[99 NJSuper Page 578] This matter is before the court on motion of plaintiff Del Spina for summary judgment. The claim of co-plaintiff United Stations of New Jersey was dismissed as to Shell Oil Company for lack of standing. Counsel for plaintiffs in his memorandum filed in support of this motion states that the complaint of United Stations of New Jersey "admittedly can be dismissed as to other defendants." Accordingly, an appropriate order will be submitted to that
effect. It may also be noted that the complaint has been dismissed as to defendant William Kingsley, Acting Director of the New Jersey Division of Taxation.
The present application by Del Spina is for injunctive relief. At the oral argument on the motion he stipulated that he sought no monetary relief. Plaintiff, who operates a Mobil filling station at 460 Main Street, Orange, seeks relief against the named major oil and refining companies and against the named retail dealers, individually and as class representatives of service station operators throughout the State for the Shell Oil Company, Atlantic Richfield Company and Tidewater Oil Company (now Getty Oil Company), respectively. He moves the court to enjoin the oil companies and their participating retail dealers from conducting certain giveaway contests -- Shell's "Americana," Atlantic Richfield's "Match the Red Ball," Humble Oil and Refining Company's "Tigerama," and Getty's "Flying Aces," apparently superseded by "Make Money."
The contests sponsored by the respective oil companies are the same in principle. No contest requires the public to purchase any merchandise as a condition for participation, and no retail service station operator is required to conduct a contest sponsored by his oil company. The oil companies sell to willing retail service station operators quantities of contest tickets or slips and supply these dealers with other promotional materials. Although the profusion of the games has given birth to numerous contest forms, generally if a contestant obtains matching tickets or slips he is entitled to a prize. The lesser cash and consumer goods prizes are paid or dispensed by the retail dealer who is reimbursed by his oil company. The larger prizes are paid or dispensed directly by the sponsoring major oil companies. In most instances the distribution of contest slips is restricted to licensed drivers who enter the retailers' premises and ask for them, although some companies instruct their participating retailers to issue slips to any service station visitor who requests them.
Plaintiff's claim to injunctive relief is predicated upon the claim that the service stations' promotional contests violate N.J.S.A. 56:6-2(f) which provides that:
"It shall be unlawful for any retail dealer to use lotteries, prizes, wheels of fortune, punch-boards or other games of chance, in connection with the sale of motor fuels."
This cited provision is part of a 1938 enactment entitled "An Act to regulate the retail sale of motor fuels," N.J.S.A. 56:6-1 to 17.
When the oil companies first proposed promotion of the contests in the spring of 1966, they inquired of state officials for an opinion as to their legality. On August 1, 1966 the Attorney General's office ruled:
"* * * at the present time and under present practices, [these contests] do not appear to be violations of N.J.S.A. 56:6-2(f). All of the promotions as presently undertaken provide that a participant need not purchase motor fuel * * *."
Defendants interpose many defenses to plaintiff's motion for summary judgment. They urge that he has no standing to sue for injunctive relief against alleged violations of a statute penal in nature. They argue that their contests do not constitute lotteries or games of chance because plaintiff has failed to show that consideration, an alleged requisite element of these devices, is present. They also contend that the giveaways are not conducted "in connection with the sale of motor fuels" and hence are not violative of the statute. Another assertion is that plaintiff presents no proof of damage or threatened damage to his business sufficient at this time to entitle him to permanent injunctive relief. It is further contended that plaintiff is guilty in two respects of unclean hands. Finally, defendants contend that factual issues are presented which preclude the entry of summary judgment.
On motion for summary judgment it is the movant's burden to exclude any reasonable doubt as to the existence
of any genuine issue of material fact. R.R. 4:58-3. All inferences of doubt are drawn against the movant in favor of the opponent and the papers supporting the motion are closely scrutinized and opposing papers indulgently treated. Such relief is to be granted with much ...