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BRIERWOOD SHOE CORP. v. SEARS

October 21, 1980

BRIERWOOD SHOE CORPORATION, Plaintiff,
v.
SEARS, ROEBUCK, AND CO., Defendant



The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

By motion filed September 22, 1980, defendant Sears, Roebuck and Co. ("Sears") moved in this case for "partial" summary judgment pursuant to Rule 56, Fed.R.Civ.P.

 Plaintiff Brierwood Shoe Corporation ("Brierwood") is a Pennsylvania corporation which, when the action was filed on June 1, 1979, was engaged in manufacture of various types of men's, women's and children's shoes. It employed approximately 2,300 persons in 14 plants. Defendant Sears, a New York corporation, is a large retailer of general merchandise, including shoes.

 On October 3, 1971, Sears and Brierwood entered into a written basic buying agreement ("Agreement") whereby Brierwood agreed to manufacture and Sears to purchase various percentages of Sears requirements of men's, women's and children's shoes. Sears received the option to require Brierwood to manufacture and sell to Sears additional quantities of shoes pursuant to the terms of the Agreement. The Agreement set forth a procedure for production and ordering of the shoes, and also set forth a formula for determining the contract price of the shoes.

 On April 10, 1979 Sears gave notice that it would terminate the Agreement in October, 1980, pursuant to the terms of Paragraph 16 thereof. That notice gave rise to this litigation, consisting of three separate federal lawsuits. On May 30, 1980 this Court granted Brierwood's motion to consolidate three pending actions involving Sears, Brierwood, and Kleinert's, Inc. and to file a second amended complaint.

 Sears and Brierwood filed a consolidated pre-trial order on July 21, 1980 and argument on this motion for partial summary judgment was heard on October 1, 1980. Both parties have filed briefs and reply briefs.

 Subject matter jurisdiction exists under 28 U.S.C. § 1332, 15 U.S.C. §§ 15 and 26, and pendent jurisdiction. The parties have stipulated that the law of Pennsylvania governs the non-federal claims pleaded.

 The pre-trial order contains sixteen separate claims for relief by Brierwood.

 While Rule 56, Fed.R.Civ.P., authorizes a claimant or a defendant to move for summary judgment in a case as to "all or any part thereof," Rule 56 does not provide for a "partial" summary judgment that is a final judgment. See 6 Pt. 2 Moore's Federal Practice P 56.20(3.-2). Rather, in combination with Rule 16, Fed.R.Civ.P., which sets forth the procedure for formulating a pre-trial order, this Court will treat the motion for "partial" summary judgment in this case as a means of separating those claims which need to be tried from those which can be disposed of because they do not involve any relevant disputed factual issues.

 For purposes of this motion, we must accept the facts as alleged in the light most favorable to the non-moving party. We consider the separate points below.

 Prima Facie Tort

 Sears argues that Pennsylvania does not recognize a claim for prima facie tort, while Brierwood asserts the opposite. Both rely upon Tarr v. General Electric Co., 441 F. Supp. 40 (W.D.Pa.1977): In that case, a franchised dealer of General Electric ("GE") products had his franchise terminated by GE by non-renewal in accordance with the terms of the franchise agreement. Id. at 40. Plaintiff in that case claimed that it was terminated in retribution for having filed an antitrust action against GE. Id. at 40. The district court held that the plaintiff's claim set forth "damnum absque injuria." Id. at 42.

 Brierwood has cited no Pennsylvania cases which have recognized a cause of action for prima facie tort and the Court has been able to find none. Rather, as noted by the Tarr court, the Pennsylvania Supreme Court has stated:

 
"Malicious motives make an bad act worse, but they cannot make that wrong which, in its ...

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