WARREN SECKLER AND WARSEC, INC., A FLORIDA CORPORATION, PLAINTIFFS-APPELLANTS,
v.
STAR ENTERPRISE, A NEW YORK PARTNERSHIP, DEFENDANT-APPELLEE; WARREN SECKLER, WARSEC INC., A FLORIDA CORPORATION, PLAINTIFFS-APPELLEES, V. STAR ENTERPRISE, A NEW YORK PARTNERSHIP, DEFENDANT-APPELLANT
Dec. 4, 1997 PER CURIAM: Star’s Petition for Clarification is GRANTED to the extent that we specifically confirm that we did not rule on the merits of Star’s Motion to Dismiss the state law claims on any grounds other than preemption. The slip opinion, Seckler v. Star, Oct. 21, 1997, 11th Cir., should be amended as follows [Editor’s Note: Amendments incorporated for purpose of publication.] . For purposes of this opinion, we refer to Seck-ler and Warsec, Inc. collectively as "Seckler.” . PMPA § 2802(b)(3)(D)(iii) provides a franchisee with only a ninety-day period after notification of a franchisor's intention to sell the premises ánd, thereby, terminate the franchise. During that time, the franchisee must position himself to be ready to take title at the end of the ninety days. . Star was not, however, within its rights in misleading Seckler, as he alleges.
We address this point in Section B. . This result is not inconsistent with our conclusion above that Star had the right to rescind its offer to sell Seckler the franchise; although the PMPA gives Star the right to rescind an offer to sell, it does not give Star the right to mislead Seckler in the process, as he alleges. . Shukla would at first seem to make the opposite conclusion, as the court there held that the PMPA did not apply to Shukla’s constructive termination claim and preempted his fraud claim.
However, the PMPA would have applied to the non-renewal of his franchise had it not been a trial franchise, which may be non-renewed without cause. Shukla, 115 F. 3d at 852.
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Authorities Cited (15 total)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986)
- Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (U.S. 1982)
- Fitzpatrick v. City OF Atlanta, 2 F.3d 1112 (11th Cir. 1993)
- Bellmore v. Mobil OIL Corp., 783 F.2d 300 (2d Cir. 1986)
- Timothy O'Shea t/a Tim's Amoco v. Amoco OIL Co., 886 F.2d 584 (3d Cir. 1989)
- Jeetendra L. Shukla v. BP Exploration & OIL, Inc., 115 F.3d 849 (11th Cir. 1997)
- Consumers Petroleum Co. v. Texaco, Inc., 804 F.2d 907 (6th Cir. 1986)
- Cont'l Enters., Inc. v. The Am. OIL Co. & Amoco Oil Co., 808 F.2d 24 (8th Cir. 1986)
- Pride v. Exxon Corp., 911 F.2d 251 (9th Cir. 1990)
- Jimenez v. BP OIL, Inc., 853 F.2d 268 (4th Cir. 1988)