1 United States Court of Appeals,

Fifth Circuit.

No. 95-11096.

APRIL MARKETING & DISTRIBUTING CORPORATION, INC., Plaintiff-Appellee,

v.

DIAMOND SHAMROCK REFINING AND MARKETING COMPANY, Defendant-Appellant.

Jan. 10, 1997.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, GARWOOD and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal arises ou t o f a franchise between Diamond Shamrock Refining and Marketing

Company ("Diamond Shamrock") and Apr il Marketing and Distributing Corporation ("April

Marketing"). April Marketing brought suit against Diamo nd Shamrock in federal district court,

alleging constructive termination of the franchise in violation of the Petroleum Marketing Practices

Act ("PMPA"), 15 U.S.C. §§ 2801 et seq., and, alternatively, unjust enrichment and violation of the

duty of good faith and fair dealing under Texas state law. Diamond Shamrock moved for partial

summary judgment on April Marketing's PMPA wrongful termination claim. The district court denied

the motion and certified its order for interlocutory appeal to this court under 28 U.S.C. § 1292(b).

We granted Diamond Shamrock's petition for leave to appeal.

Because April Marketing has failed to allege any facts that would support a termination claim

under the PMPA, we reverse the order of the district court.

I.

April Marketing is a wholesale and retail distributor of m otor fuel and related products in the

Dallas area. Diamond Shamrock refines and markets petroleum products. A series of "jobber

contracts" governed April Marketing's and Diamond Shamrock's franchise relationship. Under the

franchise agreement in effect when the termination allegedly occurred, Diamond Shamrock gave April1 Congress provided a variety of remedies for the termination of a franchise in violation of the

PMPA, including monetary damages and injunctive relief. See 15 U.S.C. § 2805(b), (d), (e).

2 Marketing the right to use Diamond Shamrock's trademarks, trade names, a nd brands, but only at

locations specifically approved by Diamond Shamrock in writing. Diamond Shamrock also agreed

to sell m otor fuel and other products to April Marketing. Apri l Marketing in turn agreed to pay

D iamond Shamrock's "established price" for these items in cash, unless the parties agreed upon

another arrangement. Although Diamond Shamrock as a matter of practice extended credit to April

Marketing, the agreement gave Diamond Shamrock the right to alter or suspend April Marketing's

credit at any

t ime. In April of 1991, Diamond Shamrock exercised its right to terminate April

Marketing's credit line.

April Marketing's wrongful termination claim is premised on three basic assertions. First,

Diamond Shamrock entered into direct competition with April Marketing by opening its own retail

stores near April Marketing's stores and selling gasoline and other products to its own stores at or

below w ho lesale price. Second, Diamond Shamrock imposed onerous conditions before it would

allow April Marketing to use the Diamond Shamrock logo at new April Marketing locations and in

some cases refused to grant permission altogether. Third, Diamond Shamrock terminated April

Marketing's credit line, forcing April Marketing to pay cash for gasoline and other goods. April

Marketing alleges that these actions constructively terminated April Marketing's franchise in violation

of the PMPA.

II.

The centerpiece of the PMPA, 15 U.S.C. § 2802(a), prohibits a franchisor from terminating

a franchise or failing to renew a franchise relationship, except in the manner and for t he reaso ns

specified by the PMPA. 1 The Act does not define "termination," other than to specify that it "includes

cancellation." Id. § 2801(17).

This circuit has not recognized a cause of act ion for "constructive termination" under the2 In McGinnis v. Star Enter., No. 93-1234, 8 F.3d 20 (December 21, 1993) (unpublished), a

franchisee brought suit against a franchisor alleging that the franchisor had constructively

terminated a franchise in violation of the PMPA along with causes of action for breach of

contract, violation of the Texas Deceptive Practices Act, and antitrust violations. The majority of

the court's opinion focused on the effect of a release between the parties, which had resolved a

previous dispute. The court concluded broadly that "[e]ach of plaintiffs' claims is either barred by

the release clause or lacks adequate evidence to survive summary judgment." Id. at 10. Despite

this general conclusion, which would appear to have resolved all the plaintiff's claims, the court

nevertheless addressed the plaintiff's PMPA wrongful termination claim specifically. The court

discussed the lack of summary judgment proof of termination, including the fact that the franchise

had continued in effect "at all times relevant to this action." Id. at 9. Interestingly, the court went

further to state that "[t]he plain meaning of the [PMPA] does not provide for "constructive

termination.' " Id. We need not address whether this language from McGinnis is dictum or

whether, as April Marketing urges, it is a binding alternative holding; as discussed below, the

facts alleged by April Marketing do not state a claim for constructive termination even if such a

cause of action exists.

3 Within the meaning of the PMPA, a "franchise" consists of three core components: a contract

to use the refiner's trademark, a contract for the supply of motor fuel to be sold under the

trademark, and a lease of the premises at which the motor fuel is sold. Barnes v. Gulf Oil Corp.,

795 F.2d 358, 360 (4th Cir.1986) (citing S.R EP

. N O . 731, 95th Cong., 2d Sess. 17, 29 (1978),

reprinted in 1978 U.S.C.C.A.N. 873) (additional citations omitted).

4 Most cases in which courts from other jurisdictions have recognized the possibility of a

constructive PMPA termination involve the assignment of a franchise by the franchisor to a third

party. See, e.g., May-Som, 869 F.2d at 918-19; Barnes, 795 F.2d at 359. Section 2806(b) of the

PMPA provides that the Act does not prevent a franchisor from assigning a franchise "as

authorized by the provisions of such franchise or by any applicable provision of State law." 15

U.S.C. § 2806(b). The Fourth and Sixth Circuits have interpreted this provision to mean that an

assignment in violation of state law will give rise to a cause of action under the PMPA. MaySom, 869 F.2d at 922; Barnes, 795 F.2d at 363. Those courts have also held that even if an

assignment is permissible under state law, it may be actionable under the PMPA if it breaches

"one of the three statutory components of a franchise...." May-Som, 869 F.2d at 922; Barnes,

795 F.2d at 363.

3 PMPA. 2 We need not address the question of whether a constructive termination is actionable under

the PMPA; in this case, Diamond Shamrock's actions did not breach any o bligation it owed April

Marketing and thus cannot provide the basis for a termination claim under the PMPA.

Those courts that have recognized constructive termination under the PMPA have indicated

that there is no constructive termination absent a breach of the franchise. 3 See May-Som Gulf, Inc.

v. Chevron U.S.A., Inc., 869 F.2d 917, 922 (6th Cir.1989); B arnes v. Gulf Oil Corp., 795 F.2d 358,

362-64 (4th Cir.1986); 4 s ee also Fresher v. Shell Oil Co., 846 F.2d 45, 46-47 (9th Cir.1988)

(holding that the dismissal of a PMPA wrongful termination action was proper where the franchisee4

failed to allege "breach of any agreements which const it ut e components of their franchises"). C f.

Smith v. Atlantic Richfield Co., 533 F.Supp. 264, 268-69 (E.D.Pa.) (recognizing that termination of

a core secondary arrangement can constitute a termination of a franchise in violation of the PMPA),

aff'd mem., 692 F.2d 749 (3d Cir.1982).

Apr i l Marketing does not dispute that none of Diamond Shamrock's actions in this case

violated the parties' agreement, nor does it claim that th e contractual provi si ons that authori zed

Diam o nd Shamrock's actions themselves violate the PMPA. Diamond Shamrock's actions were

clearly within its rights under the franchise. The agreement explicitly authorized Diamond Shamrock

both to refuse to brand additional April Marketing stores and to refuse to ext end credit to Apri l

Marketing. Further, neither the PMPA nor the contract prohibits Diamond Shamro ck from

competing directly with April Marketing.

Still undaunted, April Marketing argues that a franchisor's actions, even if compliant with the

terms of the franchise, can be considered a PMPA termination because franchises are contracts of

adhesion. The short answer is that Congress could have chosen to prescribe the terms of franchise

agreements as a means of addressing the disparity of bargainin g power between the parties, for

ex ample, by requiring or regulating the extension of credit to franchisees. But it did not. The

legislative history of the PMPA indicates that Cong ress was well aware of the inequality in the

bargaining positions of franchisors and franchisees. S ee S.R EP

. N O

. 731 at 17-19, 1978 U.S.C.C.A.N.

at 873, 875-878. Congress chose to address this problem not by regulating the details of the franchise

agreement but rather by limit ing the franchisor's abilit y to employ the "extrem e remedy" of

t ermination. S ee S.R EP

. N O

. 731 at 18, 1978 U.S.C.C.A.N. at 876. Thus, we conclude that a

franchisor's actions, if those actions do not breach the franchise, cannot be considered a "termination"

within the meaning of the PMPA.

III.

We need not address whethe r a franchisee can ever state a cause of action for wrongful

termination under the PMPA absent a fo rmal termination or cancellation of the franchise by the5 Because we conclude that the facts alleged by April Marketing do not support a cause of

action under the PMPA as a matter of law, we do not reach the PMPA statute of limitations issue.

5 franchisor. We hold only that the PMPA's termination provision is not implicated if the franchisor

has acted within its rights under the franchise. 5

Accordingly, we REVERSE th e judgment of the district court and REMAND for further

proceedings consistent with this opinion.