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STAR ENTERPRISE v. APPLE VALLEY SERV. CTR.

February 1, 1995

STAR ENTERPRISE, Plaintiff, against APPLE VALLEY SERVICE CENTER, INC., d/b/a APPLE VALLEY TEXACO, JOSEPH P. GARADI a/k/a JOSEPH P. GARARDI d/b/a APPLE VALLEY TEXACO; and SPI PETROLEUM, INC., Defendants.


The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 The owners have filed for protection under the Bankruptcy Code and the case is not proceeding as to them. Both Star and SPI have moved for summary judgment on Star's claim of tortious interference with contract. Both motions are denied without prejudice.

 II

 Star and the owners entered into a petroleum supply agreement which states that it "shall remain in full force and effect from January 15, 1991 to January 14, 1999" and states that "Purchaser shall sell motor fuels purchased hereunder only under Texaco brand names . . ."

 A separate rider executed only by the owners and not by Star, dated January 4, 1991 states that the owners will receive specified allowances for each gallon of Texaco gasoline purchased and paid for during defined periods.

 By another agreement dated January 4, 1991, the owners acknowledge that Star has made $ 90,000 worth of improvements to the station, which the owners agree to pay, less $ 937.50 for each month prior to the date of transfer or discontinuance of the business. The $ 90,000 debt incurred by the owners for improvements is contained in a separate document which does not refer to any other agreement, nor is it referred to in any other agreement.

 No provision in any of the agreements provides that the owners must purchase gasoline exclusively from Star, Texaco, or any other source. The basic agreement provides that the owners shall "sell motor fuels purchased hereunder only under Texaco brand names . . ." (emphasis added). This contains no requirement that fuel "hereunder" be purchased at all, or that other fuel cannot be bought if sold under other names.

 III

 Failure of the agreements to contain any exclusivity provision cannot properly be ignored; wording which would constitute an exclusive arrangement is hardly difficult to frame. Absence of such wording when readily available can only be interpreted as absence of such intent. See Sea Robin Pipeline Co. v. FERC, 254 U.S. App. D.C. 137, 795 F.2d 182, 184 n 1 (DC Cir 1986) (R. Ginsburg, J.).

 Absent any exclusivity agreement, the owners would appear to have been free to drop Star as a supplier and select SPI or any other supplier of the owners' choice.

 To be sure, the owners would still owe unpaid portions of the $ 90,000 improvement loan due to Star, less any allowances earned and applied against the $ 90,000 and less the $ 937.50 monthly deductions. The $ 937.50 amounts earned under the deductions continues under the agreement until the owners sale or transfer of the business, and is not conditional upon purchase from Star. There is nothing in any document signed by the owners to preclude them from continuing to earn the $ 937.50 deductions or to obtain ...


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