. 1988). Before an injunction will be granted, plaintiff must demonstrate by sufficient evidence: 1) a likelihood of success on the merits, 2) the probability of irreparable harm if the relief is not granted, 3) that granting injunctive relief will not result in even greater harm to the other party and 4) that granting relief will be in the public interest. Id.; Ecri v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3rd Cir. 1987). Further, in defining irreparable harm, it is not enough to establish a risk of irreparable harm, rather, there must be a clear showing of immediate irreparable injury. Ecri, 809 F.2d at 226 (citations omitted). Nor is it enough for the harm to be serious or substantial, rather, it must be so peculiar in nature that money cannot compensate for the harm. Id. (citations omitted).


 In its motion, plaintiff relies almost solely on Bergen Drug Co. v. Parke, Davis & Co., 307 F.2d 725 (3rd Cir. 1962) to support its argument that it is entitled to a preliminary injunction. Plaintiff argues that this case falls squarely within the facts of Bergen, therefore a preliminary injunction is warranted.

 In Bergen, plaintiff, a wholesaler, had instituted a private antitrust action against defendant, a drug manufacturer. Subsequent to plaintiff's actions, the defendant closed plaintiff's account stating that it no longer wanted to use plaintiff's distribution facilities. The court found that defendant discontinued its business because of the filing of the antitrust action by plaintiff, and further, that defendant conceded that fact.

 The court held that while companies have the right to choose whom to do business with, that they "should not be permitted to do so in order to stifle the main action, especially where it is apparent that such conduct will further the monopoly which plaintiff alleges defendant is attempting to bring about and which, if proved, would entitle plaintiff to permanent relief." Id. at 727. The court also added that a preliminary injunction would not be refused simply because the court might decide adversely against plaintiff in the main action. Id.

 The court then granted the preliminary injunction based upon the unchallenged facts in the record. The court found the following: first, plaintiff was a full-line, full-service wholesaler, which meant that pharmacies preferred to deal with such wholesalers because all their needs could be met at one time. The court found that many of defendant's products were "indispensable to the operation of a retail pharmacy." Id. at 728. If plaintiff was unable to fill its customers' needs, the court found that its customers would go elsewhere, thereby causing plaintiff a permanent loss of business.

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