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June 3, 1980

FERNANDO GASPAR, t/a FRED'S CHEVRON, Plaintiff, v CHEVRON OIL COMPANY, a California corporation, BRIARVILLE CORP., a New York corporation, and JOHN DOE, also known as PHILIP N. PORCELLI, Defendants.

The opinion of the court was delivered by: SAROKIN

This is an action for damages by a gasoline station operator against Chevron Oil Co. brought under the Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq. (hereinafter referred to as "PMPA"). Plaintiff alleges that Chevron wrongfully concealed and failed to exercise an option to renew its lease with the fee owner, Briarville, and thereby effected an illegal "nonrenewal " *fn1" of plaintiff's franchise. The issues before the Court are whether an oil company is required to (1) disclose the existence of an option to renew the underlying lease; and (2) exercise said option so as to permit the franchisee to continue in possession of the demised premises.

Chevron moves for summary judgment on the following facts which are not in dispute. In January of 1976, the parties entered into certain lease and gasoline agreements which constituted a franchise as defined in § 2801(1) for a service station located in Cranford, New Jersey. Unlike the typical Chevron franchise term of five years, the term was for a period of four years as a result of the parties' recognition that Chevron's underlying lease would terminate within said four-year period in January of 1980. In October of 1979, more than 90 days prior to the expiration of the underlying lease and the franchise lease, plaintiff received a notification from defendant that his franchise would not be renewed.

 Plaintiff, at Chevron's suggestion, had already begun negotiating directly with the owner and expected to enter into a lease directly with said owner and continue operating a franchise at said location with Chevron as a franchisor. However, before the lease was consummated another party acquired the lease from the owner. The plaintiff sought injunctive relief in a state action against the owner, the new tenant, and Chevron. The matter was settled upon plaintiff's payment to the new tenant of the sum of $ 12,000, and plaintiff thereupon entered into a direct lease with the owner. Plaintiff sought to recover said $ 12,000 from Chevron and the matter was removed to the Federal court.

 The party moving for summary judgment must show the absence of a genuine issue of material fact, and, for this purpose, the facts must be viewed in a light most favorable to the opposing party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Plaintiff acknowledges the correctness of defendant's statement of facts, and, therefore, there is no genuine issue of material fact. The gravamen of plaintiff's argument is that the defendant concealed the existence of its option to renew its underlying lease with the owner until September of 1979, thereby depriving plaintiff of the opportunity to obtain an injunction compelling defendant to exercise said option before said right expired.

 Chevron's defense, which must be established as an affirmative defense under 15 U.S.C. § 2805(c), is that it acted in compliance with § 2802(b)(2)(C) and § 2802(c)(4). Said sections provide for nonrenewal of the franchise upon:

§ 2802(b)(2)(C) The occurrence of an event which is relevant to the franchise relationship and as a result of which . . . nonrenewal . . . is reasonable, if such event occurs during the period the franchise is in effect and the franchisor first acquired . . . knowledge of such occurrence
(1) not more than 120 days prior to the date on which notification of . . . nonrenewal is given . . .

 Defendant relies in particular upon § 2802(c)(4)

loss of the franchisor's right to grant possession of the leased marketing premises through expiration of the underlying lease, if the franchisee was notified in writing, prior to the commencement of the term of the then existing franchise
(A) of the duration of the underlying lease, and
(B) of the fact that such underlying lease might expire and not be renewed . . . at the end of such term.

 The Act is the exclusive remedy available to the franchisee, § 2806, and he is generally entitled to injunctive relief and/or damages after proving nonrenewal, unless the franchisor meets the burden of going forward and establishes that nonrenewal was permitted under the Act.

 Plaintiff's argument that defendant concealed the existence of the option to renew runs contrary to his claim for relief. If plaintiff did not know about the option to renew when he entered into the franchise agreement, his only expectation could have been a termination of the franchise upon the expiration of the underlying term. In the absence of any knowledge regarding the existence of an option to renew, defendant notified plaintiff that the franchise would terminate on the very date plaintiff expected it to terminate.

 If plaintiff had known about the option at the time he entered into the franchise agreement, he might argue that he relied upon the existence and possible exercise of said option to justify contemplation of a like extension of his franchise ...

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