The opinion of the court was delivered by: Lechner, District Judge.
This is an action brought by plaintiff Glenside West
Corporation ("Glenside") against Exxon Company, U.S.A., a
Division of Exxon Corporation ("Exxon"), and counterclaims
brought by Exxon against Glenside arising out of the decision
by Exxon to terminate the retail motor fuel service station
franchise of Glenside (Glenside and Exxon are collectively
referred to as the "Parties"). Glenside alleges jurisdiction
pursuant to the Petroleum Marketing Practices Act (the "PMPA"),
15 U.S.C. § 2805.*fn1 Exxon alleges federal question
jurisdiction pursuant to 28 U.S.C. § 1331 and jurisdiction
pursuant to 28 U.S.C. § 1337.
On 13 February 1991, Exxon filed a motion for a temporary
restraining order and a preliminary injunction to restrain and
enjoin Glenside from continuing to conduct its service station
business on Exxon's property located at 2591 Route 22, Scotch
Plains, New Jersey (the "Service Station"), from continuing to
maintain possession of the Service Station, from communicating
with or coming within close proximity to Exxon employees
Anthony Luciano ("Luciano") and William Cruikshank
("Cruikshank") and from coming within close proximity of the
Service Station and Exxon's Linden, New Jersey offices and
facilities (the "Linden Offices"). In addition, Exxon moved to
supplement its counterclaims to include the criminal
convictions of Robert E. Lee, Jr. ("Lee"), the president and
sole shareholder of Glenside, as a ground for terminating the
franchise relationship under the PMPA, 15 U.S.C. § 2802.
Oral argument on Exxon's motion for injunctive relief and to
supplement counterclaims was held on 25 February 1991.*fn2 In
a decision announced from the bench on that date, the Exxon
request to enjoin Glenside from continuing to conduct the
Service Station business and from continuing to maintain
possession of the Service Station was rejected. It was
determined such injunctive relief was not appropriate at that
time because it would effectively dispose of the case on the
merits by terminating the franchise business. The parties were
advised such injunctive relief was more appropriately the
subject of a motion for summary judgment.
Exxon now moves for partial summary judgment on the issue of
the lawfulness of Exxon's termination of the Franchise
Agreement under the PMPA, 15 U.S.C. § 2802. In addition, Exxon
renews its application for injunctive relief to enjoin Glenside
from operating and from maintaining possession over the Service
Station, as requested in its counterclaims.*fn3 Oral argument
on Exxon's motion for partial summary judgment and on its
application for permanent injunctive relief was held on 22
March 1991 (the "22 March 1991 Oral Argument").
For the reasons which follow, the motions for partial summary
judgment and for permanent injunctive relief are granted. In
addition, the reasons for the 25 February 1991 determination
enjoining Lee from approaching the Service Station, the Linden
Offices and Luciano and Cruikshank and permitting Exxon to
supplement its counterclaims are set forth. Finally, the
preliminary injunction enjoining Lee from approaching the
Service Station, the Linden Offices and Luciano and Cruikshank
is converted to a permanent injunction.
On or around 4 January 1990, Glenside received notice from
Exxon of Exxon's intention to terminate and not renew the
Franchise Agreement effective 15 April 1990. Amended Complaint
at 2. Exxon based its decision to terminate on Glenside's
failure to make timely rental payments for October and November
1989 and on Lee's alleged threat to injure Exxon's personnel
and damage its property. Amended Complaint.
On 3 April 1990, Glenside filed its Complaint for Preliminary
and Permanent Injunction, seeking to enjoin Exxon from
terminating the Franchise Agreement. See Complaint for
Preliminary and Permanent Injunction (the "Complaint"). It
withdrew its request for a preliminary injunction on 31 May
1990 and filed the Amended Complaint on 10 August 1990. See
Amended Complaint. The Amended Complaint now contains six
counts.*fn5 Count One alleges Exxon seeks to terminate the
Franchise Agreement with Glenside in violation of the PMPA,
15 U.S.C. § 2802. The remaining counts appear to be based on
violations of New Jersey law.*fn6
Exxon filed its Answer and Counterclaim on 30 April 1990, its
Answer to Amended Complaint and Counterclaims on 31 August
1990, and, with the consent of Glenside, the Supplemental
Answer to Amended Complaint and Counterclaims on 28 December
1990 (the "Supplemental Counterclaims"). In Count I (the "First
Counterclaim") of the Supplemental Counterclaims, Exxon alleges
the failure of Glenside to make timely rental payments for the
months September 1988 and April, October and November 1989,
August, September, October, November and December 1990 and
threats by Glenside against Exxon's personnel and property
constitute grounds for termination and nonrenewal pursuant to
15 U.S.C. § 2802(b)(2)(A), 2802(b)(2)(B) and/or 2802(b)(2)(C)
and 2802(c)(8). In Count II (the "Second Counterclaim"), Exxon
alleges it was entitled to possess the Service Station on 15
June 1990 under the terms of the Lease Agreement and seeks of
eviction of Glenside pursuant to its terms. In Count III, Exxon
alleges Glenside owes Exxon in excess of $13,000 for rent and
other items. Exxon seeks declaratory relief that its
termination and nonrenewal of the Franchise Agreement were
lawful under the PMPA, injunctive relief enjoining Glenside
from continuing to occupy and refusing to vacate the Service
Station, a judgment against Glenside for the
amounts due and owing and legal costs and attorneys' fees.
The allegation of threats by Lee against Exxon's personnel
and property is partly based on threats made by Lee in a
telephone conversation with Sharon Haggerty ("Haggerty"), the
office manager for the office of Luciano, the Exxon district
manager for the Linden district. Supplemental Counterclaims,
¶ 13. On 25 October 1989, Lee telephoned Luciano's office
"clearly in a rage" and requested to speak with him. Haggerty
Dec., ¶ 2. Haggerty informed Lee that Luciano was unavailable.
Lee stated "he wanted to resolve his problems with Exxon and
that if the problems were not resolved he would blow up Exxon's
Linden plant and kill Exxon personnel, including Cruikshank,
his business counselor, and Luciano." Id. Lee further informed
Haggerty that he had run his wife and two children out of his
house and that he had then destroyed everything in the house.
Id. Haggerty spoke with Lee approximately thirty to forty
minutes as she attempted, unsuccessfully, to calm Lee down.
In his deposition testimony, Lee did not deny having made
such threats to Haggerty during that telephone conversation.
Rather, he stated he did not remember the content of that
conversation because he was "drunk, intoxicated" at the time,
having drunk "[a] lot" of "beer, whiskey, everything . . ."
over a full day. R. Lee Dep. Tr. at 46. In her deposition
testimony, Dorothy Lee, Lee's spouse, testified Lee admitted to
her the day following the 25 October 1989 telephone
conversation he had threatened to blow up Linden's Exxon plant:
Q. You testified that the day after the October
25, 1989 phone call, Mr. Lee told you what he said
to Exxon; correct?
Q. And he told you that he had said that he was
going to blow up Exxon's Linden, New Jersey,
Q. Did Mr. Lee express my [sic] remorse about
having made that telephone call?
A. Yes. He said that he shouldn't have said that,
that he said it because he was mad, and plus he
had the drinks in him, and he shouldn't have said
that, and I said it too, "You shouldn't have said
that," and he also said, "Why did I say that? That
was a stupid thing for me to say."
D. Lee Dep. Tr. at 73.*fn8
Exxon served Glenside with a second notice of termination
after it learned that Lee had been convicted on a three-count
indictment on 7 February 1991. Following an incident unrelated
to the operation of the Service Station, Lee was tried and
convicted after a jury trial before the Hon. Betty J. Lester of
the Superior Court of New Jersey, County of Essex, for third
degree aggravated assault, possession of a weapon
and possession of a weapon for an unlawful purpose. Herman
Cert., ¶ 2.*fn9
It appears the conviction of Lee arises from events occurring
on 15 December 1989 at the Fireside Inn, a tavern owned by
Lee's father and located in Newark, New Jersey. Second Lee
Cert., ¶ 3. According to Carl J. Herman ("Herman"), counsel for
Lee in the criminal proceedings, Lee was convicted based on the
testimony of Rosalie Marrone ("Marrone"), a patron of the
tavern, as to an altercation between a patron of the tavern,
Frank Giacone ("Giacone"), Lee's brother, Billy Lee ("Billy"),
and Lee. Herman Cert., ¶ 5. Herman states Marrone "testified
essentially that Mr. Lee kicked Mr. Giacone once in the body
and further hit him once with a pipe in the body area when Mr.
Giacone was lying in a prone position on the floor after being
assaulted by Billy Lee."
Herman Cert., ¶ 5. Herman attaches to his certification the
statement Marrone gave the police, in which Marrone stated:
[Giacone] then went down on the first blow to the
head. Billy was ranting "I'll kill, I'll kill, Do
you want to see me go crazy. I'll go crazy." As he
was ready to hit Frank Giacone for the second time
I tried to get up and help him . . . I saw Billy
hit Frank for the second time. Billy was then
ready to hit him for the third time when I leaped
towards Billy to stop him from hitting Frank, and
the bat hit me. Then when I was leaning down to
see Frank, Billy hit him for a third time in the
head. . . . There was so much commotion going on.
. . . Bobby, Jr. [Lee] then walked over to where
[Giacone] was lying and hit his body with a pipe
and kicked him and called him a ". . . jerk off."
Then they proceeded to leave the scene of the
See Marrone Statement. Counsel for Exxon represents that
testimony at trial included testimony from Giacone's doctor
that "as a result of the attack, Mr. Giacone has suffered
severe and permanent injuries." Exxon PI Moving Brief at 5.
Counsel for Glenside did not deny at the 22 March 1991 Oral
Argument that such medical testimony took ...