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. e du/thir dc ir c uit_2000/192Filed September 8, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3873

NORTHVIEW MOTORS, INC.,

Appellant

v.

CHRYSLER MOTORS CORPORATION

JOSEPH P. NIGRO,

Trustee

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 93-1722) District Judge: Hon. William L. Standish

Argued August 8, 2000

BEFORE: BARRY, WEIS and GREENBERG, Circuit Jud ges

(Filed: September 8, 2000)

Christopher M. DeVito (argued) Morganstern, McAdams & Devito 1406 W. Sixth Street, Suite 400 Cleveland, Ohio 44113

Attorneys for AppellantMark F. Kennedy

Christopher J. Meyer (argued) Wheeler, Trigg & Kennedy 1801 California Street, Suite 3600 Denver, Colorado 80202

Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on appeal fr om a final order of the district court entered September 28, 1999, granting judgment as a matter of law in favor of de fendant Chrysler Motors pursuant to Fed. R. Civ. P. 50(a) a fter the close of all the evidence on plaintiff Northview Mo tors's breach of contract and Automobile Dealers Day in Co urt Act ("ADDCA"), 15 U.S.C. SS 1221-25, claims. Northv iew also appeals from (1) an order entered March 7, 199 5, to the extent that it granted Chrysler summary judgmen t on Northview's Pennsylvania Board of Vehicles Act ("BV A"), Pa. Stat. Ann. tit. 63, SS 818.1 et seq., claims on the ground that they were barred by the statute of limitations and (2) an order entered February 9, 1996, to the extent it granted Chrysler summary judgment on Northview's claim for violation of a provision of Pennsylvania's Uniform Commercial Code ("UCC") which obligates contracting parties to act in good faith. See 13 Pa. Cons. Stat . Ann. S 1203. We will affirm the orders entered by the di strict court, although we do so with respect to the March 7, 1995 and February 9, 1996 orders for reasons which diffe r from

those the district court set forth.

A. Factual Background

At the times material to this action, Northview, a Delaware corporation with its principal place of bu siness in Pittsburgh, Pennsylvania, was an automobile dealers hip franchise selling and servicing Jeep and Eagle vehi cles.

2Frank Cuda, Northview's sole shareholder, oversaw t he

dealership's operations. Chrysler, a Delaware corpo ration with its principal place of business in Detroit, Mi chigan, at the times material to this opinion manufactured Jee p and Eagle vehicles as successor to American Motors Corporation.

Cuda had been involved in the automobile industry s ince he was a child. See app. at 258. He began in the in dustry by working at his father's dealership between 1954 and 1968. See id. at 260. In 1968, Northview began sell ing new

cars as an American Motors dealer in the North Hill s section of Pittsburgh. See id. at 261. Cuda testifi ed that throughout the 1970s and 1980s, Northview was a successful dealership consistently ranking as one o f the top one hundred American Motors dealerships in the nati on. See id. at 287. As an American Motors dealership, Northview marketed both the Jeep and Eagle lines of

vehicles.

This case arose directly from events commencing on or about December 11, 1987, when Northview entered int o an American Motors Sales Corporation Eagle Sales and S ervice Agreement ("Eagle SSA") and an American Motors Sale s Corporation Jeep Sales and Service Agreement ("Jeep SSA") (collectively, the "SSAs"). Chrysler subsequently a cquired American Motors Sales Corporation's Jeep and Eagle lines and became its successor in interest to the Jeep an d Eagle SSAs in contractual privity with Northview.1

Inasmuch as the suit Northview filed against Chrysl er evolved out of the two SSAs to which Chrysler becam e a party after it purchased American Motors's Jeep and Eagle product lines, we set forth significant parallel po rtions of the agreements. Section 11(a) of the SSAs obligated Northview to use its best efforts to sell aggressiv ely and effectively each and every model of the Jeep and Ea gle product lines. See, e.g., exhs. at 152. Section 12 required that Northview be a member in good standing of the Dealer

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1. There was testimony that Chrysler acquired Ameri can Motors in the

summer of 1987 but even if this is so our result wo uld be the same as

that we reach.

3Advertising Association, an association which adver tised

lines of vehicles sold by its dealer members. See i d. at 156.

Section 28 of the SSAs governed their termination. See exhs. at 161. It provided, in relevant part:

(C) Notwithstanding the provisions above, th is Agreement will terminate automatically witho ut notice from either party on:

. . . (vi) the failure of DEALER to fully co nduct its Dealership Operations for seven (7) consecut ive business days . . .

Id. at 162 (emphasis added).

Northview asserts that Chrysler had problems with t he allocation of vehicles and parts availability immed iately following the absorption of the Jeep and Eagle deal ers into the Chrysler system. Thus, Northview presented evid ence that it continuously was unable to obtain desired v ehicles from Chrysler to sell to the public and was unable to fill a

fleet order for Alamo Rent-A-Car. See id. at 305.

In addition to the supply problems Northview experi enced under Chrysler, it asserts that it had problems bec ause it was unable to obtain answers from local Chrysler management concerning questions critical to the eff icient operation of its dealership. For example, Northview asserts that Chrysler never explained its system for new ve hicle allocation properly, despite Northview's numerous a ttempts to obtain the information. Further, Northview alleg es that Chrysler never gave it a sufficient explanation of its warranty processing system which is known as Expens e Per Unit Repaired or EPUR. Northview argues that the la ck of an adequate explanation caused its service departme nt to be audited and placed in a restrictive warranty app roval category.

Clearly there was animosity between Northview perso nnel and Cuda on the one hand and local Chrysler managem ent, or zone employees, on the other. Northview asserts that the only response Chrysler gave it to its inquiries abo ut Chrysler's processes was "That's the system." Chrys ler employees, however, documented instances in which C uda was uncooperative and verbally abusive towards them

.

4Northview asserts that its supply problems and the

confusion at the dealership concerning Chrysler's o perating procedures, combined with the personal animosity be tween Northview and Cuda and Chrysler zone personnel, cau sed it increasing financial problems. Northview claims that because it could not obtain vehicles it could sell, and instead was left with unwanted or slow moving vehic les, it

was forced to sell vehicles out of trust.2 When Me llon Bank, Northview's floor plan lender, discovered that Nort hview was selling out of trust, it revoked Northview'sflo or plan agreement and required Northview to enter into an agreement for repayment of its loan. When Northview was unable to make the required payments, Mellon Bank c losed the dealership on July 10, 1991.

Upon learning that Northview was closed for busines s, Chrysler, on July 19, 1991, sent it notice that it was canceling the Jeep and Eagle SSAs. After Northview failed in attempts to sell its dealership, it filed for pr otection under Chapter 11 of the Bankruptcy Code, but the bankruptcy court would not allow for a restructurin g of the failing dealership. Chrysler sent its final notice of termination to Northview on December 12, 1991.

Although Northview argues that its financial troubl es were attributable directly to the actions of Chrysl er and its employees, plainly other factors contributed to its problems. Notably, in May 1984, the Attorney General of Penns ylvania filed suit against Northview alleging that it commi tted 109 separate violations of Pennsylvania's consumer prot ection laws, see app. at 605, an action that led to negati ve press coverage of Northview. See id. at 609-10. During th e trial concerning the consumer fraud violations in May 198 8, the Pittsburgh Press quoted Cuda as stating that the la wsuit had cost Northview a lot of money and that Northvie w's

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2. A dealer will sell out of trust when it has aflo or plan agreement with a financial institution for it to lend money to the dealer to fund the purchase of new vehicles. Under the floor plan, as the vehicles are sold, the dealer is responsible for repayments of the loa n. The dealer sells out of trust when it sells vehicles without making paym ents to the financial institution as required by the agreement, but rathe r keeps the funds within the dealership for other purposes or otherwi se utilizes the funds.

5sales had "plunged from . . . one hundred ten cars a month

to twenty or thirty cars." Id. at 603.

B. Procedural History

Northview and Cuda, individually, filed the complai nt in this action in the district court on October 20, 19 93, alleging claims predicated on Chrysler's alleged br each of

contract and violation of state and federal statuto ry law, including claims under the BVA, the UCC, and the AD DCA. In particular, count one alleged that Chrysler brea ched the Jeep and Eagle SSAs as well as various statutory an d contractual duties of good faith by conduct which

demonstrated its:

(a) failure to act in good faith;

(b) failure to provide financial assistance as promised;

(c) failure to provide products and vehicles ;

(d) failure to treat dealership [(Northview) ] in equitable manner; and

(e) discriminatory practices against Plainti ffs.

Northview alleged that as a result of this conduct it was forced to cease doing business and that the Jeep an d Eagle SSAs were terminated on July 10, 1991.

In count two, Northview and Cuda alleged that Chrys ler, through its acts and omissions, violated the BVA. Specifically, the count alleged that Chrysler viola ted the following provisions of the Act by coercing Northvi ew with
respect to:

(a) S 818.9(a)(1) - ordering or accepting de livery of new vehicles which were not voluntarily ordered;

(b) S 818.9(a)(3) - participating monetarily in advertising campaign at expenses of new vehicle dealer; and

(c) S 818.9(a)(4) - threatening to terminate or cancel franchise unless prejudicial act performed b y dealer;

The count also charged Chrysler with:

(d) S 818.9(b)(1) - failure to deliver new v ehicles;

6(e) S 818.9(b)(2) - discriminating among its new vehicle

dealers; and

(f) S 818.9(c) - unfairly and without just p rovocation canceling the franchise of the new vehicle d ealer. 3

In count three, Northview and Cuda alleged that Chrysler's intentional and/or negligent acts consti tuted

tortious interference with business relations. Coun t four alleged Chrysler breached its duty of good faith in the UCC. Count five alleged that Chrysler violated the ADDCA

.

In conclusion, Northview and Cuda alleged that "[a] s a result of the numerous breaches of good faith and w rongful and intentional acts by [Chrysler], Plaintiffs have suffered substantial damages including, but not limited to, the loss of Frank Cuda's life savings and investment, loss o f profits including future profits, loss of franchise auto de alership and land, loss of salary and benefits." Thus, North view and Cuda sought compensatory and punitive damages as we ll as attorneys' fees and costs.

On August 16, 1994, Chrysler filed a motion seeking a summary judgment dismissing all of Cuda's claims. T he district court, in an opinion and order entered on March 7, 1995, granted that motion in an order from which Cu da does not appeal. As we shall explain, the court als o partially granted Chrysler summary judgment against Northview at that time, even though Chrysler did no t then move for summary judgment against Northview. Northv iew does appeal from that order.

On August 7, 1995, Chrysler filed a motion for summ ary judgment against Northview. Following a hearing on the motion held on December 6, 1995, the district court issued an order, entered on February 9, 1996, partially gr anting and partially denying the motion. On March 11, 1996

, Chrysler filed a motion for reconsideration, which the district court denied by order entered March 14, 19 96.

The court held a pretrial conference on May 6, 1996

. Following the conference, the parties apparently se ttled the

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3. These provisions were renumbered in 1996 as Pa. Stat. Ann. tit. 63,

SS 818.12 and 818.13.

7case on May 16, 1996, and thus the district court c losed

the case. The settlement, however, was not consumma ted, leading Chrysler on February 18, 1998, to file a mo tion to enforce the settlement agreement. On June 10, 1998, the district court entered an order granting the motion to

enforce the settlement.

On July 7, 1998, Northview and Cuda filed an appeal from the order granting the motion to enforce the settlement. On June 18, 1999, for reasons implicati ng Northview's bankruptcy which we need not explain, w e reversed the order of the district court enforcing the

settlement and remanded the matter to the district court for further proceedings. See Northview Motors, Inc. v. Chrysler Motors Corp., 186 F.3d 346 (3d Cir. 1999).

There was a jury trial on the remand starting on September 14, 1999. At the close of Northview's cas e, Chrysler unsuccessfully moved for a judgment as a m atter of law. Thereafter, Chrysler presented its case and the trial concluded on September 28, 1999. Chrysler then rene wed its motion for a judgment as a matter of law and on September 28, 1999, the district court granted the motion, setting forth its reasons on the record. On October 26, 1999, Northview timely filed a notice of appeal fro m the September 28, 1999 order. Inasmuch as Northview app eals from the March 7, 1995, February 6, 1996 and Septem ber 28, 1999 orders, we describe them in some detail.

a. The March 7, 1995 Order

In its memorandum opinion and order entered March 7

, 1995, the district court addressed Chrysler's motio n for summary judgment with respect to Cuda's claims. The court determined that Cuda lacked standing to asser t claims pursuant to the ADDCA, and accordingly enter ed judgment in Chrysler's favor on those claims. The d istrict

court also concluded that Cuda had failed to establ ish

essential elements of his breach of contract and UC C claims in that he did not allege that he was a part y to the agreements involved or that Chrysler owed him a dut y of good faith under the UCC. Finally, with respect to Cuda,

the district court determined that the statute of l imitations

8barred his allegations of tortious interference wit h contract

and violation of the BVA.

On its own motion, the court granted Chrysler summa ry judgment on statute of limitations grounds on North view's

claims of tortious interference and violations of t he BVA, as

the factual bases for these claims were the same as the bases for Cuda's claims. On this appeal, Northview challenges the district court's dismissal of its BV A claims as barred by the statute of limitations but, as we have indicated, Cuda does not appeal.

b. The February 9, 1996 Order

In its memorandum opinion and order entered on February 9, 1999, the district court addressed Chry sler's motion for summary judgment as to Northview's claim s for violations of the ADDCA, breach of contract and bre ach of the duty to act in good faith as specified in the U CC, 13 Pa. Cons. Stat. Ann. SS 1011 et seq. The court partiall y granted and partially denied the motion. The court found th at

Northview asserted two distinct ADDCA causes of act ion, one based upon both Chrysler's failure to act in go od faith in performing and complying with the terms of the S SAs and the other for Chrysler's lack of good faith in terminating Northview's franchise.

The court determined that substantial questions of fact remained to be resolved with respect to Northview's ADDCA claim relating to the termination of its franchises

. Accordingly, it denied the motion for summary judgm ent as to the ADDCA lack of good faith termination claim.

Chrysler, however, also moved for summary judgment as to Northview's claim that it failed to act in good faith in performing and complying with the provisions of the franchise agreements. Specifically, Chrysler assert ed that the bad faith acts of which Northview complained we re insufficient to state a claim or, in the alternativ e, were barred by the statute of limitations. The court fou nd that the following alleged bad faith acts were insuffici ent, as a matter of law, to state a claim under the ADDCA:

(1) the alleged failure of Chrysler to provi de parts and vehicles to Northview;

9(2) the alleged failure of Chrysler to provi de financial

assistance to Northview;

(3) the alleged failure of Chrysler to provi de Northview with copies of the District Service Manager' s Reports;

(4) the alleged failure of Chrysler to provi de adequate training for Northview personnel concerning Chrysler's procedures, programs, and computer systems;

(5) the performance of a warranty audit by C hrysler on the Northview dealership.

App. at 25.

The district court reasoned that Northview had fail ed to present sufficient evidence of express or implied c oercion, as required under the ADDCA, to allow it to proceed with the good faith and performance aspect of its ADDCA cause of action. In the absence of evidence that it coerc ed or intimated Northview, the district court determined that Chrysler was entitled to judgment as a matter of la w on this claim.

The district court found that only two of Northview 's allegations, other than those relating to terminati on, could state a claim for relief under the ADDCA: (1) that Chrysler threatened to terminate its franchise agreements wi th Northview unless Northview agreed to join an advert ising campaign; and (2) that Chrysler forced Northview to accept

new vehicles that it did not want or need. See id. at 26. This conduct, however, occurred in 1988 and 1987, respectively, and, as a result, the court found tha t any claims based upon these allegations were barred by the

statute of limitations. See id. at 26-28. The court also noted that Northview had agreed expressly in the SSAs to" at all times be a member in good standing of the . . . Dea ler Advertising Association." Id. at 28 n.5. The distri ct court therefore concluded that Northview's complaint with respect to being forced to join an advertising campaign fai led

inasmuch as the use of coercion to enforce a valid contractual provision is not wrongful under the ADD CA. See id. (citing Empire Volkswagen, Inc. v. World-Wi de Volkswagen Corp., 814 F.2d 90, 97 (2d Cir. 1987)).

10When it addressed Northview's claim for breach of t he

covenant of good faith and fair dealing in the UCC, the district court found that Pennsylvania law did not provide for an independent cause of action for breach of th e covenant of good faith. See app. at 33. The distric t court

based this determination on the comment to 13 Pa. C ons. Stat. Ann. S 1203, Pennsylvania's version of the UC C provision codifying the obligation to act in good f aith. See id. The comment provides:

This section does not support an independent cause of action for failure to perform or enforce in good faith. Rather, this section means that a failure to perform or enforce, in good faith, a specific duty or o bligation under the contract, constitutes a breach of that contract or makes unavailable, under the par ticular circumstances, a remedial right or power. Th is

distinction makes it clear that the doctrine of good faith merely directs a court towards interpr eting

contracts within the commercial context in w hich they are created, performed, and enforced, and do es not create a separate duty of fairness and reaso nableness which can be independently breached.

13 Pa. Cons. Stat. Ann. S 1203, UCC Comment. Accordingly, the court entered judgment in favor of Chrysler on Northview's UCC claim.

c. Claims that Proceeded to Trial

Although Northview has focused its briefs on the Ru le 50(a) order on the ADDCA claim, at trial it advance d both

its breach of contract claim and its ADDCA claim wh ich, in light of the district court's earlier rulings, was limited to a

cause of action for "bad faith" termination of Nort hview's franchises. Accordingly, the court did not admit ev idence of Northview's being forced to take unwanted cars, the warranty audits, and the failure of Chrysler to pro vide needed vehicles as substantive evidence to support a damages recovery by Northview for these alleged wrongdoings. Rather, the court admitted this eviden ce under Fed. R. Evid. 404(b) solely for the purpose o f establishing motive or intent, i.e., that Chrysler terminated

11the SSAs in July 1991 to force Northview out of bus iness in

furtherance of its business plan to terminate stand alone Jeep and Eagle dealerships and replace them with dealerships selling other Chrysler lines.

d. The September 28, 1999 Order and Record Statemen ts

As we have indicated, after the close of all of the evidence, the district court issued an order, dated September 28, 1999, granting judgment as a matter o f law in favor of Chrysler on all remaining claims pursua nt to Fed. R. Civ. P. 50(a), i.e., those under the ADDCA for

termination of Northview's franchise and for breach of contract. The court set forth its reasons for grant ing judgment in favor of Chrysler on the record. See a pp. at

1279-80.

After hearing argument from the parties, the distri ct court explained as follows:

These points that were given to me, there ar e -- here's what they say, that they say, what was it, c oercive and discriminatory practices beginning in 1988; failed to allocate and deliver the appropriate quantit y of cars; forced Northview to accept unwanted vehicles ; performed a retaliatory warranty audit.

Now, clearly the audit was performed. There' s no contract claim or Dealer Day in Court claim for-- that it's barred by the statute of limitations. F urthermore,

the audit was authorized under the contract. Improperly placed the dealership on prior ap proval for warranty and repair work. Well, that was don e in 19-- early in `88, before the audit occurred. Tha t's also

barred.

And failed to act in good faith in complying with the contract, with the ulterior purpose of reduc ing its dealer body; there is no evidence of that at all.

* * * *

Now, there just -- there isn't any evidence of these things being a violation of the contract or -- to the

extent that it's claimed a violation of the Dealer Day in

12Court Act, the only specific matters about w hich

evidence was offered occurred prior to the b ar of the -- prior to the time bar and you can't argue it

.

This is what's causing me the trouble in thi s case I am having. You know, I'm considering the Rule 5 0 motion; I'm left not knowing what it is I can charge this jury.

* * * *

I mean what the theory really is is not that they-- I don't think it can be really the termination , because the termination was automatic according to t he

contract. It's an automatic termination if i t's-- if you don't do business for seven consecutive days . It's not a matter of we have the option to do it or not to do it; it says in the agreement that it's an automatic

termination.

So what the complaint really is is that all these practices were motivated in order to get Nor thview out of business, but the way they did it was to make sure he went into bankruptcy or he became insolve nt and couldn't operate anymore. That's apparently the theory. And that because they became insolvent, they then were -- they were taken -- their assets were taken over by Mellon Bank, they couldn't possibly have done business anymore.

* * * *

All of this, like the audit for instance, is barred by the

statute of limitations. You can't claim that as a violation of the Dealer Day in Court Act. Yo u just can't. Nor can you claim it is a violation of the c ontract. In fact, the contract authorizes the audit.

This is the trouble I'm having with this cas e, and I'll tell you -- I honestly -- I don't know how I can construct a charge. I don't think I understa nd what the theories are well enough except -- and I thi nk I'm-- I don't like to do it, but I think I have to g rant the Rule 50 motion. I just don't think there is enoug h here to get to a jury with, no matter how you try to put it together.

13* * * *

So I'm going to grant the Rule 50 motion. Ma ybe the Court of Appeals will tell me what to do.

App. at 1272-76.

The district court then clarified its opinion by st ating:

I just don't think there's enough evidence t hat has been offered and produced in this case to su bmit to a jury on a Dealer Day in Court or breach of c ontract

claim. That's what I think. And I'm -- when I'm trying to figure out what to say to tell the jury t o instruct them, I don't know what to instruct them. I don't know

what breach of contract occurred that isn't barred by

the statute of limitations. I don't know wha t Dealer Day

in Court Act violation that occurred that al so isn't barred by the statute of limitations. There just isn't

any.

Id. at 1277. Northview then appealed.

II. JURISDICTION

This case, although pleaded in conjunction with numerous state contract and statutory law claims, i n part arose under the ADDCA, 15 U.S.C. SS 1221-25. Accordingly, the district court had federal questio n jurisdiction pursuant to 28 U.S.C. S 1331. Inasmuch as the parties were not of diverse citizenship, the distri ct court exercised jurisdiction over the state law claims pu rsuant to 28 U.S.C. S 1367 (supplemental jurisdiction). As No rthview appeals from a final order of the district court, a ppellate jurisdiction is appropriate under 28 U.S.C. S 1291. 4

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4. In its notice of appeal, Northview states that i t is appealing only

from the order entered September 28, 1999. Northview's o pening brief, however, additionally raises challenges to the orde rs entered March 7, 1995 and February 9, 1996. We have jurisdiction to hear the latter arguments as notices of appeal are construed to inc lude earlier orders

that were "non-final" at the time of issuance if th ere is a connection between the order specified in the notice of appeal and the earlier

orders. See Pacitti v. Macy's, 193 F.3d 766, 776-77 (3d Cir . 1999).

14III. DISCUSSION

A. Points Raised

On this appeal Northview raises the following point s:

I. The district court erred in applying the incorr ect statute of limitations to Northview's Pennsy lvania Board of Vehicles Act;

II. The district court erred in granting sum mary judgment for Chrysler on Northview's indepen dent good faith claim by disregarding Pennsylvania pre cedent regarding the existence of an independent ca use of action based on the breach of an implied dut y of good faith present in all franchise agreements;

III. The district court committed reversible error by granting Chrysler's motion for directed verd ict when the evidence presented allows a reasonable j ury to infer that Chrysler intended to get rid of their s tand alone Jeep and Eagle dealers and engaged in a cour se of

conduct to force Northview's termination of its franchise agreement.

B. Standard of Review

As we noted, to the extent appealed, the March 7, 1 995 and February 9, 1996 orders of the district court g ranted summary judgment in favor of Chrysler. Our review o f the order of the district court on a motion for summary judgment is plenary. See Seibert v. Nusbaum, Stein, Goldstein, Bronstein & Compeau, 167 F.3d 166, 170 ( 3d Cir. 1999); Petruzzi's IGA Supermarkets, Inc. v. Da rlingDelaware Co., 998 F.2d 1224, 1230 (3d Cir.1993). We will affirm only if we conclude that the pleadings, depo sitions, answers to interrogatories and admissions on file, together with the affidavits, show that the party who obtain ed summary judgment on a point was entitled to that judgment as a matter of law and that there was no g enuine dispute of material fact standing in his or her way . See Fed. R. Civ. P. 56(c).

After trial on Northview's breach of contract and A DDCA claims, the district court granted Chrysler's Rule 50(a) motion for judgment as a matter of law. We utilize a

15plenary standard to review a grant or denial of a j udgment

as a matter of law. See Shade v. Great Lakes Dredge & Dock Co., 154 F.3d 143, 149 (3d Cir. 1998); Salas v . Wang, 846 F.2d 897, 902 (3d Cir. 1988). "[A] directed ver dict is

mandated where the facts and the law will reasonabl y support only one conclusion." McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818 (19 91). A court should grant such a motion only "if, viewing the evidence in the light most favorable to the nonmova nt and giving it the advantage of every fair and reasonabl e inference, there is insufficient evidence from whic h a jury reasonably could find liability." Lightning Lube, I nc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993); see also Sh ade,

154 F.3d at 149.

C. The Appropriate Statute of Limitations for Board of

Vehicles Act Claims

The Pennsylvania Board of Vehicles Act ("BVA") prov ided at the times applicable here for a cause of action on the following terms:

(a) Action for damages.--Notwithstanding the terms, provisions or conditions of any agreement or franchise or other terms or provisions of any novation , waiver or other written instrument, any person who is or may be injured by a violation of a provision of thi s act or any party to a franchise who is so injured in hi s business or property by a violation of a provision of this act relating to that franchise, or any person so injured because he refuses to accede to a proposal f or an arrangement which, if consummated, would be in violation of this act, may bring an action f or damages and equitable relief, including injunctive r elief, in any court of competent jurisdiction.

(b) Punitive Damages.--If any person engages in continued multiple violations of a provision or provisions of this act, the court may award punitive damages in addition to any other damages und er this

act.

Pa. Stat. Ann. tit. 63, S 818.20 (renumbered in 199 6 as Pa. Stat. Ann. tit. 63, S 818.29).

16In relevant part, the BVA prohibited the following

conduct:

(a) Unlawful acts by manufacturers.--It shal l be a violation for any manufacturer, factory bran ch, distributor, field representative, officer, agent or any representative whatsoever of such manufactur er, factory branch or distributor licensed under this act to require, attempt to require, coerce or attem pt to coerce any new vehicle dealer in this Commonwealth to:

(1) Order or accept delivery of any new veh icle, part or accessory thereof, equipment or any other commodity not required by law which shall no t have been voluntarily ordered by the new vehicle dealer, except that this paragraph is not intended t o modify or supersede any terms or provisions of the fra nchise requiring new vehicle dealers to market a representative line of those vehicles which the manufacturer or distributor is publicly adve rtising.

(2) Order or accept delivery of any new veh icle with special features, accessories or equipment n ot included in the list price of such vehicles as public ly advertised by the manufacturer or distributor.

(3) Participate monetarily in an advertisin g campaign or contest or to purchase unnecessary or unr easonable quantities of any promotional materials, tra ining materials, showroom or other display decorat ions or materials at the expense of the new vehicle dealer.

(4) Enter into any agreement with the manuf acturer or to do any other act prejudicial to the ne w vehicle dealer by threatening to terminate or cancel a franchise or any contractual agreement existing betwee n the dealer and the manufacturer, except that thi s paragraph is not intended to preclude the manufacturer or distributor from insisting o n compliance with the reasonable terms or prov isions of the franchise or other contractual agreement and notice in good faith to any new vehicle deal er of the

new vehicle dealer's violation of such terms or provisions shall not constitute a violation of the act.

17Pa. Stat. Ann. tit. 63, S 818.9 (renumbered in 1996 as Pa.

Stat. Ann. tit. 63, S 818.12).

The BVA, however, does not include a statute of limitations. Further, insofar as we are aware, the Pennsylvania courts have not issued a published opi nion deciding which statute of limitations is applicable to a claim brought under the BVA. As a result, we must make a prediction as to which statute of limitations the Pennsylvania Supreme Court would apply in a BVA act ion, a process that requires us to examine the theories of liability underlying Northview's claims. See Barnes v. The American Tobacco Co., 161 F.3d 127, 151 (3d Cir. 19 98).

The district court sua sponte applied a one-year st atute of limitations based upon its determination that 42 Pa. Cons. Stat. Ann. S 5523 governed the time for bring ing a BVA claim. See app. at 14. The court, however, reli ed upon a version of section 5523 no longer in effect at th e time of

its decision or at the time this cause of action ac crued as the legislature had amended section 5523 in 1982 to read

as follows:

The following actions and proceedings must b e commenced within one year:

(1) An action for libel, slander, or invasio n of privacy.

(2) An action upon a bond given as a securit y by a party in any matter, except a bond given by a condemnor in an eminent domain proceeding.

(3) An action upon any payment or performanc e bond.

42 Pa. Cons. Stat. Ann. S 5523. The parties are in accord that none of the actions or proceedings listed in s ection 5523, as amended in 1982, are applicable to a cause of action brought under the BVA and we are in agreemen t with them. Thus, the district court erred when it a pplied a one-year statute of limitations to the BVA claims i n this matter and Chrysler acknowledges this point.

Northview argues that the district court should hav e applied Pennsylvania's "catch-all" six-year statute of

limitations to its BVA claims in which event the cl aims would have been timely. See Appellant Br. at 10 (ci ting 42

18Pa. Cons. Stat. Ann. S 5527). Section 5527 provides that

"[a]ny civil action or proceeding which is neither subject to another limitation specified in this chapter nor ex cluded from the application of a period of limitation by s ection 5531 . . . must be commenced within in six years." Because we find the BVA claims are the subject of another p eriod of limitation specified in the relevant statutory chap ter, the six-year statute of limitations is not applicable h ere.

Chrysler suggested in the district court when movin g for summary judgment against Cuda that a two-year statu te of limitations applies to the BVA claims. It takes the same position with respect to Northview's BVA claims. In support of its argument for the application of a two-year s tatute of limitations, Chrysler cites to 42 Pa. Cons. Stat. A nn. S 5524(5) which states that an "action upon a statu te for a civil penalty or forfeiture" must be commenced with in two years. See Appellee Br. at 62. Chrysler also relies on Nelson v. State Farm Mutual Automobile Ins. Co., 988 F. Su pp. 527, 531, 534 & n.11 (E.D. Pa. 1997), see Appellee Br. a t 62, as further support for its contention that a two-year statute of limitations governs BVA claims. Nelson applied sect ion 5524(7) in finding a two-year statute of limitation s applicable to an action brought under the Pennsylva nia statute for a bad faith claim against an insurer. S ee Nelson, 988 F. Supp. at 531, 534 & n.11. Thus, Northview is in effect contending that both subsections (5) and (7) are applicable.5

But Northview persuasively argues that section 5524 (5) is not applicable to the BVA because the statute is no t penal and instead is remedial. See Appellant Br. at 11-15 . While there are not any reported cases addressing the que stion of whether the BVA is remedial or penal in nature, its language expresses its remedial nature. See Pa. Sta t. Ann. tit. 63, S 818.20 (renumbered in 1996 as Pa. Stat. Ann. tit. 63, S 818.29) (providing for the recovery of damage s or

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5. In the district court when moving for summary ju dgment against Cuda, Chrysler advanced an argument that section 55 24(5) was applicable and did not rely on section 5524(7). We will not hold, however, that it waived a subsection (7) argument b ecause it did not move for summary judgment against Northview on any limitations basis.

19equitable relief by those injured by the actions of a

manufacturer). Moreover, in 1996 the legislature de leted a provision in section 818.20 that had provided for p unitive damages in the event of multiple violations on the BVA, and renumbered the section as 818.29. The legislature t hus emphasized the Act's remedial rather than penal nat ure. Further, similar provisions of the ADDCA have been found to be remedial, see Woodward v. General Motors Corp ., 298 F.2d 121, 127-28 (5th Cir. 1962), as have been like state statutes. See, e.g., American Suzuki Motor Corp. v. Bill Kummer, Inc., 65 F.3d 1381, 1388-89 (7th Cir. 1995) (Wisconsin Motor Vehicle Dealer Law is remedial bec ause enacted to protect dealers from unfair and coercive manufacturers); Mike Smith Pontiac, GMC, Inc. v. Me rcedesBenz of North America, Inc., 32 F.3d 528. 531-33 (1 1th Cir. 1994) (Florida Dealer Protection Act is remedial); Earl Evans Chevrolet, Inc. v. General Motors Corp., 598 N.E.2d 1187, 1193 (Ohio Ct. App. 1991) (Ohio Dealer Act is remed ial). Consequently, we conclude that the BVA is remedial rather than penal in nature and, accordingly, section 5524 (5) is not applicable to this action.

We are satisfied, however, that section 5524(7) is applicable here. Subsection 7 provides that any act ion or proceeding "to recover damages for injury to person or property which is founded on negligent, intentional , or otherwise tortious conduct" must be commenced withi n two years. The BVA provides a cause of action to a fran chisee that is injured in his or her business or property by a violation of the Act and Northview brought this act ion making such claims. See Pa. Stat. Ann. tit. 63, S 8 180.20.

The two-year statute of limitations set forth in se ction 5524(7) has been found to be applicable to other ca uses of action seeking a statutory remedy for injuries. As we mentioned, Nelson relied upon section 5524(7) in ap plying a two-year statute of limitations to an action brou ght under the Pennsylvania statute for a bad faith claim agai nst an insurer. See Nelson, 988 F. Supp. at 534. Further, the twoyear statute of limitations period has been held ap plicable to the Washington Franchise Investment Protection A ct. See AAMCO Transmissions, Inc. v. Harris, 759 F. Supp. 1 141, 1146 (E.D. Pa. 1991) (finding claims for fraud and failure to

20deal in good faith most analogous to those claims s et forth

in section 5524(7)). Also, claims of discrimination under the Pennsylvania Human Relations Act are subject to a t woyear statute of limitations under section 5524(7). See Raleigh v. Westinghouse Elec. Corp., 550 A.2d 1013, 1014 (Pa. Super. Ct. 1988); see also Sameric Corp. of De l., Inc. v. City of Philadelphia, 142 F.2d 582, 599 (3d Cir. 19 98) (applying section 5524 to an action under 42 U.S.C. S 1983). Here Northview argues Chrysler violated th e BVA

because of its coercive tactics used to force North view out of business and the discriminatory manner in which it treated Northview. Thus, it alleged intentional or tortious conduct and, accordingly, we predict that the Supre me Court of Pennsylvania would apply the two-year stat ute of limitations found in section 5524(7) to the BVA, at least in

the circumstances Northview asserts here.

Counsel for Northview agreed at oral argument that the BVA cause of action accrued, at the latest, when Ch rysler sent the original notice of termination of the SSAs in July 1991, which was more than two years before it filed this suit in October 1993. As a result, Northview did no t timely file its BVA claims. Accordingly, the district cour t's dismissal of the claims was proper, though for the alternate reasons we have set forth rather than for those upo n which

the district court relied.

D. Northview's Breach of Good Faith Claim

The district court granted summary judgment in favo r of Chrysler on count four of the complaint after findi ng that the UCC, as adopted by Pennsylvania, did not create an independent cause of action for breach of an implie d covenant of good faith, even though the UCC in 13 P a. Cons. Stat. Ann. S 1203 provides that "[e]very cont ract or duty within this title imposes an obligation of goo d faith in its performance or enforcement."6 The UCC, however, is not

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6. At oral argument, counsel for Northview seemed t o be arguing that the claim for breach of the duty of good faith, rather than being an independent cause of action, colored Northview's br each of contract claims. This suggestion runs contrary to the compla int and the arguments presented in the briefs. In count four of the complaint,

21the sole source of the obligation to perform in goo d faith

because the Pennsylvania courts have cited Restatem ent (Second) of Contracts S 205 for the proposition tha t every contract has an implied term that the parties will perform their duties in good faith, and in its brief Northv iew did not confine its claim that Chrysler did not act in good faith to the UCC. See, e.g., Somers v. Somers, 613 A.2d 1211 , 1213 (Pa. Super. Ct. 1992). In practice, however, the co urts have recognized an independent cause of action for breac h of a duty of good faith and fair dealing only in very li mited circumstances. See, e.g., Creeger Brick and Buildin g Supply, Inc. v. Mid-State Bank and Trust Co., 560 A.2d 151, 153, 154 (Pa. Super. Ct. 1989) (duty is limited to insur ers' dealings with insureds, franchisors' dealings with franchisees and other narrow situations); see also Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 7 01 (3d Cir. 1993) ("[U]nder Pennsylvania law, every contract do es not imply a duty of good faith.").

Courts have utilized the good faith duty as an inte rpretive tool to determine the parties' justifiable expectat ions in the context of a breach of contract action, but that du ty is not divorced from the specific clauses of the contract and cannot be used to override an express contractual t erm. See Duquesne Light Co. v. Westinghouse Elec. Corp. , 66 F.3d 604, 617-18 (3d Cir. 1995); USX Corp. v. Prime Leasing, Inc., 988 F.2d 433, 438 (3d Cir. 1993). Th us, a party is not entitled to maintain an implied duty o f good faith claim where the allegations of bad faith are" identical

to" a claim for "relief under an established cause of action." Parkway Garage, Inc. v. City of Philadelphia, 5 F.3 d at 701-

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Northview pleaded a separate and independent cause of action under the UCC. In addition, Northview argued that it "has a c ause of action based upon damages incurred from Chrysler's breach of thi s implied good faith duty." See Appellant Br. at 16. We find Northview w ould not be entitled to recovery for breach of the duty of good faith un less an independent cause of action could be pleaded. Accordingly, we r eview the law of Pennsylvania to determine if such a cause of action exists and to predict whether the Supreme Court of Pennsylvania would all ow for such a cause of action. Our disposition rejects the existe nce of this cause of

action on the facts here both at common law and und er the UCC.

2202 (noting that Parkway's allegations concerning th e closing

of a garage in bad faith were identical to its alle gations under 42 U.S.C. S 1983 and, therefore, there was no reason to imply a separate cause of action for breach of a duty of good faith); see also D'Ambrosio v. Pennsylvania Na t'l Mut. Cas. Ins. Co., 431 A.2d 966, 970 (Pa. 1981) (court refused to recognize separate cause of action for breach of duty of good faith where adequate remedy was provided under Unfair Insurance Practices Act.); Creeger Brick v. Mid-State Bank, 560 A.2d at 154-55; AM/PM Franchise Ass'n v. Atlantic Richfield Co., 542 A.2d 90, 93-94 (Pa. Sup er. Ct. 1988), aff 'd in part & rev'd on other grounds 584 A.2d 915 (Pa. 1990); Standard Pipeline Coating Co. v. Solomo n & Teslovich, Inc., 496 A.2d 840, 843 (Pa. Super. Ct. 1985) (court would not create a tort remedy where there w as an adequate remedy to address the claims in existing t orts and contracts law).

In view of these precedents, we believe that if a p laintiff alleging a violation of the implied covenant of goo d faith

also were to file a claim for fraud based on the sa me set of facts, Pennsylvania courts likely would decline to proceed with the claim alleging bad faith. Instead, Pennsyl vania courts would consider the other claims in the plain tiff 's complaint. Such an approach limits the use of the b ad faith

cause of action to those instances where it is esse ntial. The covenant of good faith necessarily is vague and amo rphous. Without such judicial limitations in its applicatio n, every plaintiff would have an incentive to include bad fa ith allegations in every contract action. If construed too broadly, the doctrine could become an all-embracing statement of the parties' obligations under contrac t law, imposing unintended obligations upon parties and destroying the mutual benefits created by legally b inding agreements. Therefore, we predict that the Pennsylv ania Supreme Court would not extend the limited duty to perform a contract in good faith to a situation suc h as that presented here in which the parties in great detail set forth their mutual obligations and rights in the SSAs. We are further encouraged to reach this result because Con gress in the ADDCA, and the legislature in the BVA, speci fically regulated the relationship between automobile deale rs and manufacturers. Overall, we are satisfied that, in t he face of

23these detailed provisions setting forth both contra ctually

and statutorily the parties' obligations and rights , we should not recognize an independent cause of action for breach of the implied covenant of good faith in thi s case.7 Accordingly, the district court appropriately grant ed summary judgment on this claim.

E. Northview's ADDCA Claim

The ADDCA is a remedial statute enacted to redress the economic imbalance and unequal bargaining power between large automobile manufacturers and local dealerships, protecting dealers from unfair termina tion and other retaliatory and coercive practices. See, e.g. , Maschio v. Prestige Motors, 37 F.3d 908, 910 (3d Cir. 1994); H anley v. Chrysler Motors Corp., 433 F.2d 708, 710-11 (10th C ir. 1970). It is, essentially, a supplement to the nati onal antitrust laws, passed to counter-balance the econo mic leverage a manufacturer has over its ostensibly independent dealers, and its "control over [its] pr oduct in what amounts to quasi-integration to the retail lev el of distribution." H.R.Rep. No. 2850, 84th Cong., 2d Se ss. 1, 3, reprinted in 1956 U.S.C.C.A.N. 4596, 4596, 4598. Th ere are four elements of an ADDCA cause of action: (1) the plaintiff must be an automobile dealer; (2) the def endant must be an "automobile manufacturer" engaged in commerce; (3) there must be a manufacturer-dealer relationship embodied in a written franchise agreem ent; and (4) the plaintiff must have been injured by the defendant's failure to act in good faith. See 15 U .S.C. S 1222; Maschio, 37 F.3d at 910; Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 441 (9th Cir. 1 979).8

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7. In this regard, we note that we have stated that a federal court in a diversity case should be reluctant to expand state common law. See Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96, 101 (3d Cir. 1994). That principle also should apply when, as here, a court is exercising supplemental jurisdiction over state law claims. Af ter all, regardless of the source of its jurisdiction, the principle is va lid because a federal court is applying state law.

8. Clearly, the first three of the required element s of an ADDCA claim have been met in this case. The only question at tr ial was whether Northview presented facts which would have allowed a reasonable jury to have concluded that Chrysler failed to act in good faith, as that term is defined by the ADDCA.

24It is axiomatic that any inquiry as to the meaning of a

statute must begin with its language. The Act defin es the term "good faith" as "the duty of each party to any franchise . . . to act in a fair and equitable mann er toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or i ntimidation from the other party. . . ." 15 U.S.C. S 1221(e). T he Act, however, does not protect dealers against all unfai r practices, but only against those breaches of good faith "evidenced by acts of coercion or intimidation." Sa lco Corp. v. General Motors Corp., 517 F.2d 567, 573 (10th Ci r. 1975). The case law plainly requires actual, or thr eatened,

coercion or intimidation as an element of an ADDCA claim. See General GMC, Inc. v. Volvo White Truck Corp., 9 18 F.2d 306, 308 (1st Cir. 1990); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 575 (3d Cir. 19 86); Bob Maxfield, Inc. v. American Motors Corp., 637 F. 2d 1033, 1038 (5th Cir. 1981). Consequently, it is well esta blished that the duty of "good faith" dealing imposed by th e Act must be given a narrow, rather than expansive, construction. See Autohaus Brugger, Inc. v. Saab Mo tors, Inc., 567 F.2d 901, 911 (9th Cir. 1978); Milos v. F ord Motor Co., 317 F.2d 712, 715-16 (3d Cir. 1963). For examp le, when assessing the elements of a claim under sectio n 1221(e), the Court of Appeals for the Ninth Circuit noted

that:

There is no question that the failure to exe rcise good faith within the meaning of the Act has a li mited and restricted meaning. It is not to be construe d liberally. . . . It does not mean `good faith' in a haz y or general way, nor does it mean unfairness. The existe nce or nonexistence of `good faith' must be determi ned in the

context of actual or threatened coercion or

intimidation.

Autohaus Brugger, 567 F.2d at 911 (citations omitte d).

The case law interpreting the ADDCA provides some guidelines for determining whether a manufacturer h as been guilty of coercion or intimidation. Thus, a manufacturer's coercion of a dealer into relinquish ing the right to sell competing car lines may be actionable , at least if the dealer's franchise agreement gives it the ri ght to make

25such sales. See, e.g., Cabriolet Porsche Audi, Inc. v.

American Honda Motor Co., 773 F.2d 1193, 1210 (11th Cir. 1985) ("We have little doubt that had Honda threate ned to deny Cabriolet . . . cars to which it was entitled, unless Cabriolet provided an exclusive facility, this woul d be evidence of coercion"); Rea v. Ford Motor Co. , 497 F.2d 577, 582-87 (3d Cir. 1974). Similarly, a manufacturer's efforts to drive a dealer out of business can qualify as bad f aith. See Junikki Imports, Inc. v. Toyota Motor Co., 335 F. S upp. 593, 595 (N.D. Ill. 1971); see also Randy's Studebaker S ales, Inc. v. Nissan Motor Corp., 533 F.2d 510, 516 (10th Cir. 1976). Also, an automobile manufacturer's coercive attempt to

force unwanted automobiles on a dealer constitutes" bad faith." See David R. McGeorge Car Co. v. Leyland Mo tor Sales, Inc., 504 F.2d 52, 55-56 (4th Cir. 1974).

On the other hand, if an ADDCA defendant has objectively valid reasons for terminating its relat ions with a dealer, the dealer cannot prevail in an ADDCA actio n absent evidence that the defendant had an ulterior motive for its action. See Carroll Kenworth Truck Sales, I nc. v. Kenworth Truck Co., 781 F.2d 1520, 1527 & n.4 (11th Cir. 1986); see also York Chrysler-Plymouth, Inc. v. Chr ysler Credit Corp., 447 F.2d 786, 791-92 (5th Cir. 1971) ("[T]hat Chrysler Motors may have had grounds for lawful termination of the automobile dealership does not p ermit this court to set aside a jury verdict. . . . The[A DDCA] is not as concerned with what the parties did as it is concerned with why they did it.").

Our review of the district court's decision on Chry sler's Rule 50 motion of necessity is affected by the cour t's earlier ruling concerning the statute of limitations and it s repeated decisions to admit certain evidence only as proof o f motive or intent. As noted, the district court concluded t hat the statute of limitations barred allegations premised upon Chrysler forcing Northview to take delivery of cars that it did not need and forcing it to join an advertising campaign. The court also prevented Northview from proffering evidence of Chrysler's failure to provide vehicles and parts , the performance of the warranty audit and the failure t o provide proper training as direct evidence for a ba sis for Northview recovering damages. See id. at 24-26. As a

26result, the court admitted evidence of such "coerci ve"

activity only to demonstrate motive or intent -- i. e., that Chrysler's July 1991 termination of the SSAs was motivated by its desire to force Northview out of b usiness in furtherance of Chrysler's business plan to eliminat e stand

alone dealers.

The more direct evidence that Northview offered at trial supporting this theory concerned the fact that the SSAs were terminated in July 1991 and that certain other stand alone Jeep and Eagle Dealerships were closed and th en reopened after having been combined with other Chrysl er dealerships. From this evidence, Northview argues t hat a reasonable jury could have concluded that Chrysler coerced or intimidated it into closing its dealership so th at Chrysler could pair the dealership with another of its vehic le brands.

At argument before us, counsel for Northview confir med that he did not challenge the ADDCA statute of limi tations and evidentiary rulings of the district court.9 Rat her,

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9. In its opening brief, Northview does not make an y mention of the February 9, 1996 order in its challenges to the dis trict court's decision on the Rule 50 motion. In fact, Northview makes onl y an oblique onesentence reference to the statute of limitations is sue. See Appellant Br. at 29. Nowhere does Northview expressly challenge t he statute of limitations ruling or the ruling of the district co urt to admit certain evidence only as proof of motive or intent. The ent ire focus of

Northview's argument is on the fact that, in light of the evide nce of motive and the other evidence at trial, its case on wrongful termi nation was sufficient

to allow a jury to find in its favor on the ADDCA clai m.

Interestingly, even though Chrysler prevailed, it c hallenges the

admission of the motive or intent evidence. While C hrysler's argument along these lines is substantial, see Becker v. ARC O Chemical Co., 201 F.3d 176 (3d Cir. 2000), we will assume without dec iding that the district court properly admitted the evidence as be aring on Chrysler's motive or intent. Thus, in considering Northview's appeal from the order granting Chrysler judgment as a matter of law, we a re considering the Rule 404(b) evidence. Accordingly, we are not follo wing our long-standing practice, see Lightning Lube v. Witco, 4 F.3d at 11 98-1200, approved by the Supreme Court in Weisgram v. Marley Co., 120 S. Ct. 1011, 1019-22 (2000), of considering an appeal from an order gran ting a judgment as a matter of law only on the basis of evidence we de termine was admitted properly.

27Northview argues that when the evidence it presente d is

considered as proof of Chrysler's bad motive or int ent, a reasonable jury could have concluded that Chrysler did not act in good faith when it terminated Northview. 10

While evidence of improper motive may be sufficient in certain franchise terminations cases to create a ju ry question, see Carroll Kenworth Truck Sales, 781 F.2 d at 1527 & n.4; York Chrysler-Plymouth, 447 F.2d at 791 -92, the evidence presented here was wholly insufficient to raise an inference that Chrysler was motivated by a desir e to close Northview as part of a plan to phase out stan d alone Jeep and Eagle dealerships. The theory of Northview 's case appears to rest upon the existence of what has been termed

Plan 2000. Northview was not allowed to reference P lan 2000 by name at the trial because it did not come i nto

existence until after Northview's SSAs were termina ted. See app. at 68, 164-65. Northview argues, however, that the plan was in place before its formal adoption and op erated to eliminate stand alone Jeep and Eagle dealerships like Northview and replace them with dealerships selling both Jeeps and Eagles and other Chrysler lines such as D odge or Plymouth.

In support of its Plan 2000 theory, Northview prese nted evidence of a number of stand alone Jeep and Eagle dealerships that were closed only to have been reop ened later at nearby dealerships of other Chrysler lines . See, e.g., app. at 550-54 (listing 6 Jeep and Eagle dealership s, of over 50 in its region, that were closed and combined wit h another Chrysler brand). There is noticeably absent from the evidence Northview presented, however, any evid ence that Chrysler forced these Jeep and Eagle dealershi ps to close, that the closed dealerships suffered difficu lties similar to Northview, or that the closing and later reopening of the dealerships was not a beneficial change for the

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10. Northview has waived any argument that the dist rict court erred in dismissing its breach of contract cause of action a s all of its arguments in its brief with respect to the judgment as a matt er of law are addressed to the ADDCA. See Society Hill Tower Owners' Ass'n v. Rendell, 210 F.3d 168, 185 (3d Cir. 2000). In any event, the district court correctly granted the Rule 50(a) motion on all issues being tried.

28parties involved. Northview asserts that a reasonab le

inference to be drawn from evidence of the mere clo sing of certain Jeep and Eagle dealerships is that Chrysler was motivated to bring about the wrongful termination o f all stand alone Jeep and Eagle dealerships such as Nort hview. Based upon the evidence presented, however, this is not a

reasonable inference from the evidence but instead is a leap of faith. As mentioned, there was no evidence prese nted to suggest any connection between the closings or to s uggest that the closings resulted from coercion on the par t of Chrysler.

As argued by Chrysler:

If this marketing plan had been in effect si nce 1987, one would expect that Northview would have b een able to supply evidence of one dealer that was te rminated or consolidated pursuant to the plan. If Chrysl er had a four-year old plan to get rid of stand alone Jeep/Eagle dealers, where was the evidence of a single dealer that fell prey to the plan? There was none.

Appellee Br. at 36. Chrysler is correct on this poi nt; Northview did not present evidence of any dealershi p "falling prey" to the alleged marketing plan. In th e absence of such evidence, or at least some evidence that th e dealership closings that were proffered were not de sired by the owners and were connected in some manner, North view is not entitled to the inference it desires, namely that since 1987 Chrysler was operating under a plan to close a ll stand alone Jeep and Eagle dealerships. No reasonable jur y could draw this inference from the facts presented at tri al.

As mentioned, the ADDCA does not protect dealers against all unfair practices, but only against thos e "evidenced by acts of coercion or intimidation." Sa lco Corp. v. General Motors Corp., 517 F.2d at 573. The case law plainly requires a plaintiff to present evidence of actual, or threatened, coercion or intimidation. See Bob Maxfi eld, Inc., 637 F.2d at 1038. While we recognize that a manufac turer could coerce a dealer by placing it in a difficultf inancial position, Northview has not presented evidence of c oercion or intimidation in this case. Although there may be evidence that Chrysler and Northview had difficulty

29understanding and dealing with each other, such dif ficulty

is not actionable under the ADDCA. See, e.g., Gage v. General Motors Corp., 796 F.2d 345, 350-51 (10th Ci r. 1986) (arbitrary decision making on part of manufac turer does not constitute violation of ADDCA). A difficul t business relationship is not, in and of itself, coercion or intimidation.

In the absence of evidence from which a reasonable jury could have inferred that Chrysler coerced or intimi dated Northview, or threatened coercive action against it , the district court correctly granted Chrysler's Rule 50 Motion.11

In addition, the other evidence of wrongful intent proffered by Northview was insufficient to create a question for the jury. For example, Northview presented evid ence that Chrysler did not provide the dealership with s ufficient numbers of the more desirable and faster selling mo dels of the Jeep Cherokee. The evidence offered, however, demonstrated that dealers across the country were experiencing similar problems. See exhs. at 1-2, 3, 4.

Northview did not offer evidence that it suffered s hortages different than those of any other dealer. Thus, in the absence of evidence of discriminatory treatment, no jury reasonably could have concluded that Chrysler was motivated by its desire to close the Northview deal ership in its allocation decisions and thus was coercing Nort hview by injuring it financially.

Further, despite arguing that it was forced to orde r unwanted vehicles, Northview did not present any ev idence of specific unwanted vehicles that Chrysler forced it to order. Rather, Northview presented evidence that Ch rysler

recommended that Northview order the mix of vehicle s that Chrysler was producing in order to receive its full allocation of vehicles. See app. at 292. From this evidence, N orthview

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11. Chrysler argues that Northview's failure to tak e care of its

customers, or otherwise properly run its business, caused its closing. While this may be so, and indeed we are tempted to acknowledge as much, particularly in view of Northview's consumer fraud problems, we refrain from doing so as there is a dispute of fact on this point, and we are obliged in considering the Rule 50(a) order to view the evidence in a light most favorable to Northview. Our point is that rega rdless of what Northview did or did not do, Chrysler was entitled to a judgment as a matter of law with respect to its conduct.

30argues that Chrysler was attempting to coerce the

dealership into ordering unwanted vehicles. The onl y fair reading of the evidence, however, is that Chrysler was suggesting that Northview order the mix of vehicles so that it could be guaranteed to receive more vehicles. Th ere was nothing preventing Northview from ordering a greate r number of more desirable vehicles than it was alloc ated,

but it would have had to wait for other dealers' al locations

to be met first and then have its excess orders sat isfied by any surplus. See app. at 809-10. No reasonable jury could

have concluded that such actions were coercive with in the meaning of the ADDCA. See, e.g., Colonial Dodge, In c. v. Chrysler Corp., 11 F. Supp.2d 737, 744 (D. Md. 1996 ) (granting summary judgment in favor of manufacturer upon finding that under ADDCA dealer is entitled only to cars due under allocation system, not to all the automob iles it requests).

Also, the evidence presented at trial merely demons trated that Chrysler, on occasion, either urged or recomme nded that Northview order, stock, and sell all models of all vehicle lines. The SSAs, however, obligated Northvi ew to market and sell all Jeep and Eagle models energetic ally and aggressively. See exhs. at 152. In addition, neithe r the

recommendations of a manufacturer nor the actual

solicitation of vehicle orders rises to the level o f a violation of the ADDCA and they hardly can be viewed as coerc ive tactics. See Autohaus Brugger, Inc., 567 F.2d at 91 3. At trial, Northview did not present evidence to sugges t that Chrysler did anything more than make suggestions or recommendations. While it may be true that Chrysler stated the only way Northview could be guaranteed more veh icles would be to order in the suggested manner, the evid ence could not support a conclusion that Chrysler used c oercion

or intimidation to force Northview to order unwante d

vehicles. Northview was free to order the vehicles it desired, in the numbers it desired, if it were willing to ta ke the chance that there would be a sufficient supply afte r all

dealer allocations were met to meet its demand.

We recognize that Northview presented evidence that Chrysler failed to explain properly its warranty reimbursement system and the EPUR. See app. at 313- 14,

31332. Again, this problem was one that dealers suffe red

universally. See id. at 315. The evidence presented could not provide a foundation for a conclusion that Chry sler subjected Northview to discriminatory treatment, i. e., that Chrysler singled it out for warranty audits or that stand alone dealerships in particular were subjected to t he audits. Moreover, Northview's evidence did not perm it a finding that: (1) the warranty audit was not warran ted; (2) its placement on a more restrictive warranty approv al system was not appropriate under the circumstances; or (3) the audit or Northview's placement on the more rest rictive approval system interfered in any way with its abil ity to operate the dealership profitably. In the absence o f sufficient evidence to support these conclusions, i t would be unreasonable for a jury to infer that Chrysler u sed the warranty audit as a means of coercing Northview to relinquish its franchise.

Northview suggests that, when viewing the evidence, a reasonable jury could have concluded that Chrysler, by its actions and omissions, made it impossible for North view to operate profitably. Acceptance of this argument, ho wever, would require viewing evidence concerning vehicle o rdering and supply, warranty audits, and animosity as subst antive evidence to support a damages recovery. As mentione d, Northview was prevented from proffering such eviden ce for that purpose and has not raised any argument here t o suggest that the court's limitation was erroneous. Accordingly, Northview is not entitled to the infer ence it desires. Moreover, the evidence could not support a n inference of coercion or intimidation as is require d by the

ADDCA.

As a final matter, we note that the SSAs were termi nated by operation of section 28, which states that the f ailure of a dealership to operate its business for seven cons ecutive business days automatically terminates the SSAs wit hout notice. See exhs. at 162. Thus, notwithstanding Chr ysler's having mailed Northview a notice of termination in July 1991, in light of our analysis of the evidence we a re satisfied that a reasonable jury could not have con cluded that the termination of the SSAs pursuant to sectio n 28 supports a cause of action under the ADDCA. See, e. g.,

32Dick Winning Chrysler-Plymouth, Inc. v. Chrysler Mo tors

Corp., 750 F.2d 895, 899-900 (11th Cir. 1985) (no v iolation

of ADDCA where franchise termination was in accorda nce with express terms of agreement); Globe Motors, Inc . v. Studebaker-Packard Corp., 328 F.2d 645, 648-49 (3d Cir. 1964). Overall, we are satisfied that the district court properly granted Chrysler's motion for judgment as a matter of law, even when we exercise the generous standard of review owed to Northview on its appeal from the judgment entered pursuant to Rule 50(a).

IV. CONCLUSION

For the reasons set forth above, we affirm the Marc h 7, 1995 and February 9, 1996 orders of the district co urt granting summary judgment in favor of Chrysler as t o Northview's BVA and UCC good faith claims. We also affirm the September 28, 1999 order granting Chrysler's mo tion for judgment as a matter of law pursuant to Rule 50 (a).

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

33