resulting in the termination and cancellation of AAA's franchise. The action referred to was discontinued with prejudice, as to certain of the parties, in accordance with a stipulation filed March 12, 1959. It was formally dismissed (as to the other parties) by the Court on February 25, 1960, in accordance with General Rule 12.
The affidavit of George Getz, filed in the AAA case, recites that the affiant was the District Manager of Krich-New Jersey, Inc. for Bergen and part of Hudson Counties on the date of the affidavit, October 9, 1958, and had held this position since August, 1954. His employment duties required him to sell his employer's products to retail dealers in the allotted territory; one of those dealers being the plaintiff, AAA. Mr. Getz states that he was instructed by his superior, Mr. Fisher (General Sales Manager of Krich) to advise Mr. Frank, President of AAA, to submit false affidavits for the purpose of having 'something on Frank because the pressure was becoming heavier from Bruno and it was only a question of time before Krich would have to cut AAA off.' In 1958 AAA's franchise was cancelled. However, after AAA brought suit (according to Mr. Getz's affidavit) it was reinstated as a dealer, but that he (Getz) was instructed by Mr. Fisher not to call on AAA any more.
The affidavit of Milton Frank, President of AAA, in that case, corroborates that of George Getz concerning the filing of false affidavits.
The affidavit of Joseph F. Curto (in the case at bar), Secretary-Treasurer of Curto's, Inc., reflects that RCA-manufactured and RCA-branded products are distributed through the regular RCA distribution chain. He asserts that whether or not RCA manufactures the merchandise is immaterial. RCA distributors, he claims, in connection with sales contests, award prizes for the sale of RCA-Whirlpool products as well as RCA electrical devices. The sale of any RCA-branded product is worth a specific number of points, and those earning the requisite number of total points are awarded prizes. Mr. Curto also states that it is well known to the industry that Irving Sarnoff (now deceased), who was the head of Bruno, is the brother of David Sarnoff who is Chairman of the Board of RCA. Curto's formerly purchased RCA-Whirlpool merchandise from Dell Electric, but Mr. Curto states that this source of supply was removed after Dell Electric received a visit from an RCA representative from Camden, New Jersey, threatening to cut Dell off if it continued transshipping goods to Curto's, Inc. in New York. This, says Mr. Curto, 'bears out emphatically the closest involvement of RCA in the cutting off of plaintiff's supplies of RCA-branded merchandise.' In Mr. Curto's deposition he stated that the agent from Camden was a representative of the manufacturer.
The complaint in this action, drawn for the most part in conclusory fashion and alleging ultimate facts, also charges that RCA maintains or has access to RCA-Whirlpool product-serial numbers, which numbers enable RCA to identify the distributors to whom and through whom said products are sold. This alleged fact is denied by RCA through the supporting affidavit of Mr. Martin F. Bennett. The theory of plaintiff's case is that RCA, because of its control over Krich, was able to induce this distributor to terminate and cancel AAA's retail franchise, which cancellation deprived Curto's of its source of supply. Plaintiff further alleges that one of the means by which RCA discovered that Krich was the distributor who trans-shipped to Curto's in New York was that of tracing the RCA-Whirlpool serial numbers of RCA-Whirlpool products handled by Curto's. As mentioned above, Mr. Bennett also asserts in his affidavit that RCA franchises are not concerned with the sale of these Whirlpool products, which statement is contradicted by Mr. Curto in his opposing affidavit.
In view of the foregoing, it is my opinion that genuine issues of material fact are presented. It is clearly established that affidavits in support of a motion for summary judgment may be considered for the purpose of ascertaining whether an issue of material fact is presented, but they may not be used as a basis upon which to decide such issues. Frederick Hart & Co. v. Recordgraph Corp., 3 Cir., 1948, 169 F.2d 580. Also, this Circuit recognizes that the search for issues of fact must also include scrutiny of the pleadings, and if a basic fact is alleged therein, it need not be reiterated upon its contradiction in an affidavit supplied by the opposing party in support of its motion. Vanity Fair Mills v. Cusick, D.C.N.J.1956, 143 F.Supp. 452; Frederick Hart & Co. v. Recordgraph Corp., supra.
I am further of the opinion that because of the serious nature of the allegations and charges which plaintiff makes, it should not be foreclosed of an opportunity to produce proof in support thereof. I find the language in United States v. General Railway Signal Co., D.C.W.D.N.Y.1952, 110 F.Supp. 422, which also involved a charge of conspiracy in violation of Section 1 and 2 of the Sherman Act, apposite to the present case. At page 425 of that case, the Court stated:
'Conspiracy, ordinarily, is not proved by direct evidence in the manner as is an action on a written contract. The very nature of conspiracy has its base in secrecy toward the party to be duped or the law to be evaded and can only be established by piecing together the fragments of evidence as to conduct, speech and writings of the parties to the conspiracy. Interstate Circuit v. United States, 306 U.S. 208, 59 S. Ct. 467, 83 L. Ed. 610, * * *.
'If movant should submit its case to this Court upon the affidavits and pleadings now before it * * * gross injustice might be done * * *. Not all of the facts which a formal trial would produce are before the Court and the Court has a slight doubt, at least, as to the facts.'
Another factor properly to be considered by a Court in deciding a motion for summary judgment is whether or not the party opposing the motion has had access to the proof. Moore's Federal Practice Vol. VI, para. 56.15(5). In this action, where the proof (if there be any) will be peculiarly within the knowledge or control of the defendants, plaintiff should be granted the opportunity of proceeding with its discovery in accordance with the appropriate rules.
It is only where there clearly are no issues in the case that a summary judgment is proper. Even in an instance where the Court may feel it will have to direct a verdict on the issues which have been raised, it should ordinarily hear the evidence, rather than attempt to dispose of the case summarily. Pierce v. Ford Motor Co., 4 Cir., 1951, 190 F.2d 910.
The motion for summary judgment is denied. Submit order.
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