author: DECKER, District Judge.

text:
    Craig S. STRAUSS, Plaintiff, v. CITY OF CHICAGO, etc., et al., Defendants.
    No. 83 C 6289.
    United States District Court, N.D. Illinois, E.D.
    June 20, 1984.
    Tom Leahy, Chicago, Ill., for plaintiff.
    Robert W. Fioretti, James D. Montgomery, Acting Corp. Counsel, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

DECKER, District Judge.

Plaintiff, Craig S. Strauss (Strauss), brought this suit against the City of Chicago (the City) and an unnamed police officer (Officer Doe). Strauss alleges that defendants violated his rights under 42 U.S.C. § 1983, the first and fourteenth amendments to the United States Constitution, and the constitution and statutes of the State of Illinois. The case is before the court on the City’s motion to dismiss for failure to state a federal claim. Strauss contests the motion only with respect to count I.

I. The Complaint

Count I alleges that Officer Doe arrested Strauss without probable cause on March 14, 1983. Complaint ¶ 5. Strauss also claims that Officer Doe struck him in the face. Strauss alleges the following with respect to the City:

a. Had a custom and practice of hiring persons such as Defendant JOHN DOE, whose prior history of brutality should have rendered them unacceptable for hire.
b. Had a custom or practice of allowing Chicago Police Officers, such as Defendant JOHN DOE, to remain cloaked with legal authority and employed as Chicago Police Officers, even though their experience on the job showed them to be brutal in nature and frequent violators of civil rights of persons in custody.
c. Had a custom or practice of allowing those in custody to be silenced by causing them to be beaten and physically abused.
d. Had a custom and practice of conducting investigations against police officers, by which said officers would be exonerated of any fault as a result of the investigative procedures employed by the police department; and which would result in the continued employment and cloak of authority upon brutal officers such as Chicago Police Officer John Doe. 8. As a proximate result of one or more of the aforesaid, Plaintiff Craig S. Strauss suffered and will continue to suffer injuries of a personal and pecuniary nature.

Id. at ¶¶1 7-8.

II. Discussion

In ruling on a motion to dismiss, the court must “take [the plaintiff’s] allegations to be true, and view them, together with reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff.” Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.1981). Dismissal for failure to state a claim is improper unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

A. Constitutional Claims

Strauss may not sue the City directly under the U.S. Constitution. Congress intended § 1983 to be the exclusive federal remedy for the unconstitutional actions of city officials. Williams v. Bennett, 689 F.2d 1370, 1390 (11th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983); Ward v. Caulk, 650 F.2d 1144, 1147-1148 (9th Cir.1981); Molina v. Richardson, 578 F.2d 846, 850-854 (9th Cir.), cert. denied, 439 U.S. 1048, 99 S.Ct. 724, 58 L.Ed.2d 707 (1978). The court dismisses count I insofar as it is based directly on the U.S. Constitution.

B. Section 1983

To prevail on his claim against the City under § 1983, Strauss must prove that the arrest and beating that he allegedly suffered resulted from an official policy or custom or usage of the City. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-691, 98 S.Ct. 2018, 2035-2036, 56 L.Ed.2d 611 (1978). “His complaint will withstand dismissal if the facts alleged, together with reasonable inferences to be drawn from them, could lead a reasonable factfinder to conclude that the actions of [Officer Doe] were the product of some policy or custom of [the City].” Powe, 664 F.2d at 650.

There is rampant disagreement in this District about the specificity required in pleading a § 1983 claim against a city, particularly whether a plaintiff can survive a motion to dismiss if he alleges only one unconstitutional act by city officials. Compare, e.g., Means v. City of Chicago, 535 F.Supp. 455, 457 (N.D.Ill.1982) (Marshall, J.), with Hamrick v. Lewis, 515 F.Supp. 983 (N.D.Ill.1981) (Aspen, J.). “The various approaches taken in these opinions evidence the court’s efforts to draw a principled line between the admittedly generous standards of federal notice pleading and the principle that a pleading is insufficient if it merely alleges'the conclusions of the pleader without any factual support.” Rivera v. Farrell, 538 F.Supp. 291, 294 (N.D.Ill.1982) (Aspen, J.).

Rivera draws that line between cases which involve affirmative unconstitutional policies of cities and those which involve such acquiescence in unconstitutional behavior that passivity itself becomes a “custom or usage” for which a city can be held liable under § 1983. For the first type of case, Rivera requires the plaintiff to allege “a single incident of unconstitutional conduct coupled with the supposedly unconstitutional affirmative policy that mandated such action____” 538 F.Supp. at 295 (footnote omitted). For custom or usage cases, Rivera requires a plaintiff to “plead the existence of such a pattern or practice by alleging, at least on information and belief, that he or others similarly situated were victimized on more than one occasion in the unconstitutional manner alleged in the complaint.” Id. at 297.

This dichotomy finds its roots in Monell. In that case, the Court stated that municipalities could be sued where the allegedly unconstitutional action “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” 436 U.S. at 690, 98 S.Ct. at 2035. Municipalities are also liable, however, “for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Id. at 690-691, 98 S.Ct. at 2035-2036. Section 1983 includes customs and usages because “[although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Id., quoting Adickes v. S.H. Kress and Co., 398 U.S. 144, 167-168, 90 S.Ct. 1598, 1613-1614, 26 L.Ed.2d 142 (1970). “Settled state practice ... can establish what is state law— Deeply embedded traditional ways of carrying out state policy ... are •often tougher and truer law than the dead words of the written text.” Monell, 436 U.S. at 691 n. 56, 98 S.Ct. at 2036 n. 56 (quoting Nashville, C. and St.L.R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254 (1940) (Frankfurter, J.)).

Strauss’ complaint cannot survive. He makes factual allegations only with respect to himself. See Complaint at MI 5-6. His allegations with respect to the City are conclusory: they claim, with no independent factual support, that the City had customs and practices which led to his injuries. Id. at ¶ 7. Strauss as easily could have alleged merely that the City is liable under § 1983. The court need not accept such allegations as true. See Mescall v. Burras, 603 F.2d 1266, 1269 (7th Cir.1979) (“In giving the pleadings a liberal construction, however, we are not required to accept legal conclusions either alleged or inferred from the pleaded facts.”). The court must dismiss this complaint because no reasonable factfinder could conclude from the facts alleged — that one individual suffered an unlawful arrest and beating— that the City had a custom or practice of such activity. Powe, 664 F.2d at 650. Without that custom or practice, the City cannot be liable under § 1983.

III. Conclusion

For the reasons stated above, the court grants defendant’s motion to dismiss, and this case is hereby dismissed.

      . See Plaintiffs Mem. in Opposition to Motion to Dismiss at 6-7. Count II seeks punitive damages from the City, while Counts III and IV seek to impose vicarious liability on the City for Officer Doe’s actions. Strauss may not recover punitive damages against the City. Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Counts II and IV are, at best, state law causes of action which could survive only as pendent to Count I. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).


source: Caselaw Access Project

license: Public Domain

text:
    Dean A. MATTHEWS, Plaintiff, v. ALLIS-CHALMERS, Defendant.
    No. 83 C 7843.
    United States District Court, N.D. Illinois, E.D.
    Sept. 5, 1984.

      Gerald C. Moton, Homewood, Ill., for plaintiff.
    Nina Stillman, Edward Jepson, Jr., Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

DECKER, District Judge.

Plaintiff, Dean Matthews (Matthews), brought this suit against his former employer, Allis-Chalmers Corp. (Allis-Chalmers or the company). Matthews claims that Allis-Chalmers violated the Age Discrimination in Employment Act (ADEA) when the Company fired him from his position as an engineer in November, 1982. The case is before the court on defendant’s motion for summary judgment.

I. Factual Background

Allis-Chalmers hired Matthews as a designer in 1957. The company promoted him to engineer and twice promoted him to Chief Engineer, only to demote him back to engineer after each promotion. Matthews was always on salary. On November 12, 1982, Matthews’ supervisor, Richard Killeen (Killeen), fired Matthews. Killeen told Matthews that the discharge was for economic reasons. Matthews was 54 years old.

Between January 4, 1980, and December 30, 1983, Allis-Chalmers reduced its salaried work force by 221. Eighty of these were forty or older. Matthews’ termination came on the same day on which the Company discharged thirteen other employees. Six of these were over 40.

Matthews complains only of his firing. Matthews Dep. at 40. He testified at his deposition that only Ed Northrup (Northrup), a supervisor at Allis-Chalmers, discriminated against him on the basis of his age: “My belief is that Ed Northrup. This I have no evidence to back up, this is my belief.” Id. at 41. Matthews bases his opinion on two other “facts”: that he would have been eligible for early retirement at 55, id. at 53, and that “they [Allis-Chalmers] have done the same thing to other people.” Id. at 43. Matthews knew nothing else that led him to believe that Allis-Chalmers had discriminated against him. Id. at 46.

II. Discussion

In setting forth the elements of a prima facie case of age discrimination, the United States Court of Appeals for the Seventh Circuit has applied the standards of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). Green was a ease of alleged racial discrimination in hiring. The Court held that the elements of a prima facie case are that the plaintiff belongs to the protected class, that he was qualified for the job, that he was not hired, and that the employer continued to seek applicants for the job. 411 U.S. at 802, 93 S.Ct. at 1824. The Court added the caution that “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.” Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13.

In age discrimination discharge cases, courts have required the plaintiff to show that he is in the protected age group, that he was satisfying the legitimate business expectations of the employer, that he was nevertheless fired, and that he was replaced by a younger person. See, e.g., Loeb v. Textron, 600 F.2d 1003, 1014 (1st Cir.1979). The last element has no role in a reduction-in-force case such as this one; by definition, when the employer reduces his work force he hires no one to replace the ones he lets go. See Williams v. General Motors Corp., 656 F.2d 120, 128 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). The question is whether to require plaintiffs to show more than their age, qualifications, and termination.

The purpose of a prima facie case is to eliminate the most common nondiscriminatory reasons for the plaintiffs discharge. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). “[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not that the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.” Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The focus of the prima facie case is on causation: the plaintiff must show enough to make it appear more likely than not that age was a factor in the discharge. See Huhn v. Koehring Co., 718 F.2d 239, 243 (7th Cir.1983) (“[T]o establish a cause of action under the ADEA, a claimant must show that he was discriminated against because of his age”).

Unlike the employer who passes over a qualified minority applicant, the employer who fires a qualified older employee as part of a reduction-in-force does nothing inherently suspicious. One expects nondiscriminating employers to hire qualified applicants rather than keep looking. To do otherwise raises a fair inference of discrimination. In the reduction-in-force case, the employer often must discharge qualified employees. The nondiscriminating employer will choose whom to discharge on the basis of their relative contributions to the business. That the one chosen happens to be older by itself raises no fair inference of discrimination — those who remain may be more productive. The age discrimination plaintiff in this type of case must show more.

One court which has faced the question required the plaintiff to show “some other indirect evidence from which a logical inference of discrimination can be made ... [s]uch [as] statistics showing a pattern or practice of age discrimination or statements indicating that age was a factor in the employment decision.” Bobbitt v. PBA, Inc., 31 FEP Cases 366, 367 (D.Minn.1983). This is a reasonable burden to place on the plaintiff. Again, he is not entitled to recover unless he can prove that he was fired because of his age. Huhn, 718 F.2d at 243. He simply must show some evidence of causation.

Matthews points to no discriminatory statements by Allis-Chalmers employees. Statistics show that Allis-Chalmers’ reduction in force affected younger employees more severely than older ones, particularly in Matthews’ Department. Exhibits A and B to Defendants’ Motion for Summary Judgment. Matthews identifies no less productive younger employees whom Allis-Chalmers retained instead of him.

Matthews argues that he has made out a prima facie case and contends that two questions of material fact exist. Both relate to whether Killeen applied in good faith his stated criteria in deciding whom to retain. If Matthews could show that by the company’s own criteria he should have kept his job, that would be some evidence that age was a factor in the decision to fire him. Matthews, however, fails to make this showing.

Killeen testified that he chose one engineer, a Mr. Artwohl (Artwohl), over Matthews because Artwohl generally was better at completing projects on schedule and within budget. Killeen Dep. at 82. Specifically, Killeen testified that Matthews failed to discover and fix design problems with the “World Truck Mast” project. Id. Killeen personally observed the defects in the design. Id. at 54. According to Killeen, Artwohl demonstrated his superior ability by solving the mast problem which Matthews failed to notice. Id. at 82.

Matthews argues that this “reason” for choosing Artwohl over him is a fabrication because when Killeen fired Matthews he could not have known that Artwohl had solved the problem. No evidence supports this conclusion. Matthews points only to documents which show that the company continued to test the new mast design after Matthews left. E.g., Killeen Dep. Ex. 1-K. Matthews does not dispute, however, that Artwohl had completed the redesign, and that Killeen knew that he had done so, before Killeen decided to fire Matthews. Plaintiff apparently argues that Killeen could not rely on the apparent superiority of Artwohl’s redesign until the later tests confirmed it (as they apparently did).

Killeen was under no duty to wait. “The Age Discrimination in Employment Act ... was not intended as a vehicle for judicial review of business decisions.” Kephart, 630 F.2d at 1223. Matthews’ performance on the mast project relative to Artwohl’s was a legitimate basis for deciding whom to keep. When Artwohl completed the redesign, Killeen judged it superior to the defective design which Matthews failed to detect and correct. Nothing indicates that his decision involved anything other than his business and professional judgment. That was his call to make. The court refuses to require employers to double-check their evaluations of employees’ relative skills.

Matthews next argues that Killeen should not have considered Matthews’ managerial abilities when he decided to fire Matthews. See Killeen dep. at 52. Killeen testified that he considered technical abilities and the “administration of such technical competence in engineering a product that is functional, safe, marketable, and profitable.” Killeen Dep. at 10. Administration, with an eye to the bottom line, is what most managers do. Matthews’ managerial shortcomings thus were relevant to Killeen’s stated criteria. Matthews also argues that the remaining jobs in his department required no managerial skills. The court cannot substitute its judgment for the company’s as to what business skills particular jobs require. Kephart, 630 F.2d at 1223.

The court need go no further. Matthews fails to provide any evidence from which the court can infer that Allis-Chalmers more likely than not fired him because of his age. He has not established his prima facie case.

III. Conclusion

For the reasons stated above, the court grants defendant’s motion for summary judgment and enters judgment for the defendant. Plaintiff shall bear defendant’s costs.

      . Matthews raises other “issues,” but none is worthy of extended discussion.
      Matthews contends that Killeen should have used Matthews’ progress evaluations in deciding whom to fire. Killeen was free to rely on his personal observations of Matthews’ abilities rather than older evaluations by others. Matthews also argues that a dispute exists whether Killeen knew Matthews’ age when he fired him. The company does not contend that Matthews’ age was unknown to it or its supervisors. The only material issue is whether that admitted knowledge played any role in the company’s decision. Even if Killeen had known Matthews’ precise date of birth, that fact alone would not be evidence that Matthews’ age was a factor in his decision.


author: DANIEL HOLCOMBE THOMAS, District Judge.

text:
    In the Matter of the Complaint of HERCULES CARRIERS, INC., for exoneration from or limitation of liability as owner of the M/V Summit Venture.
    No. 80-563-Civ-T-GC.
    United States District Court, M.D. Florida, Tampa Division.
    Sept. 14, 1984.
    Dewey R. Villareal and Carl Nelson, Tampa, Fla., for Hercules Carriers.
    G. Morton Good, Miami, Fla., Richard Rumrell, Jacksonville, Fla., David G. Hanlon and Benjamin H. Hill, Tampa, Fla., for DOT.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

DANIEL HOLCOMBE THOMAS, District Judge.

The above styled ease was heard by the Court without a jury commencing on May 21, 1984, and ending on May 25, 1984. The evidence was concluded by one deposition on May 29, 1984, which was submitted to the Court for consideration. After having heard all of the evidence, examining the exhibits, pleadings, stipulations, and Proposed Findings of Fact and Conclusions of Law submitted by all parties, the Court makes the following Findings and Fact and Conclusions of Law as to the damages sustained by the Department of Transportation, State of Florida, (hereinafter DOT) as a result of the collision of the M/V SUMMIT VENTURE with the Sunshine Skyway Bridge on May 9, 1980.

FINDINGS OF FACT

1. At or about 0734 on May 9, 1980, the M/V SUMMIT VENTURE struck the Sunshine Skyway Bridge located at the entrance to Tampa Bay. On May 12, 1980, Hercules Carriers, Inc. (hereinafter Hercules) as owner of the M/V SUMMIT VENTURE, filed its complaint pursuant to 46 U.S.C. § 183, et seq. and Rule F, Supplemental Rules, for certain admiralty and maritime claims, praying in the alternative for either exoneration from or limitation of liability with respect to all claims for damages which might be asserted against the vessel and/or Hercules arising out of the collision. Numerous claims were also filed for wrongful death, personal injury and property damage, as well as counterclaims and cross-claims against various parties. Prior to this trial, some of the above claims were determined by the Court, namely:

(a) This Court denied Hercules’ claim for exoneration from or limitation of liability, holding that Hercules is liable for all damages resulting from the collision of the M/V SUMMIT VENTURE with the Sky-way Bridge.

(b) Upon completion of the limitation trial, the Court next elected to try all wrongful death and personal injury claims which now have all been resolved by trial or settlement.

The Court next set this matter down for trial. The trial included the following issues:

(a) The damages, if any, sustained by the DOT as a result of the M/V SUMMIT VENTURE striking the Skyway Bridge.

(b) Whether the DOT was negligent in designing and/or protecting and/or maintaining the bridge, and if so, whether such negligence was a contributing cause to the collision or to the damages sustained to the bridge.

The trial did not include, by stipulation of the parties with the consent of the Court, the following issues:

(a) Hercules’ counterclaim for damages';

(b) Hercules’ claim that the DOT was negligent in failing to provide proper aids to navigation;

(c) Hercules’ claim that the State of Florida negligently hired and/or retained Pilot Lerro;

(d) Hercules’ claim that the DOT should have had a device on the bridge to warn motorists in the event the bridge failed. The above issues will be set for trial at a later date. At the conclusion of that trial, a judgment will then be issued with respect to the State’s claim.

2. To the extent pertinent, the facts stipulated to by the parties and incorporated in this Court’s Findings of Fact and Conclusions of Law dated March 14, 1983 (See 566 F.Supp. 962 (S.D.Ala.)) are reincorporated herein as if fully set forth.

3. The Sunshine Skyway Bridge is a twin bridge toll facility and carries U.S. Route 19 and Interstate Route 275 traffic over and across Tampa Bay. The entire bridge is approximately five miles in length with the remaining 10 miles made up of causeway and land highway.

4. The main ship channel is spanned by a bridge approximately 5,621 feet in length, with the main channel clearance being 800 feet and a minimum vertical clearance of 141.6 feet above the water.

5. The bridge consists of a three-span steel cantilever truss with a center span of 864 feet flanked by 360 foot anchor arms on either side for a total length of 1,584 feet. The cantilever truss spans are supported on four concrete piers designated as IN and 2N on the Northside of the main channel and IS and 2S on the Southside. The remainder of the bridge consisting of two 289 foot 3 inch deck trusses, six 140 foot steel girder spans and six 100 foot steel girders were not involved in this collision. Exhibit A attached to these findings illustrates the relevant portions of the bridge.

6. The bridge is made up of a two lane northbound span and a two lane southbound span. These two spans are separated by a distance of approximately 100 feet. It was the southbound span that was struck by the M/V SUMMIT VENTURE. The northbound span was only slightly damaged.

7. On May 9, 1980, the bow of the M/V SUMMIT VENTURE collided with Pier 2S of the southbound span. The initial impact was between the flared bow of the ship and the west column of Pier 2S. Almost simultaneously the bulbous bow of the vessel hit the pedestal of Pier 2S. As a result, both east and west columns of Pier 2S collapsed and 1,261 feet of the superstructure fell into the bay below. This included the south anchor span from Pier 3S to Pier 2S, the south cantilever span, and the drop-in span, as indicated in Exhibit A.

8. Within seconds after the bulbous bow hit the pedestal, the vessel deflected to port causing it to scrape alongside Pier 2S.

9. The DOT elected to construct a new four lane span, rather than to rebuild the damaged southbound span.

10. The Court finds that any repairs if made to the portion of the bridge damaged by the M/V SUMMIT VENTURE would not extend the overall useful life of the bridge, nor would they enhance its value. The Court further finds that the repairs, if made, would put the bridge back to its pre-collision condition.

11. As a result of the collision, the Coast Guard ordered the DOT to immediately clear the channel in order to reopen the harbor to vessel traffic.

12. Because of the numerous and varied claims for damages, the Court will make special findings of fact for each element of damages claimed.

BRIDGE REPAIR — PROPERTY DAMAGE

13. The Court finds that actual loss and damage sustained by the DOT to the superstructure of the southbound span as a result of the collision of May 9, 1980, was as follows:

(a) The entire span between 2S and 3S, the entirety of the anchor span between 2S and IS, and a part of the southern portion of the cantilever structure extending from Pier IN over the channel were destroyed and would have to be rebuilt in their entirety.

(b) The deck trusses and various members between Piers 3S and 4S were damaged and would have to be repaired or replaced.

(c) A portion of the bridge extending north from Pier IN was damaged and would have to be replaced or repaired.

(d) All navigation and aerial lights plus the connecting conduits were destroyed and would have to be replaced.

14. The Court finds that the damage to the substructure of the southbound span as a result of the collision was as follows:

(a) Pier IN: New cracks were found on the western portion of the top of the pier with both vertical and horizontal displacement. The necessary repairs would involve the installation of a concrete collar completely surrounding the pier cap to contain the cracks and re-establish the integrity of the pier. The Court finds the installation of this collar was necessary.

(b) Pier IS: Old cracks in the pier shaft which existed before the collision were aggravated by the collision. New cracks were found in the upper East/West buttresses as well as the cracks on the lower buttresses caused by falling metalwork. The pier cap was found to have numerous new spalls and new cracks. The Court finds as a matter of fact, that to repair this damage, both shafts and the cap should be replaced.

(c) Pier 2S: The Court finds that Pier 2S took the brunt of the impact from the collision. This resulted in the complete destruction of the pier cap and both shafts. The Court is of the opinion that the supporting piles were moved as a result of the impact with the vessel. In support of the Court’s position relating to the damage and the replacement of Pier 2S, the Court further finds as matters of fact, the following:

(1) The 114 pilings supporting the pier were made of prestressed concrete. If the pilings moved lh inch or more, some or all of the pilings would fracture. Further, if this occurred, the entire pier and pilings would have to be replaced to ensure safe passage across the bridge.

(2) The physical evidence demonstrates that the bulbous bow area of the vessel struck the pedestal with considerable force. There was paint on the pedestal which matched the paint on the hull of the vessel. There were large impact areas on the bulbous bow and at midship which were at the same level as the pedestal.

(3) A survey of the alignment of all of the piers supporting the southbound span demonstrated that 2S was not in alignment with other piers and this lack of alignment was consistent in direction with the movement of the vessel.

(4) All experts at trial seemed to agree, and the Court so finds, that the remaining portion of the pier (bottom buttresses and pilings) could not be reused without establishing that piles had not fractured. In order to make that determination, substantial testing would have to take place. Both sides were in agreement that the cost of the tests, if a viable test exists, would exceed the cost of replacing the piles.

(d) Pier 3S: Minor new spalls were found on the pier cap, the pedestal and the foundation. These spalls had to be grouted.

15. There were minor spalls found on the west shaft of Pier IS (northbound). These spalls also had to be grouted.

16. Minor spalls were found on the east shaft of Pier 2S (northbound). These spalls had to be grouted.

17. The Court’s findings with regard to the damage to Pier IS and 2S on the northbound bridge are supported by the evidence and testimony of the experts and are not contested by Hercules.

18. Mr. Chester Grimsley testified for the DOT as to the reasonable cost of repairing the physical damage to and replacing those parts which had to be replaced on, the southbound span. Mr. Grimsley estimated the cost of this repair was $13,-634,719.00. The Court adopts this figure as to the reasonable cost of repairing the southbound span. This estimate includes painting and replacing of many deteriorated missing parts. At the time of the collapse of the bridge, the DOT had contemplated doing this painting and replacing in the near future. The cost of the painting and replacing will be treated later in this finding.

19. The Court finds the reasonable cost of repairs to the piers of the northbound span (Pier IS and Pier 2S) is $25,000.00. This figure is not contested by Hercules.

BRIDGE REPAIR — CONTINGENCIES

20. The Court is aware that in every large project, certain contingencies must be made for the unexpected. The repair of the Skyway Bridge is an example of such a project. The DOT offered evidence at trial of these contingencies based on its historical construction data. While some additional funds may be required for contingencies, the Court did not find particularly probative the DOT’s statistically developed percentage, based on the average of all construction jobs, in connection with this extraordinary operation. The Court finds 5% to be a more reasonable figure and further finds that a reasonable amount for contingencies is $681,736.00.

BRIDGE REPAIR — ENGINEERING AND INSPECTION OF CONSTRUCTION

21. The DOT’s historical construction data reflects that in every major construction project, the DOT experiences engineering and inspection costs of 10% of the construction contract. These costs reflect the costs of engineers and inspectors either from the DOT or from outside consultants. The Court does not find the DOT’s historical construction data probative. The Court is of the opinion that 6% of the construction contract or $858,987.00 would be a more reasonable amount with regard to this particular project.

BRIDGE REPAIR — ADMINISTRATIVE COSTS

22. The Court finds that the DOT is not entitled to an award for administrative costs as to this phase of the work.

DEBRIS REMOVAL — HARDAWAY CONTRACT

23. As a result of the collision, at least 1261 lineal feet of the steel superstructure and road bed, several vehicles including a bus, and portions of the damaged concrete piers were in the water. Much of this debris was in the only shipping channel in and out of Tampa Bay. The remainder of the debris was entangled around the remnants of the piers of the southbound bridge and was resting against two of the northbound piers. The Court finds that time was of the essence and that removal of the bridge debris required immediate resolution by the DOT.

24. To remove this debris and wreckage from the channel and the surrounding waters, DOT immediately following the collision entered into a contract with Hardaway Constructors, Inc. Hardaway, the contractor for the southbound bridge when it was constructed in the late 1960’s, had a Tampa office and was readily available and able to perform this work.

25. The debris was first surveyed by engineers and divers. The survey revealed that much of the debris was large in size, entangled, and potentially unstable. For safety and economy the DOT’s experts concluded that the debris should be cut to a safe, manageable and stable size, and then removed. For this operation, Hardaway had to use several barges, cranes and other construction apparatus. The Court finds that under the special circumstances presented here, the time required for debris removal, 78 days, and the amount paid by the DOT to Hardaway, $3,238,599.00, was necessary and reasonable.

DEBRIS REMOVAL — MELBOURNE BROS.

26. After the collision, four sections of the cantilever arm of the superstructure were left extending 252 feet over the main shipping channel southward from Pier IN. Because of the possibility that this protruding metal work may break loose and strike the northbound span or create further problems for vessels passing through the main channel, the DOT removed 180 feet of the protruding section. The DOT contracted with Melbourne Bros, to perform this work. Melbourne Bros, charged the DOT and the DOT paid $231,507.00, which the Court finds reasonable.

DEBRIS REMOVAL — ENGINEERING AND INSPECTION OF CONSTRUCTION

27. The Court is of the opinion that the debris and metal removal work performed by Hardaway and Melbourne Bros, required very little, if any, supervision and inspection by the DOT personnel. The Court feels that supervision and inspection of the debris removal by the DOT was included in the original contracts between the DOT, Hardaway and Melbourne Bros. The Court feels that any award for supervision and inspection by the DOT would result in double recovery to the DOT.

DEBRIS REMOVAL — ADMINISTRATION

28. The Court finds that the DOT is entitled to 1% of the Hardaway and Melbourne Bros, contracts combined for administration of the debris removal. The Court further finds that amount to be $34,-701.00.

MAINTENANCE OF TRAFFIC — MIKE HUNTER, INC. & JOHN DANIELS PAVING

29. Since shortly after the accident, southbound traffic has been routed over the remaining original span, which had been carrying only northbound traffic.

30. The DOT contracted with Mike Hunter, Inc. and John Daniels Paving to place signs, barricades, and to pave the detour to re-route the bridge traffic from the southbound bridge to the northbound bridge following the collision. All parties agreed that the work performed, the charges rendered, and the amount paid by the DOT to Mike Hunter, Inc. and John Daniels Paving were necessary and reasonable. The Court, therefore, finds that the amount paid, $174,496.00, was reasonable.

MAINTENANCE OF TRAFFIC — ENGINEERING AND INSPECTION

31. The Court finds 6% of the Mike Hunter, Inc. and John Daniels Paving contracts combined to be a reasonable figure for any engineering and inspection by the DOT relating to the maintenance of traffic. The Court further finds 6% of those contracts to be $10,470.00.

MAINTENANCE OF TRAFFIC — ADMINISTRATION

32. The Court finds 3% of the Mike Hunter, Inc. and John Daniels Paving contracts to be a reasonable award for any administrative costs incurred by the DOT in the maintenance of traffic after the collision. The Court finds this amount to be $5,235.00.

MAINTENANCE OF TRAFFIC — STATE FORCE

33. According to the testimony, immediately after the collision the DOT worked its personnel around the clock to establish a detour for bridge traffic. They erected the signs supplied by Mike Hunt, Inc., established proper lighting, and set up the barricades. Once this emergency work was completed, the DOT was required to maintain the detour, including constant replacement of signs, lighting, barricades, and the like. The Court finds the reasonable costs of this work by the DOT over the 27 months required to repair and rebuild the bridge was $138,900.00.

LOSS OF TOLL REVENUE

34. As a result of the collision, the revenue from the southbound toll bridge was substantially affected. To determine the Dot’s loss of toll revenue for the 27 month period required to repair and rebuild the bridge, the Court has considered the actual history of earnings for the bridge prior to the collision, the actual traffic flow before the collision, the DOT’S experience with other toll facilities before and after the collision, the actual experience with the Sunshine Skyway toll revenue and traffic following the collision, projection of losses of revenue based upon these data, and studies that determined the reasons why persons used the bridge. The Court finds that the data, projections, and studies relied upon by the DOT reasonably and accurately reflect its loss of toll revenues. The Court, therefore, finds that the loss of toll revenue proximately caused by the collision was $758,119.00.

PRELIMINARY ENGINEERING

35. As a result of the collision, the DOT was required to evaluate the extent and nature of damage to the bridge. For these purposes the DOT retained Howard, Needles, Tammen and Bergendoff; Byrd, Tallamy, McDonald and Lewis; and Heidt and Associates. From these studies, the DOT compiled the data necessary to solicit bids to repair and rebuild the bridge. The DOT paid Howard, Needles, Tammen and Bergendoff, $329,000 for its work in evaluating the damage to the piers. The DOT likewise paid Byrd, Tallamy, McDonald and Lewis, $100,000 for its work in evaluating the damage to the bridge and providing a cost estimate for repair and replacement. Heidt and Associates was paid $30,000 to perform survey work to determine the alignment of the piers. The Court finds these costs reasonable and awards the DOT $459,000 for preliminary engineering expenses.

DESIGN, PIER PROTECTION AND MAINTENANCE

36. Hercules offered testimony at trial regarding the design, pier protection and maintenance of the southbound span of the Skyway Bridge. The gist of Hercules’ testimony was that the design of the bridge was improper; the absence of pier protection caused the bridge to collapse upon collision; and that the DOT failed to properly maintain the bridge and this improper maintenance either caused or substantially contributed to the ensuing damages.

37. The Court finds that the design and construction of the cantilever southbound span was reasonable for its intended purposes of accommodating both vehicular traffic and waterborne traffic. The Court also finds that the location of the southbound bridge did not create an unreasonable obstruction to navigation. Hercules failed to present any evidence that the design of the bridge contributed to the collision or to the extent of damages. The Court therefore finds that the design of the southbound bridge was reasonable and did not cause or increase the damages to the pier.

38. Pier 2S was one of the 30 non-channel piers. It was located 800 feet from the center line of the channel. The Court finds the DOT was reasonable in not providing pier protection for Pier 2S (southbound) and the other 29 non-channel piers.

39. The Skyway Bridge requires maintenance as do all bridges spanning salt water in Florida. According to the evidence, the Sunshine Skyway Bridge was in need of several repairs prior to the collision of May 9, 1980. Reports of regularly scheduled inspections performed by or on behalf of the State indicated that major repairs in the form of repainting of the steel superstructure, correction of corrosion, and replacement of missing bolts in the steel structure were needed. The Court finds that the above maintenance would have been forthcoming but for the collision. Hercules’ expert testified that $1,100,000 would have been required to complete the repainting of and repair work necessary to preserve and maintain that part of the bridge damaged in the accident. The DOT expert testified that $736,000 would have been required to perform the same work. The Court finds the testimony of each expert to be persuasive, but finds the figure of $1,000,000 as reasonable for such repairs.

40. The Court also finds that neither the state of disrepair nor the lack of proper maintenance caused or contributed to the resulting damage to the bridge. Expert witnesses on both sides testified that the damage to the bridge would have been the same if the collision had occurred the day after the span had been constructed. The Court finds absolutely no causal connection between the maintenance and the collision or the resulting collision damages.

CONCLUSIONS OF LAW

1. This court has jurisdiction of the subject matter, in admiralty, and over all the parties and their claims, pursuant to 28 U.S.C. § 1333 and 46 U.S.C. § 185 (1976).

2. The Court has made detailed findings concerning the accident, the collapse of the bridge, and the damages suffered by the State of Florida as a result of the accident of May 9, 1980. To the extent that these findings also constitute legal conclusions, they are incorporated herein.

3. The damage issues are decided under federal law rather than state law because the cause of action arises under general maritime law. Freeport Sulphur v. The S/S Hermosa, 526 F.2d 300, 1977 AMC 508 (5th Cir.1976).

4. The legal measure of damages for rebuilding and repairing the Sunshine Skyway Bridge, to which the parties have agreed, is the cost of restoring the bridge to its condition immediately prior to the collision of May 9, 1980. Barger v. Hanson, 426 F.2d 640 (9th Cir.1970); McCormick, Damages, 560 (1935). The DOT is also entitled to recover consequential damages including loss of toll revenue, cost of constructing and maintaining the detour, and the cost of debris removal. Expenses which naturally and reasonably follow from an injury to property are proper items of recovery. South Carolina State Highway Department v. United States, 78 F.Supp. 598 (E.D.S.C.1948), aff'd 171 F.2d 893 (4th Cir.1948); US. v. State Road Department of Florida, 189 F.2d 591 (5th Cir.1951).

5. The Sunshine Skyway Bridge was not repaired or rebuilt because the DOT decided to build a new four-lane structure rather than repair the old bridge. Even though actual repairs were not made, the Court concludes as a matter of law, that the DOT is entitled to compensation for its damages based upon estimated repair costs. Bleakley Transport Co. v. Colonial Sand & Stone Co., 245 F.2d 576 (2d Cir.1957).

6. Based on the foregoing findings of fact, the Court now enumerates the following damages:

REPAIRS TO THE NORTHBOUND SPAN

The Court finds that the DOT is entitled to $25,000 to repair damage to the north span.

REPAIRS TO THE SOUTHBOUND SPAN

The State is entitled to recover for repair of the bridge as follows:

1. Repair of the bridge $13,634,719.00
2. Contingencies — 5% 681,736.00
3. Engineering and Inspection of Construction — 6% 858,987.00
TOTAL BRIDGE REPAIR $15,175,442.00

DEBRIS REMOVAL

The State is entitled to recover the following for debris removal:

1. Paid to Hardaway Constructors, Inc. $3,238,599.00
2. Paid to Melbourne Bros. 231,507.00
3. Administrative costs. 34,701.00
TOTAL DEBRIS REMOVAL $3,504,807.00

MAINTENANCE OF TRAFFIC

The Court concludes that the State is entitled to recover $190,201.00 for maintenance of traffic and detour.

The Court further concludes that the State is entitled to recover $138,900.00 for work done by the DOT in maintaining the detour over the 27 months required to repair and rebuild the bridge.

LOSS OF TOLL REVENUE

The Court has found the evidence relating to the loss of toll revenue credible. The Court, therefore finds that the State is entitled to recover $758,119.00 for loss of toll revenue.

PRELIMINARY ENGINEERING

The Court found as a matter of fact that several outside engineering firms were retained by the State shortly after the disaster in an effort to assess the damage to the Skyway Bridge. The Court found that the only evidence of actual expense associated with preliminary engineering were the amounts paid to Howard, Needles, Tammen and Bergendoff, $329,000; Byrd, Tallmy, McDonald and Lewis, $100,000; and Heidt and Associates, $30,000. The State offered no evidence as to the actual expenses incurred by the State for preliminary engineering. Therefore, the Court finds that the State is entitled to $459,000.00 for preliminary engineering to cover amounts already paid.

PIER PROTECTION, DESIGN AND MAINTENANCE

The Court finds that the DOT was not negligent in failing to provide pier protection.

The Court further finds that the bridge was properly designed. The bridge was fit for its intended purpose, that is, to transport vehicular traffic across Tampa Bay while at the same time accommodating waterborne traffic beneath it. The Court also concludes that it was not a legal obstruction to navigation having been built pursuant to all applicable rules and regulations promulgated by the Corps of Engineers and other interested agencies.

The Court has found that the maintenance of the bridge or lack thereof, did not cause or contribute to the damage sustained by the State when the bridge fell after collision. The Court also found that the State was entitled to recover only the value of the bridge immediately prior to the accident. The Court finds that $1,000,-000.00 would have been required to perform the necessary repair and maintenance work to that part of the span which was damaged in the accident and further concludes that the damages recoverable by the State for the cost to repair the bridge shall be reduced by that amount.

PREJUDGMENT INTEREST

7. Prejudgment interest should be awarded in admiralty cases not as a penalty, but as a compensation for the use of funds to which the claimant was entitled. Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir.1980). An award of prejudgment interest “... although within the Court’s sound discretion, is well-nigh automatic in suits in the admiralty.” Masters v. Transworld Drilling Co., 688 F.2d 1013, 1014 (5th Cir.1982). To deny prejudgment interest the Court must find circumstances that would make it inequitable for the losing party to pay prejudgment interest. Inland Oil and Transport Co. v. Ark White Towing Co., 696 F.2d 321 (5th Cir.1983).

The Court concludes that the DOT is entitled to prejudgment interest at the rate of 9.98% per annum from May 9, 1980, on the following items:

Hardaway Contractors $3,238,599.00
Melbourne Bros. 231,507.00
Debris Removal 34.701.00
Mike Hunter, Inc. 78.017.00
John Daniels Paving 96,479.00
Howard, Needles, Tammen & Bergendoff 329,000.00
Byrd, Tallamy, McDonald & Lewis 100,000.00
Heidt and Associates 30,000.00
Maintenance Work on Detour 138,900.00
Maintenance 15,705.00
Loss of Toll Revenue 758,119.00
TOTAL $5,051,027.00

In making this finding, the Court is not ruling out the possibility that there are other items for which the DOT should be paid prejudgment interest. Ruling on these other items is reserved until final judgment is entered in this case.

CONCLUSION

8. The Court finds and concludes that the State of Florida is entitled to damages in the amount of $20,251,469.00 as a result of the collision of May 9, 1980. The above sum is to be offset by $1,000,000.00, a sum the DOT would have been required but for this accident to have expended on the maintenance of the collapsed structure.

A final judgment consistent with these findings of fact and conclusions of law shall be entered after trial on the remaining issues of the counterclaim by Hercules.

      . See Findings of Fact Nos. 30, 31, 32.

      . See Finding of Fact No. 33.


author: THOMAS F. HOGAN, District Judge.

text:
    UNITED STATES of America v. Curtis E. SMITH.
    Crim. No. 84-266.
    United States District Court, District of Columbia.
    Sept. 18, 1984.

      Pamela B. Stuart, Asst. U.S. Atty., Washington, D.C., for plaintiff.
    Stephen Goldblatt, Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

THOMAS F. HOGAN, District Judge.

This matter is before the Court on defendant’s Motion to Suppress, as fruits from an illegal stop and warrantless arrest and search, all physical evidence seized by the police at the time of defendant’s arrest on July 1, 1984, which included a double-barrel shotgun and a number of bags of marijuana. An evidentiary hearing was held by the court. Upon consideration of the evidence adduced, the motion and supporting memoranda submitted by the parties, the arguments of counsel, and based upon the findings set forth, the motion will be denied.

Facts

On July 1, 1984, at approximately 6:50 P.M., two U.S. Police officers, Officers Lawston and his rookie trainee associate, patrolling Rock Creek Park in a marked police cruiser, observed a red Ford Pinto parked illegally in the middle of the entrance roadway to the Park Road tennis courts. The tennis court drive is located within blocks of a high drug sale and use area. The tennis court area is frequented by drug users.

At the time the officers approached defendant’s car, it was still light outside, there was good visibility and the tennis courts were in use. As the officers drove up, they observed that the doors and the hatchback of the car were all open and that it was occupied by three individuals. When the cruiser approached the rear of the defendant’s automobile, the passengers quickly turned around and saw the officers. The occupant in the driver’s seat then immediately bent forward as if to hide something under the front seat. The officers alighted from their cruiser and stood on either side of the Pinto. When an inquiry was made as to what they were doing, the driver of the Pinto, later identified as defendant Smith, stated that they were cleaning the car even though no cleaning materials were visible. Officer Lawston then testified that he suspected narcotics activity and feared for the safety of himself and his partner, who was a rookie in training. Officer Lawston had been involved in Rock Creek Park in over 200 narcotics arrests. Over 100 arrests had involved dangerous weapons. Because of his co-officer’s lack of experience and recognizing the inherent dangers (after receiving the untrue explanation for the illegally parked automobile), Officer Lawston ordered the occupants out of the car in an effort to protect himself and his rookie partner. He then walked around from the passenger’s side to the driver’s side of the automobile. When he reached the driver’s side the door was open and he could plainly see four inches of what he believed to be a double-barrel shotgun protruding from under the driver’s seat. He retrieved the weapon, placed it on the roof of the car and asked what the gun was doing there. Smith initially responded that he had never seen the gun before but later claimed he had found it in the woods.

The officers then conducted a pat down of the occupants. At that point, only the driver, defendant Smith, was placed under arrest. Several minutes after the arrest the transport officer who had arrived on the scene conducted a more thorough search of the defendant Smith and discovered in his pants a U.S. Navy payroll bag containing ten “nickel” bags of marijuana.

The Law

In Terry v. Ohio, 392 U.S. 1, 10, 88 S.Ct. 1868, 1874, 20 L.Ed.2d 889 (1968), the Supreme Court ruled that police officers may not only stop but also make a protective frisk of an individual where he “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous ...” Id. at 30, 88 S.Ct. at 1884. The Court expanded the Terry rule in Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 333 n. 6, 54 L.Ed.2d 331 (1977), holding that when a driver of a “motor vehicle has been lawfully detained for a traffic violation, the officer may order [him] out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” The Court reasoned that the state’s interest in the safety of its officers is considerable and outweighs the de mini-mus additional intrusion on the driver already legitimately stopped. Id. at 110, 111, 98 S.Ct. at 333.

The District of Columbia Circuit applied Mimms in United States v. Wilkerson, 598 F.2d 621 (1978). There police responded to a complaint about a car blocking the driveway in a neighborhood that had been the source of numerous complaints involving prostitution and juvenile robberies. The police observed the car speed away, travel in excess of the speed limit and swerve in and out of the traffic lane. The appellate court affirmed the trial court’s denial of defendant’s motion to suppress stating that the parking complaint and traffic violations justified the stop. The unsettling developments after the stop (i.e., the driver’s failure to produce personal identification, etc.) justified the officers’ ordering the occupants out of the car. Id. at 624. Even before Mimms this Circuit in United States v. Green, 465 F.2d 620 (1972), held that where officers observed a car run a stop sign late at night and furtive movements of the driver, they acted reasonably in ordering the driver from the car and frisking him and searching beneath the seat of the car. The routine traffic stop ceased to be such when the officers observed furtive movements by the occupant of the vehicle and became reasonably fearful of danger. Judge Tamm stated that the conduct of the officers as to what constituted reasonable fear and justified the intrusion “must be viewed from a vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest, guided by his experience and training.” Id. at 623.

In this case it is evident the officers were justified in approaching the car and making inquiries because it was illegally parked. It makes no difference that the officers actually issued or would have issued a traffic citation. Originally their attention was legitimately drawn to the car parked inappropriately in the middle of the travelled roadway with all its doors open. Once they were alerted by that factor and combined with the untruthful explanation of the driver for the reasons for being so stopped, the officer was justified in ordering the occupants out of the car based on his experience as a matter of self-protection. He had testified that his years of experience and training showed that in this area such actions as he observed led him to suspect narcotics use. The area being an extremely frequented one for drug consumption and the location within a few blocks of a high drug sales area taught the officer that such a situation was not unusual. He had personally made between 50 and 75 arrests for possession of drugs and weapons in that immediate area. His testimony clearly and reasonably showed a concern for his partner’s and his own safety. He had seen the driver making furtive movements as though trying to place or hide something under the front seat. Together with the fabrication for the reason for being illegally parked in that particular location, it cannot be said that the officer had insufficient basis upon which to request the exit from the vehicle and to observe the weapon, part of which was exposed and readily seen without intrusion into the automobile. Given that the reasonableness of the actions of the arresting officer are not to be disected and viewed singly but rather as a whole, the actions of the officer certainly comport with the reasonableness standard in this case. United States v. Young, 598 F.2d 296, 298 (D.C.Cir.1979). (“They are to be viewed through the eyes of a reasonable and cautious police officer on the scene guided by his experience and training.”)

Defendant cited Jones v. United States, 391 A.2d 1188 (D.C.1978), as controlling precedent, wherein the D.C. Court of Appeals held that a police officer may not order a motorist out of his car where he is not detaining him for violation of law but merely desires to make inquiry of circumstances which are only marginally suspicious. Whatever the precedential value of the case, its facts are not apposite. In that case there were two men sitting in an automobile late at night lawfully parked on Wisconsin Avenue, N.W. The passenger was smoking a cigarette and the inside dome light was on. The officer thought he saw the passenger make some type of quick movement. Without any inquiry, they immediately ordered the occupants out of the car and discovered narcotics paraphenalia. The District of Columbia Court of Appeals held that the officers acted reasonably in approaching the car to speak to the occupants but lacked specific and articulable facts necessary to justify ordering the occupants out of the car and therefore ordered suppression of the items seized. The facts in this case are not sufficiently analogous to the Jones decision to justify any suppression of the items seized herein. In Jones the occupants were apparently lawfully parked and were sitting in their car late at night with the inside light on. In this case, as set forth above, the occupants were illegally parked and gave an untrue explanation of their presence in the area. The police were able to provide reasonable, articulated facts justifying their request to have the occupants alight from the automobile as necessary for their safety. There was no physical hands-on search of the automobile or the driver until after the weapon had been seen from outside the automobile and then retrieved from under the driver’s seat.

Under Mimms, a mere inconvenience cannot prevail against legitimate concerns of the officers for safety. Pennsylvania v. Mimms, supra, 434 U.S. at 111, 98 S.Ct. at 333. Officer Lawston testified without challenge that he was concerned about his safety and the safety of his rookie partner. As such, he was justified in taking reasonable precautions in ordering the occupants out of the car. As Judge Leventhal observed in Bailey v. United States, 389 F.2d 305, 315 (D.C.Cir.1967) (concurring), “As a society, we routinely expect police officers to risk their lives in apprehending dangerous people. We should not bicker if in bringing a potentially dangerous situation under control they issue commands and take precautions which reasonable men are warranted in taking.” See also, Little v. United States, 393 A.2d 94 (D.C.1978).

Under the “plain view” doctrine announced in Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), and reaffirmed in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502 (1983), a warrantless seizure of private possessions is permitted if: (1) the police lawfully make an “initial intrusion” or are properly within a position to view a particular area; (2) the discovery of evidence is “inadvertent”; and (3) the items seized are “immediately apparent” to the police as evidence of a crime, contraband, or otherwise subject to seizure. Id. Applying this standard, the Court concludes that the seizure of the double-barrel shotgun was lawful. Smith and his companions were lawfully ordered out of the car. The gun was discovered inadvertently as Officer Lawston looked inside the car from the driver’s side, with the door open; the protruding four inches of the shotgun made it immediately apparent to Officer Lawston that the object was subject to seizure.

It is well settled that incident to a lawful arrest officers are permitted to search for and seize without a warrant weapons and evidence of crime that are within the area of immediate control of the arrestee. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). The justification depends as much on the need to disarm the arrestee as on the need to preserve evidence that will be used later on at trial. United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 476, 33 L.Ed.2d 427 (1973). After Smith was arrested and the transport officer arrived on the scene, a search of Smith revealed that he had ten “nickel” bags of marijuana hidden inside his pants. Since the search was conducted incident to a lawful arrest and confined to an area within Smith’s immediate control, the seizure of the drugs was lawful.

For the reasons stated above, the gun and the narcotics seized are admissible into evidence. The Motion to Suppress is DENIED.


author: VanARTSDALEN, District Judge.

text:
    TIDEWATER GRAIN COMPANY v. The S.S. POINT MANATEE, her engines, boilers, equipment, etc. and the Point Shipping Corp. and Tug Cavalier, her engines and equipment, etc. and Tug Cape May, her engines and equipment, etc. and Curtis Bay Towing Company of Pennsylvania.
    Civ.A. No. 83-2389
    United States District Court, E.D. Pennsylvania.
    Oct. 5, 1984.

      John Mattioni, Anthony S. Minisi, Richard W. Hopkins, Philadelphia, Pa., for plaintiff.
    Raymond T. Letulle, Maurice J. Maley, Jr., Krusen, Evans & Byrne, Philadelphia, Pa., for Point Shipping Corp.
    Alfred J. Kuffler, Stephen M. Calder, Palmer, Biezup & Henderson, Philadelphia, Pa., for Curtis Bay Towing.
   MEMORANDUM OPINION AND ORDER

VanARTSDALEN, District Judge.

In this case Tidewater Grain Company (Tidewater) alleges that the S.S. POINT MANATEE while under tow by tugs owned and operated by the Curtis Bay Towing Company (Curtis Bay) abided with the Tidewater dock. Tidewater seeks compensation for damages to the dock in this action against Curtis Bay and the owners of the S.S. POINT MANATEE, the Point Shipping Corporation.

At the time of the allision the POINT MANATEE was piloted by an employee of Curtis Bay, Jerome Mamo. Curtis Bay and Point Shipping have filed cross motions for partial summary judgment on the issue of which party is liable for any negligence that may have been committed by pilot Mamo. Curtis Bay argues that pilot Mamo was the borrowed servant of Point Shipping at the time of the accident and that Point Shipping, therefore, is liable for any negligence of pilot Mamo as his employer. Point Shipping contends that under its contract with Curtis Bay, or alternatively by operation of law, pilot Mamo remained the employee of Curtis Bay and that Curtis Bay, not Point Shipping, is liable for any damages caused by pilot Mamo’s negligence.

On January 3, 1983, the POINT MANATEE was being towed from Camden to Girard Point by tugs owned and operated by Curtis Bay. The POINT MANATEE was not under its own propulsion, and its own propulsion was not available for use. Certain of her navigation equipment, however, was available and was being used in piloting the ship. In addition to pilot Mamo, two representatives of the owners of the POINT MANATEE, a small shore crew and the ship’s master, Dana Dillon, were aboard during the maneuver.

The first question to consider is whether the towage contract between Point Shipping and Curtis Bay determines which party is liable for damages caused by negligence of the pilot. The contract contains a pilotage clause providing that when a tug employee pilots a vessel under its own propulsion or with its own propulsion available the pilot becomes the borrowed servant of the vessel’s owners and that they, not the towing company, are liable for any negligence of the pilot.

Point Shipping argues that the negative inference of a contract disclaiming liability for negligent pilotage of a ship under its own power is that the towing company is liable for negligent navigation of a ship propelled only by the power of tugs. Ambiguities in the contract should be read in favor of Point Shipping and against Curtis Bay who authored the contract. Melso v. Texaco, Inc., 532 F.Supp. 1280, 1297 (E.D.Pa.), aff'd, 696 F.2d 983 (3d Cir.1982). The contract language, however, is not ambiguous. It covers only situations in which the vessel being navigated is “making use of or ha[s] available [its] own propelling power.” Neither party contends that the POINT MANATEE was under its own propelling power or that she had that power available. Nor has any evidence been offered to establish the understanding of the parties that the contract was to bear the negative inference propounded by Point Shipping. I therefore find that the contract does not govern the relative liability of Curtis Bay and Point Shipping for any negligence that might have been committed by pilot Mamo. Liability must be determined in accordance with the common law borrowed servant doctrine.

A person who is employed generally by one employer but is performing a particular service for another employer under the control and direction of the temporary employer becomes the borrowed servant of that temporary employer. Standard Oil Co. v. Anderson, 212 U.S. 215, 220-22, 29 S.Ct. 252, 253-54, 53 L.Ed. 480 (1909). Under this borrowed servant doctrine, the temporary employer is vicariously liable for negligence of the borrowed servant. Id. In accordance with general principles of respondeat superior, the bases for imposing liability are: (1) that the employee was performing the work of the temporary employer; and (2) that the temporary employer had the right and duty to supervise and control the employee in the performance of the work. These two factors are to be considered in determining the issue whether a person is a borrowed servant. Id.; Amerada Hess Corp. v. Ogden Saguenay Transport, Inc., 1980 A.M.C. 900 (M.D.Fla.1979).

The applicability of the borrowed servant doctrine to towing company employees is not a novel issue. In Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932), the Supreme Court enforced the provision in a contract that a pilot provided by a towing company aboard a ship under its own propulsion would become the borrowed servant of the ship’s owners. The Supreme Court has limited the applicability of the borrowed servant doctrine to tugboat employees, however, by holding that a towing company could not avoid liability for the negligence of its employees by contractually disclaiming liability or through the fiction of the borrowed servant doctrine. Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). The Court in Bisso distinguished Sun Oil Co., noting that a towing company was not in control of its employee piloting a vessel under its own power. Bisso, 349 U.S. at 92-94, 75 S.Ct. at 633-34.

It is well established that a tug company employee piloting a dead ship (a ship having no propelling power of its own available) remains the employee of the tug company and does not become the borrowed servant of the owners of the dead ship. Sturgis v. Boyer, 65 U.S. (24 How.) 110, 16 L.Ed. 591 (1861); Compania Maritime Samsoc Limitada v. Moran Towing & Transp. Co., 197 F.2d 607, 1952 A.M.C. 1291, 1294 (2d Cir.1952); Walker v. Tug Diane, 350 F.Supp. 1388 (D.V.I.1972).

Curtis Bay contends, however, that in the present case because the master of the ship was on board during the towing, because some of the navigation equipment aboard the POINT MANATEE was used and because the shore crew of the POINT MANATEE assisted in the towing, the owners of the POINT MANATEE had sufficient control and direction over the navigation to make pilot Mamo their borrowed servant.

It is well established that the ship’s master has the legal authority to remove the pilot from control of the ship. The China, 74 U.S. (7 Wall.) 53, 67, 19 L.Ed. 67 (1868). It is equally clear that the pilot, and not the master, controls and directs the navigation of the ship. The Oregon, 158 U.S. 186, 194, 15 S.Ct. 804, 808, 39 L.Ed. 943 (1895); The Framlington Court, 69 F.2d 300, 306 (5th Cir.1934).

In cases in which the ship with a borrowed pilot was under its own propulsion, courts have found that the master had sufficient control to warrant the shipowner’s liability for negligence of the pilot. Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932); Amerada Hess Corp. v. Ogden Saguenay Transport, Inc., 1980 A.M.C. 900 (M.D.Fla.1979); see also The China, 74 U.S. (7 Wall.) 53, 19 L.Ed. 67 (1868) (ship compelled to take locally licensed pilot was liable for pilot’s negligence). But even in such situations where a towing company pilot navigates a ship under its own propulsion with the ship’s master aboard, other courts have not hesitated to find that the pilot was in control of navigation and that the shipowner was not liable for negligence of the pilot. Publicker Indus, v. Tugboat Neptune Co., 171 F.2d 48, 50 (3d Cir.1948); cf. Tankers & Tramps Corp. v. Tugs Jane McAllister & Margaret M. McAllister, 358 F.2d 896 (2d Cir.1966) (tug owner, not shipowner, liable for negligence of pilot where contract failed to provide that pilot would be borrowed servant).

In the present case, it is all the more clear that a master without ship’s propulsion is not in sufficient control over navigation to make the pilot the borrowed servant of the ship’s owners. Cf The Teaser, 246 F. 219, 223-24 (3d Cir.1917) (master of tug held to have sole control of navigation, the master of the ship in tow having “no voice” in navigation). A ship without its own propulsion is at the mercy of the tugs towing it, regardless of whether the master is aboard or whether the navigation equipment is operating. In such situations, the master must rely on the pilot provided by the tug company and does not have effective control of navigation of the ship.

The job of navigating a ship that does not have its own propulsion is the job of the tug company. The tug company’s employee piloting such a ship is doing the work of the tug company and does not become the borrowed servant of the owners of the dead ship being towed.

There is no dispute as to any facts material to the determination of the borrowed servant issue. The POINT MANATEE was a dead ship, and the pilot of a dead ship who is provided by a towing company is not the borrowed servant of the owners of the ship being towed. Several circuit courts have held that “the issue of whether a relationship of borrowed servant existed is a matter of law.” Gaudet v. Exxon Corp., 562 F.2d 351, 357 (5th Cir.1977); Ruiz v. Shell Oil Co., 413 F.2d 310, 314 (5th Cir.1969); Gudgel v. Southern Shippers, Inc., 387 F.2d 723 (7th Cir.1967); McCollum v. Smith, 339 F.2d 348 (9th Cir.1964). As a matter of law, a towing company pilot navigating a dead ship is not the borrowed servant of the owners of the ship being towed. Accordingly, Point Shipping is not liable for any negligence that may have been committed by pilot Mamo.

       The pilotage clause provides in full:
      PILOTAGE: We do not furnish pilots or pilotage to vessels making use of or having available their own propelling power, so that whenever any licensed pilot, or a captain of any tug which is furnished to or is engaged in the service of assisting a vessel making use of or having available her own propelling power, participates in directing the navigation of such vessel, or in directing the assisting tugs, from on board such vessel or from elsewhere, it is agreed that he becomes the borrowed servant of the vessel assisted and her owner or operator for all purposes and in every respect, his services while so engaged being the work of the vessel assisted, her owner and operator, and being subject to the exclusive supervision and control of the vessel's personnel. Any such service performed by any such person is beyond the scope of his employment for us and neither those furnishing the tugs or lending any such person, nor the tugs, their owners, agents, charterers, operators or managers shall be liable for any act or omission of any such person. The provisions of this paragraph may not be changed or modified in any manner whatsoever except by written instrument signed by an officer of this company.
      With respect to vessels that are not owned by the person or company ordering the tug service, it is understood and agreed that such person or company warrants that it has authority to bind the vessel owner to all the provisions of the preceding paragraphs, and agrees to indemnify and hold us harmless, and also those furnishing the tugs and the tugs, their owners, agents, charterers, operators and managers, from all damages and expenses that may be sustained or incurred in the event and in consequence of such person or company not having such authority.


author: CARROLL, District Judge.

text:
    David P. VALENTINE, Plaintiff/Counterdefendant, v. MOBIL OIL CORPORATION, a New York corporation, Defendant/Counterclaimant.
    No. CIV 83-1651 PHX EHC.
    United States District Court, D. Arizona, Sixth Division.
    Nov. 9, 1984.

      Ronald W. Meyer, Phoenix, Ariz., for plaintiff/counterdefendant.
    N. Warner Lee, Ryley, Carlock & Apple-white, Phoenix, Ariz., for defendant/counterclaimant.
   ORDER

CARROLL, District Judge.

On August 22, 1983, Plaintiff David P. Valentine (Valentine) commenced this action seeking a prohibitory and mandatory injunction against Defendant Mobil Oil Corporation (Mobil). Valentine seeks a preliminary injunction against Mobil enjoining it from nonrenewing or terminating Valentine’s franchise, (including service station facilities leased from Mobil) and from commencing demolition of the service station facilities. He also seeks a declaratory judgment that the terms of a Redevelopment Rider (rider) attached to Mobil’s 1983 renewal agreement is a provision which materially alters the leased premises thereby requiring Mobil to make a bona fide offer to Valentine for him to purchase such premises pursuant to the Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq. (PMPA).

At issue here is Mobil’s Motion for Summary Judgment argued November 28, 1983. The Court took the motion under advisement and heard further argument on Mobil’s Motion to Reconsider and For In Camera Inspection on February 3, 1984. Pursuant to the Court’s order, Mobil has submitted, and the Court has considered, numerous documents in camera. Additional Mobil documents have been submitted to Valentine under protective orders as to disclosure. Valentine has not sought leave to utilize any of these materials in opposition to the summary judgment motion. The primary issue before the Court is whether Mobil complied with the requirements of the PMPA in the nonrenewal of its franchise relationship with Valentine. For reasons discussed more fully below, Mobil’s Motion for Summary Judgment is granted.

Factual Background

Valentine has been a dealer of Mobil’s branded products for approximately 10 years. On May 30, 1980, Mobil entered into a two-part agreement with Valentine: (1) a service station lease, and (2) a retail-dealer contract (franchise agreement). The terms of both agreements ran from September 1, 1980 through August 31, 1983. Prior to September 1, 1983, a franchise relationship within the meaning of and as defined by the PMPA, existed between Valentine and Mobil.

On April 22, 1983, Mobil submitted a renewal franchise agreement to Valentine which included changes or additions regarding (1), rental (2) hours of operation, and (3) a Redevelopment Rider authorizing possible alteration of the physical structure and functions of the service station. The provisions of the rider would allow Mobil to add a “sales room profit center” (snack area) and to restructure the station to a pump only station (pumper). A pumper has only self-serve gas islands and no other service bay areas. Mobil later advised Valentine that it had no present intention to convert Valentine’s station to a pumper (Exhibit E, Motion for Summary Judgment). Nevertheless, the rider remains a part of the new franchise agreement. The pertinent language of the rider is as follows:

Tenant understands that Landlord contemplates making a substantial redevelopment of the premises which may include a change in configuration, and may include the elimination of the service bays. Tenant agrees and understands ... it is solely within the discretion of Landlord whether any such redevelopment will be made, as well as the nature and extent of any redevelopment.

(Exhibit C, Motion for Summary Judgment).

On April 27, 1983, Valentine rejected the above offer, disagreeing with all three items. Valentine has submitted an affidavit with his response to the Motion for Summary Judgment which states that he would have signed the renewal but for the rider. Mobil and Valentine failed to agree to the changes and additions to the provisions of the existing franchise. On May 25, 1983, Mobil sent a Notice of Nonrenewal of Franchise Relationship by certified mail, return receipt requested, to Valentine, which complied with the notice requirements under the PMPA, 15 U.S.C. § 2804.

The parties agree that Valentine has developed goodwill in his business by performing automotive service and repair work.

In addition to the renewal issues raised above, Valentine has made claims against Mobil for breach of lease, negligence and for failure to make timely repairs to his sérvice station in violation of the PMPA. Valentine has also sought damages, exemplary damages, reasonable attorneys’ fees, and costs and expenses.

Further, Mobil has counterclaimed against Valentine seeking a declaratory judgment stating that Mobil has complied with the requirements of all applicable laws in its franchise and all relationships between them are terminated. Mobil also seeks judgment against Valentine requiring him to immediately vacate the service station premises and return all of Mobil’s property to Mobil. Mobil seeks reasonable attorneys’ fees and costs.

Contentions of the Parties

The parties dispute the grounds and motivation upon which the nonrenewal of the franchise relationship is based. Mobil contends that 15 U.S.C. § 2803(b)(3)(A) governs. It concedes that the rider to the new lease package offered to Valentine contains changes or additions to the provisions of the franchise but that nonrenewal was based upon the failure of the parties to agree to these changes as provided by § 2802(b)(3)(A). The issue therefore is whether the elements of that section have been met. Specifically, grounds for the nonrenewal of the franchise relationship under this section include:

1. Whether, in the renewal agreement, proposed changes or additions to provisions of the franchise were made by Mobil in “good faith”, and
2. Whether such changes or additions were made “in the normal course of business”, and
3. Whether a failure to agree to renewal is the result of Mobil’s insistence upon such changes or additions for the purpose of preventing the renewal of the franchise relationship, i.e.-, mere pretext or sham.

Mobil argues that the proposed altered terms are not evidence of either a discriminatory motive or a sham or pretext to avoid renewal. It contends the rider has not disCriminatorily singled out Valentine, but us uniformly included in all its renewals and, therefore, is in the normal course of business and offered in good faith.

Mobil asserts that its decision to incorporate the rider into the new franchise agreement was based on its policies — permissible under Congressional intent of the PMPA— to allow Mobil’s management flexibility to adjust to changing market conditions and is critical to permit it to remain competitive. It is Mobil’s policy to require a rider to every new and renewed franchise or lease, other than for stations targeted for divestiture. Mobil presently has selected seven stations in the Phoenix Key Market area for conversion to pumper stations, but maintains that Valentine’s station is not one of those at this time. His station is one of 26 stations selected for a partial self-serve conversion to add a salesroom profit center without elimination of full-service pumps or backroom work capabilities.

Even though Mobil does not now intend to convert Valentine’s station into a pumper, it reserves the right to do so by the language of the rider which it still requires Valentine to sign. The affidavit of M.D. DiMezza, resale marketing manager, Western region of Mobil, states that when and if Valentine’s station is converted to a pumper “depend[s] upon changing economic conditions and customer preferences.” (Affid. at page 4). Mobil further contends that its policy of requiring the rider predates the Marketing Analysis and Planning System (MAPS) study which has been identified by Valentine as a key document to proving Mobil’s good faith under the PMPA requirements. It is an in-depth survey of 57 key market areas, including the Phoenix Market area. This study details various data described by Mobil as highly “sensitive” given it includes investment strategies, methods of pricing, profitability, estimates of competitor’s profit margins and other information. The Court has reviewed various documents in camera and Valentine has received portions of MAPS and other information pursuant to a detailed protective order stipulated to by the parties.

Valentine contends that § 2802(b)(3)(D) is applicable here. This section permits franchise nonrenewal involving leased marketing premises by the franchisor, if such decision is made in good faith and in the normal course of business. It also requires that the franchisee be afforded the opportunity to purchase the property where the franchisor elected not to offer a renewal franchise because the franchisor had determined:

to materially alter, add to, or replace such premises, or
that renewal of the franchise relationship is likely to be uneconomical to the franchisor despite any reasonable changes or additions to the provisions of the franchise which may be acceptable to the franchisee.

A further requirement under this section is that the franchisor cannot have made either of the foregoing determinations for the purpose of converting the premises to operation by employees or agents of the franchisor for such franchisor’s own account.

Valentine argues that Mobil’s decision not to renew the lease was (a) not made in good faith, and (b) the prospective change to a pumper is to “materially alter, add to, or replace such premises.” Ergo, since Valentine was not afforded the opportunity to buy the premises, the franchise agreement could not be terminated.

Essentially, Valentine’s position is that Mobil knew when it offered the renewal that Valentine could not survive financially under the terms in the rider and would therefore be forced to reject the renewal. He reasons that Mobil only made the offer to give the appearance of good faith negotiation under § 2802(b)(3)(A), but that in reality it was a mere pretext to permit Mobil to circumvent the requirement under § 2802(b)(3)(D) to offer Valentine a right to purchase the station. Mobil was assured of Valentine’s failure to agree he argues because Mobil knew he would subject himself to virtual financial ruin were he to consent to terms which would eliminate his goodwill built up over a 10-year period, eliminate his income from repairs done in his backroom, eliminate his service abilities coincident to a full-service station, and render his position tantamount to a “cashier”. (Response to Motion for Summary Judgment, at p. 6).

Alternatively, Valentine argued in November, 1983 that if § 2802(b)(3)(A) is applicable, the MAPS study and other discovery potentially would show that Mobil used the rider as a pretext to gain nonrenewal and that the rider is a “tool for preventing the renewal of a franchise relationship” (Response to Motion for Summary Judgment, p. 3). Therefore, Valentine argued that there is a material issue of fact as to whether Mobil meets the requirements of “good faith” and “in the usual course of business” which preclude granting summary judgment for Mobil. He argues that given Mobil’s renewal terms will have such draconian financial consequences to him — without his providing any financial analysis — it cannot be considered a good faith renewal proposal. As noted, Valentine has not supplemented his earlier affidavit since receiving the additional discovery.

Mobil argues that § 2802(b)(3)(D) cannot apply to the facts here given it made an offer of renewal to Valentine in good faith and in the normal course of business, but the parties failed to agree pursuant to § 2802(b)(3)(A). Valentine argues that § 2802(b)(3)(D) is controlling because it can be inferred from the onerous consequences of the rider that it was Mobil which determined not to renew the franchise.

Analysis

The primary issues are as follows:

1. Whether 15 U.S.C. § 2802(b)(3)(A) or § 2802(b)(3)(D) governs.
2. Whether, if § 2802(b)(3)(A) governs, the parties failure to agree to the proposed changes or additions to the franchise agreement are the result of Mo-' bil’s insistence upon such changes or additions for the purpose of preventing the renewal of the franchise relationship as defined by § 2802(b)(3)(A).

The first issue presented here is addressed by the court in Baldauf v. Amoco Oil Company, 553 F.Supp. 408 (W.D.Mich.1981), aff’d, 700 F.2d 326 (6th Cir.1983). In upholding nonrenewal of a franchise relationship involving a pumper conversion under § 2802(b)(3)(A), the court stated:

[Here] Defendant specifically provided Plaintiffs with the opportunity to renew. Therefore, nonrenewal must be based upon the failure to agree requirement of subsection (A) rather than on the franchisor’s decision not to renew for reasons mentioned in subsection (D). Correspondingly, there is no right of first refusal under these circumstances.

Id. at 414; see, e.g., Brack v. Amoco Oil Co., 677 F.2d 1213, 1220. (7th Cir.1982).

Valentine argues he was presented with a fait accompli in that Mobil’s offer of renewal was in fact no offer due to the rider’s severe financial consequences to him thereby assuring Mobil of nonrenewal at the moment the offer was made. He argues that the terms of the rider “forced Valentine to give up this legal right [to the franchise] and terminated Valentine when he refused to give up this legal right”, that this therefore places the partiender the requirements of § 2802(b)(3)(D), and that Valentine must be given a right to purchase the premises (Joint Pretrial Order, at p. 6).

The Court is persuaded that the reasoning in Baldauf is correct on this point. The plain meaning of the two subsections demonstrates that where a franchisor makes a renewal offer, as opposed to independently and unilaterally determining to non-renew, § 2802(b)(3)(A) applies, not § 2802(b)(3)(D).

Valentine further argues on this point that to construe the two subsections as Mobil does “effectively eliminates the ‘right to purchase section’ from the [PMPA]” (Response to Motion for Summary Judgment, at p. 13).

In every instance where an oil company would want to convert the premises, materially or substantially change the premises, or sell the premises, the oil company would merely add a rider to the Lease which would give it the right to do one or all of the above factors. If the dealer did not agree to those provisions of the Lease, the oil company would merely not renew the Lease on the basis that they could not agree to terms and conditions as provided in the “negotiations section” [§ 2802(b)(3)(A)].

(Response to Motion for Summary Judgment, at p. 13).

Valentine’s reasoning is unpersuasive in light of the factual context in Roberts v. Amoco Oil Company, 740 F.2d 602, 603 (8th Cir.1984). There the court dealt with a question of first impression as to whether a bona fide offer to sell the service station premises under the PMPA must include the gasoline pumps, tanks, and other related equipment. The franchisor notified the franchisee that it did not intend to renew his lease when it expired because it intended to sell the premises, but that it would make an offer to sell the station to the franchisee first. The franchisor’s decision not to renew was therefore not at issue and the court proceeded to rule premised on the nonrenewal by the franchisor pursuant to § 2802(b) (3) (D) (iii).

This Court is persuaded that application of § 2802(b)(3)(D) is precluded by the fact that Mobil. offered renewal to Valentine. This assumes Mobil acted in good faith and in the normal course of business, also requirements under this subsection and discussed below.

Resolving the second issue is the more challenging. As the court in Baldauf concluded, the legislative history reflects that Congress intended that franchisor nonrenewal decisions meet a two-pronged test under § 2802(b)(3)(A):

[Considerable debate has focused upon recognition of so-called ‘reasonable business judgments’ of the franchisor as grounds for termination or non-renewal.
This standard has not been adopted by the committee. Instead, a two-fold test has been utilized to judge certain specified determinations including that of market withdrawal.
One test is whether the determination was made ‘in good faith’. This good faith test is meant to preclude sham determinations from being used as an artifice for termination or non-renewal. The second test is whether the determination was made ‘in the normal course of business’. Under this test, the determination must have been the result of the franchisor’s normal decision making process. These tests provide adequate protection of franchisors [sic] from arbitrary or discriminatory termination or non-renewal, yet avoid judicial scrutiny of the business judgment itself (Emphasis supplied).

Baldauf v. Amoco Oil Co., 553 F.Supp. at 412, quoting Munno v. Amoco Oil Co., 488 F.Supp. 1114 (D.Conn.1980); Senate Report No. 95-731, 95th Cong., 2d Sess. (“Senate Report”), 37 reprinted in [1978] U.S.Code Cong, and Admin.News, pp. 873, 895-96. See Humboldt Oil Co., Inc. v. Exxon Co., U.S.A., 695 F.2d 386, 388 (9th Cir.1982) (Congress enacted the PMPA to protect “franchisees from arbitrary or discriminatory termination or non-renewal of their franchises”).

Congress attempted to bring equity to the imbalance in the bargaining relationship between producers and dealers and the extent of those goals is recited in a Senate Report:

The prospect of nonrenewal for arbitrary or discriminatory grounds threatens the independence of the franchisee as a competitive influence in the marketplace.
An essential requirement of Federal legislation is that the grounds for termination and non-renewal provided in the legislation not be so broad as to deny franchisees meaningful protections from arbitrary or discriminatory terminations and non-renewals or to prevent fulfillment of the reasonable renewal expectations of franchises.
Legislation in this subject area requires recognition of the legitimate needs of a franchisor to be able to terminate a franchise or not renew a franchise relationship based upon certain actions of the franchisee including certain failures to comply with contractual obligations or upon certain changes in circumstances. Particularly important is that legislation dealing with this subject recognize the importance of providing adequate flexibility so that franchisors may initiate changes in their marketing activities to respond to changing market conditions and consumer preferences. (Emphasis supplied) Senate Report P.L. 95-297, U.S.Code Cong, and Ad.News 873 at 876-77 (1978).

Baldauf v. Amoco Oil Co., 553 Supp. at 415. The court in Baldauf concluded that, although the result was harsh, Congress intended to protect the franchisee only from “arbitrary and discriminatory” termination or nonrenewal, and “did not provide a basis to examine the economic impact of an otherwise legitimate business decision by the franchisor.” Id. at 412.

So long as the franchisor does not have a discriminatory motive or use the altered terms as a pretext to avoid renewal, the franchisor has met the burden required by the PMPA for determining good faith.

Id.

The majority of cases evaluating franchisor decisions under this section of the PMPA require that the franchisor meet a test of “subjective good faith, i.e., a ‘good heart’ without evil intent.” Munno v. Amoco Oil Co., 488 F.Supp. at 1120 (franchisor’s decision to require a large rent increase held permissible under subjective good faith standard without regard to reasonableness of increase); Bellmore v. Mobil Oil Corp., 524 F.Supp. 850 (D.Conn.1981); see, e.g., Roberts v. Amoco Oil Co., 740 F.2d 602 at 606 for cases cited therein. Contra, Tiller v. Amerada Hess Corp., 540 F.Supp. 160 (D.S.C.1981).

In essence, then, the legislative history suggests that courts have been directed to look to the franchisor’s intent rather than to the effect of its actions. If it is only using proposed changes to the lease to disguise an illegal attempt to discriminate against the franchisee and thereby drive him from business, the court is empowered to interfere. If, on the other hand, a good faith application of a rental formula operates unreasonably in a particular case, the dictates of the marketplace alone will govern the transaction. This interpretation is completely in accord with the perceived abuse which Congress sought to rectify.

Munno v. Amoco Oil Co., 488 F.Supp. at 1119. .

The result here might have been different if the Court were permitted to evaluate the good faith test on the basis of objective reasonableness. Legislative intent precludes such consideration.

Here, Mobil’s actions clearly coincide with practices contemplated and accepted in the legislative history, which this Court has reviewed independent of the court’s conclusions in Baldauf and Munno. Mobil maintains that its rider is incorporated in all of its new and renewed lease packages. There is no showing that Valentine was treated differently from other dealers. Mobil alleges that the changes and alterations proposed in the rider allow it to “keep pace” with the competition, and provides it with adequate flexibility to adapt to changing market conditions and consumer preferences (Reply to Motion for Summary Judgment, at p. 15). None of the documents submitted by Mobil for in camera review by the Court indicate any purpose other than Mobil acting to protect its economic interest. Valentine has failed to direct the Court’s attention to any evidence suggesting a contrary purpose. While Valentine recites differing conclusions as to the Congressional intent regarding the PMPA, he fails to direct the Court to a single portion of legislative history which contravenes any of the above.

In addition, the Court held a preliminary pretrial conference on September 26, 1984 at which time parties were given a period in which to supplement the pending Motion for Summary Judgment with any affidavits or memoranda. The Court instructed the parties that after such filings the motion would be considered submitted. Valentine seeks to supplement his Response to Mobil’s Motion for Summary Judgment by adding Exhibit 2 to the deposition of Mr. DiMezza (interoffice memorandum dated December 5, 1982, authored by Mobil employee and distributed to various Mobil personnel). Valentine argues that this document illustrates that the rider was devised solely to circumvent the provision of the PMPA that involves a dealer’s right to purchase a station. Mobil contends that the exhibit is merely a memorandum which analyzes how the rider should be implemented to comply with the PMPA, and that it is not devised to circumvent the above provision. This memorandum cannot be reasonably construed in the manner proposed by Plaintiff.

As arguably onerous as these results are to Valentine, Mobil has satisfied the test required by the PMPA given it acted for legitimate business reasons. Any alterations or changes in the terms of renewal were not done as a pretext for nonrenewal. There is nothing in the record from which it can be reasonably inferred otherwise. In the final analysis, Valentine and similarly situated franchisees must seek from Congress any different balancing of the equities between franchisors and franchisees under the PMPA.

Accordingly,

IT IS ORDERED that Defendant’s Motion for Summary Judgment is granted as to Counts I and IV of the amended complaint and as to the counterclaim.