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George Patterson v. Bernard Averbeke

September 6, 2011


The opinion of the court was delivered by: Stengel, J.


George Patterson brings this action against Bernard Averbeke, the owner of a used car dealership known as Freedom Used Cars in East Petersburg, Pennsylvania. The amended complaint alleges violations of 42 U.S.C. § 1981 of the Civil Rights Act of 1866, and the Pennsylvania Human Relations Act. The parties have filed cross-motions for summary judgment. Mr. Patterson also filed a motion to strike several documents which Defendant Averbeke attached to his response to the plaintiff‟s motion for summary judgment. For the following reasons, I will deny the motions, reserving the right to revisit the motion to strike at trial.


On January 22, 2009, Plaintiff George Patterson, an African American, was searching through flyers and advertisements for a luxury car while at the home of his fianceee‟s father, Ben Burgos. He planned to purchase a car for his fianceee as an early wedding present. Mr. Patterson found a 2002 BMW for sale in one of the periodicals at a price of $16,950. The car was located at Defendant Freedom Used Cars, owned and operated by Defendant Bernard Averbeke. Mr. Patterson called the phone number associated with the ad, and confirmed with Mr. Averbeke that the car was still available.*fn1

After Mr. Burgos took a bath and ate dinner, he and the plaintiff drove to the dealership to purchase the BMW. Upon arrival, they walked over to the BMW, and waited several minutes for the defendant to approach them. Mr. Averbeke came out, greeted the gentlemen, but continued to engage in a separate conversation on his cell phone. Mr. Patterson asked the defendant if he could test drive the car,*fn2 and the defendant responded that he could not. Mr. Averbeke told Mr. Patterson "you can‟t buy the car," because the car had been "on hold"*fn3 for days. Mr. Patterson insisted that he wanted to buy the car, and that he could "pay right now." Mr. Averbeke did not offer to sell any of the other cars on the lot to the plaintiff. Mr. Burgos said to Mr. Patterson, "Let‟s go, he‟s a racist." The two men turned and walked away.

At some point shortly after this encounter, the plaintiff called his friend James Bachman, a Caucasian. Mr. Bachman‟s telephone records show that he received that call at 6:14 p.m., on January 22, 2009. The plaintiff told Mr. Bachman that he had spoken by telephone with a salesman at Freedom Used Cars who told the plaintiff that a BMW was available, yet when he arrived at the dealership, that same salesperson said that the car was no longer for sale. Because he suspected racism after Mr. Burgos‟ comment, the plaintiff asked Mr. Bachman to call the dealership to ask the defendant if the car was still available. Mr. Patterson was interested to know whether the salesman would treat Mr. Bachman differently.*fn4 Telephone records show that Mr. Bachman complied and made the call to the defendant at 6:43 p.m., on January 22, 2009, twenty-nine minutes after the plaintiff‟s call to Mr. Bachman. Mr. Averbeke informed Mr. Bachman that the car was still available for sale, and that it was in good condition. In fact, Mr. Averbeke told Mr. Bachman that the interior of the car looked like it had just come off the showroom floor. Mr. Bachman testified that he was not sure whether Mr. Averbeke had told him the car had 104,000 or 140,000 miles. After asking for directions to the dealership, Mr. Bachman told the defendant that he would not be able to look at the car that night but would come and look at the car the next day. The telephone conversation lasted nine minutes.

On the following day, Mr. Bachman drove to the defendant‟s dealership with his children and the plaintiff, and parked on a lot next to the dealership. Mr. Patterson stayed in the vehicle while Mr. Bachman walked over to look at the BMW. Mr. Averbeke approached Mr. Bachman and they spoke about the car. Mr. Bachman asked if the car was still available for sale, and Mr. Averbeke responded that it was. Mr. Averbeke turned on the car, popped the hood, and showed Mr. Bachman the car‟s motor. He also offered Mr. Bachman to take the car for a test drive.

Mr. Averbeke testified that at some point between the time of the plaintiff‟s visit and the time of Mr. Bachman‟s telephone call, he had spoken with Jan Luc Sandillon, the friend and repeat customer for whom he was holding the car. Mr. Sandillon told Mr. Averbeke that his wife was concerned about the excessive mileage of the vehicle, and that he was no longer interested in purchasing the car. Thus, after Mr. Bachman withdrew his interest, the car again became available for sale.


Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing summary judgment "cannot rest on mere pleadings or allegations; rather it must point to actual evidence in the record on which a jury could decide an issue of fact its way." El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing relevant portions of the record, including depositions, documents, affidavits, or declarations, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or showing that an adverse party cannot produce admissible evidence to support the fact. FED. R. CIV. P. 56(c). Summary judgment is therefore appropriate when the non-moving party fails to rebut the moving party‟s argument that there is no genuine issue of fact by pointing to evidence that is "sufficient to establish the existence of an element essential to that party‟s case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992).


Title 42 of the United States Code, Section 1981, prohibits racial discrimination in, inter alia, the making and enforcement of contracts and property transactions:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like ...

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