Full opinion text
OPINION GUY, District Judge. This case was brought by William McAlpine and eleven other individuals (hereinafter referred to as “plaintiffs”) against AAMCO Automatic Transmissions, Incorporated, a Pennsylvania Corporation and the largest franchisor of transmission repair shops in the United States (hereinafter referred as to “defendant”). Plaintiffs were all licensed franchisees of AAMCO operating in .the greater Detroit area when they broke away from AAMCO in November, 1973, to form Interstate Transmissions, the competing transmission repair business that is the subject of this lawsuit. When plaintiffs broke away from AAM-CO on November 29, 1973, they instituted suit against AAMCO in this court. Their complaint alleged that certain AAMCO marketing and tie-in practices had constituted a breach of contract and violation of antitrust laws, such breach and violation entitling plaintiffs to leave AAMCO and go into business as Interstate Transmissions. AAMCO answered by defending its practices, then counterclaimed alleging that when plaintiffs broke away from AAMCO they wrongfully terminated Franchise Agreements, violated antitrust laws, infringed on AAMCO’s trademark, and misappropriated the AAMCO merchandising system. The case was tried by this court without a jury for nine days concluding on November 3, 1977. At that time the court found in favor of plaintiffs in part, in favor of defendant in part, and took certain matters under advisement. After careful consideration of the evidence, stipulations and pertinent authorities, the court has now concluded that the contracts at issue were breached by plaintiffs and that damages in the amount of $412,708.49 are owing to defendant. During the trial it became evident that the major theme of this case would concern the problem of the successful franchisee who becomés dissatisfied in his franchise arrangement and desires to sever relations with the franchisor. This is an emerging and increasing phenomenon in franchisee-franchisor relationships. See Impact of Franchising on Small Business, A Report of the Select Committee on Small Business, United States Senate, November 13, 1970. See also, “Problem Areas of Franchising,” Federal Trade Commission Study; Appendix IV, reprinted in Antitrust Laws and Trade Regulation, Von Kalinowski, Vol. 9, App. III-A-105 (1976). This phenomenon may involve the franchisee who finds that the profits he anticipated from gross sales are being consumed by an array of payments to the franchisor not revealed to the franchisee prior to operation. Or, the franchisee may find that the profits he expected to make are substantially less than the franchisor’s promotional statements led him to believe would be forthcoming. See “Problem Areas of Franchising,” Federal Trade Commission Study, supra. Sometimes, however, as in this case, the scenario is different. The franchise arrangement starts as a mutually advantageous business relationship. Both the franchisor and franchisee contribute to this arrangement in order to obtain benefits they could not obtain independently. The franchisor’s contribution is a combination of several factors: trademark, recognized product or service, experience, advertising and management support. The franchisee’s contribution is capital, day-to-day management of the franchise, and the payment of franchise fees — usually in the form of a set percentage of gross franchise sales once the franchise has .become operational. See Antitrust Laws and Trade Regulation, Von Kalinowski, § 65.01(2), and Appendix III— A-108, Vol. 9 (1976) for a good discussion of this subject. The franchisor benefits from the use of franchisee capital, fees, and lower-level management, for it allows the franchise organization to expand more rapidly than would otherwise be possible. Similarly, the benefits to the franchisee are: greater independence than the status of an “employee” would confer, the opportunity to make money, and a reduction — by virtue of a proven trademark and system — in the risk of failure associated with owning and operating a small business. As the franchise becomes successful, however, the partnership arrangement which seemed reasonable at its inception sometimes appears burdensome to the franchisee. The franchisee whose hard work has enabled him to carve out a niche of profitability comes to regard the payment of franchise fees as restricting that profitability. The franchisee who has learned a system and has reaped its benefits wonders if his new-found knowledge of the trade could enable him to prosper to a greater degree as an independent. Status, success, name, and product all seem brighter to an independent businessman or as franchisee under different terms. ■ Such a situation became a reality for the plaintiffs in November, 1973, when they broke their Franchise Agreements with AAMCO. After four years of litigation, this court now makes the following dispositions on the issues raised: A. PLAINTIFFS’ TIE-IN CLAIM: Plaintiffs contend that AAMCO has violated Section 1 of the Sherman Act, 15 U.S.C. § 1, by imposing a tie-in arrangement in connection with the licenses granting plaintiffs use of AAMCO’s trademark. The contention is that AAMCO, by virtue of its dominant economic power over its franchisees, used threats of disenfranchisement to coerce plaintiffs into purchasing AAMCO transmission repair and automotive parts for use in each plaintiff’s repair shop. As a result of this alleged coercion and abuse of dominant power by AAMCO, the plaintiffs claim they were forced to purchase trans-' mission repair and automotive parts at prices higher than offered in the open market. Plaintiffs cite several types of acts which could constitute a tie-in violation: (1) non-negotiable contractual provisions; (2) threats of termination for not buying AAMCO parts; (3) publicizing disenfranchisement for not buying AAMCO parts; (4) allegations of consumer fraud for not buying AAMCO parts; (5) regular inspections to “police” the alleged tie; (6) the use of computerized records to “police” the alleged tie. At the outset, however, plaintiffs’ theory that a contractual tie-in arrangement was accomplished via any non-negotiable contract provisions must be rejected. Pursuant to a November 1969 court order AAMCO agreed to modify its Franchise Agreements to allow franchisees to “install parts of equal quality, type, and quantity” to AAMCO parts or assembly sets (Pretrial Order, Exhibit A). Although the modification allowed plaintiffs to purchase parts only from those vendors determined by AAMCO to offer “equal quality” parts, it is well established that the licensor of a registered trademark owes a duty to the public to monitor the quality of parts sold by its licensed dealers. Siegel v. Chicken Delight, Inc., 448 F.2d 43, at 51 (9th Cir. 1971). For a licensor, through relaxation of quality control, to permit inferior products to be presented to the public under its licensed mark might well constitute a misuse of the mark. 15 U.S.C. §§ 1055, 1127. AAMCO therefore had the right, if not the duty, to establish a minimum “equal quality” standard for the transmission parts used by its franchisees. An illegal tie-in need not be accomplished by a formal contractual provision, however. Advance Business Systems & Supply Co. v. SCM Corporation, 415 F.2d 55, 63-64 (4th Cir. 1969). In the absence of a formal provision, the presence of an illegal tying condition may be inferred from an extrinsic course of conduct supplementing any written contract. Osborn v. Sinclair Refining Co., 286 F.2d 832 (4th Cir. 1960). Such conduct might consist of proof of a persistent and deliberate course of coerfcive dealing through misrepresentations and threats of cancellation, N. W. Controls, Inc. v. Outboard Marine Corp., 333 F.Supp. 493, at 511 (D.C.Del.1971), the crucial factor being that economic power be utilized to coerce the purchase of the tied product. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277 (1953). The three requisites of a per se illegal non-contractual tying arrangement are thus: (1) There must be two separate products, one the tying product which cannot be obtained without purchase of the tied product. Times-Picayune Publishing Co., supra. (2) The seller must have sufficient economic power with respect to the tying product to appreciably restrain competition in the market for the tied product. Northern Pacific Ry. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). (3) The antitrust violation must affect a “not insubstantial” amount of commerce. International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). The alleged tying product in this case is the AAMCO trademark, and the tied product is the AAMCO transmission repair kit and parts. AAMCO urges this court to hold that a trademark may not serve as the tying product. Two circuits, though, persuaded by Justice Lumbard’s views in dissent in Susser v. Carvel Corp., 332 F.2d 505 (2nd Cir. 1964), have held that a trademark can be a tying item separate and distinct from items to be used in the operation of-the trademarked franchise. Warriner Hermetics, Inc. v. Copeland Refrigeration Corp., 463 F.2d 1002 (5th Cir. 1972); Siegel v. Chicken Delight, Inc., 448 F.2d 43 (9th Cir. 1971). This court elects to follow the position of those circuits. The lengthy rationale for this position, enunciated by Judge Merrill in the Siegel case, is worth repeating: The historical conception of a trademark as a strict emblem of source of the product to which it attaches has largely been abandoned. The burgeoning business of franchising has made trade-mark licensing a widespread commercial practice and has resulted in the development of a new rationale for trade-marks as representations of product quality. This is particularly true in the case of a franchise system set up not to distribute the trademarked goods of the franchisor, but, as here, to conduct a certain business under a common trade-mark or trade name. Under such a type of franchise, the trademark simply reflects the goodwill and quality standards of the enterprise which it identifies. As long as the system of operation of the franchisees lives up to those quality standards and remains as represented by the mark so that the public is not misled, neither the protection afforded the trade-mark by law nor the value of the trade-mark to the licensee depends upon the source of the components. This being so, it is apparent that the goodwill of the Chicken Delight trademark does not attach to the multitude of separate articles used in the operation of the licensed system or in the production of its end product. It is not what is used, but how it is used and what results that have given the system and its end product their entitlement to trade-mark protection. It is to the system and the end product that the public looks with the confidence- that established goodwill has created. Thus, sale of a franchise license, with the attendant rights to operate a business in the prescribed manner and to benefit from the goodwill of the trade name, in no way requires the forced sale by the franchisor of some or all of the component articles. Just as the quality of a copyrighted creation cannot by a tie-in be appropriated by a creation to which the copyright does not relate, United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), so here attempts by tie-in to extend the trademark protection to common articles (which the public does not and has no reason to connect with the trade-mark) simply because they are said to be essential to production of that which is the subject of the trade-mark, cannot escape antitrust scrutiny. The requirement of sufficient economic or market power over the tying item is not a difficult one to meet in the case at bar. In Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, at 502-504, 89 S.Ct. 1252, 1258, 22 L.Ed.2d 495 (1969), it is stated: The standard of “sufficient economic power” does not, as the District Court held, require that the defendant have a monopoly or even a dominant position throughout the market for the tying product. Our tie-in cases have made unmistakably clear that the economic power over the tying product can be sufficient even though the power falls far short of dominance and even though the power exists only with respect to some of the buyers in the market. . Accordingly, the proper focus of concern is whether the seller has the power to raise prices, or impose other burdensome terms such as a tie-in, with respect to any appreciable number of buyers within the market. Essentially, the court seems to be saying that if one has imposed a tie, one had sufficient economic power to do so. See, AAMCO v. Tayloe, 1975—2 Trade Cases, H 60,666. In any event, the requisite power is presumed to exist where the tying product is patented or copyrighted. United States v. Loew’s, Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 1 (1962). This presumption was extended to trademarks in the Siegel and Warriner Hermetics cases, and the same presumption is applicable here. AAMCO is a nationwide business whose name is well known in the field of automotive transmissions. Where the owner of a well known and uniquely desirable trademark imposes a tie on its franchises, the element of economic power required by Fortner Enterprises is met. The very fact that AAMCO, prior to 1969, had imposed a tie on its many franchises evidences the power to have done so. That alone seems to meet the standard enunciated in Fortner Enterprises. More than an insubstantial amount of commerce is affected by this claimed tie-in arrangement. The requirement that a “not insubstantial” amount of commerce be involved makes no reference to the scope of any particular market or to the share of that market foreclosed by the tie But normally the controlling consideration is simply whether a total amount of business, substantial enough in terms of dollar-volume so as not to be merely de minimis, is foreclosed to competitors by the tie. Fortner Enterprises, Inc. v. United States Steel Corp., supra, 394 U.S. at 501, 89 S.Ct. at 1257. In Fortner Enterprises, the court stated that $190,000 was not insubstantial but in any event, “thé relevant figure is the total volume of sales tied by the sales policy under challenge . . .” Id. at 502, 89 S.Ct. at 1258. Evidence submitted by AAMCO shows that the plaintiffs purchased at least $40,000 worth of repair parts from AAMCO in the fiscal years 1971-1973. (AAMCO Post Trial Brief, Table A). Such amount does not encompass the total dollar value of repair parts purchased by plaintiffs from AAMCO during the relevant damage period, as the entire damage period runs from November 1969 to November 1973. But even the $40,000 worth of parts purchased by plaintiffs cannot be deemed “insubstantial” under Fortner Enterprises analysis. This court therefore follows the holding in AAMCO v. Tayloe, supra, where Judge VanArtsdalen concluded that $50,000 worth of parts purchased from AAMCO could not be “considered insignificant in Fortner Enterprises terms.” Id. at 11 67,916. Having concluded, as a matter of law, that plaintiffs’ allegation could support a claim of per se illegality, this court concludes, as a matter of fact, that plaintiffs have fallen short of proving coercion in their tie-in claim. In order to establish an illegal tying arrangement arising from business conduct rather than express contract, franchisees must prove that they were coerced, not merely persuaded, into purchasing the products at issue here. See Ford Motor Co. v. United States, 335 U.S. 303, at 316-320, 69 S.Ct. 93, 93 L.Ed. 24 (1948); Abercrombie v. Lum’s, Inc., 345 F.Supp. 387, at 391 (S.D.Fla.1972). As the court stated in American Manufacturers Mutual Insurance co. v. ABC-Paramount Theatres, 446 F.2d 1131, at 1137 (2d Cir. 1971): There can be no illegal tie unless unlawful coercion by the seller influences the buyer’s choice. Coercion has been held to constitute more than merely aggressive salesmanship. Davis v. Marathon Oil, 528 F.2d 395 (6th Cir. 1975); N. W. Controls, Inc. v. Outboard Marine Corporation, 333 F.Supp. 493 (D.C. Del.1971). . In Davis, the Sixth Circuit was not concerned that the Marathon sales representative told plaintiff his lease might be cancelled if he did not purchase more supplies from Marathon Oil Company. The crux of the Sixth Circuit’s conclusion was that scattered threats were not enough to prove coercion. The most that could be said for plaintiff’s proofs is that Marathon Oil utilized “aggressive salesmen who were interested in increasing their sales of Marathon TBA.” In the N. W. Controls case plaintiffs also presented evidence of threats of franchise cancellation toward those plaintiffs who did not use the O.M.C. control box and cable with the O.M.C. engine. Again, though, the court had no difficulty concluding that plaintiffs’ recitations of pressures being exerted “does not show coercion but only normal sales ‘pressure [to] buy O.M.C.’s line.’ ” Id. at 513. An admittedly fine line exists between influence, persuasion and aggressive salesmanship on the one hand, and coercion on the other. Ungar v. Dunkin Donuts of America, 531 F.2d 1211, at 1226 (3d Cir. 1976). The Third Circuit, when faced with this problem in Ungar, concluded: We are the first to admit that there can be no bright line distinguishing influence, persuasion, and aggressive salesmanship on the one hand, from coercion, on the other. But it is difficult to conceptualize a more damning denunciation of the private free enterprise system than the thesis that there is no distinction where there is an unequal relationship between buyer and seller. The purpose of the antitrust laws is to stimulate economic competition, the essence of which is the presence of many competing sellers; salesmanship — the art of persuasion and influence — is inherent in competition among sellers. It is only when the buyer’s freedom to choose a given product is restricted that the tying doctrine comes into play; so long as ‘the buyer is free to take either product by itself there is no tying problem.’ [Citation omitted.] In the case at bar, plaintiffs claim that even though they were free under the terms of their Franchise Agreements to procure transmission repair parts from other certified vendors, they were still “coerced” into buying their parts from AAMCO. But in drawing the line between aggressive salesmanship and “coercion,” this court, after reviewing the evidence, is satisfied that none of the plaintiffs have succeeded in establishing by a preponderanee of the evidence that they were coerced into purchasing more AAMCO parts than they would otherwise have purchased absent the alleged pressure. Since proof of individual coercion must vary from franchisee to franchisee, Abercrombie v. Lum’s, Inc., supra, at 391, the court will examine each plaintiff’s claim individually. Initially, though, the court notes a critical defect in the totality of plaintiffs’ proofs of coercion. According to plaintiffs, AAMCO used its parts salesmen as the primary vehicle for implementing the scheme of coercion. Each of the plaintiffs testified that the AAMCO parts salesmen would tie up the phone lines and regularly harass them about increasing their AAMCO parts purchases. The three relevant AAMCO parts salesmen for the greater Detroit area from 1970-1973 were: (1) Jerry Romm pre-March, 1971 (2) Marc Brittner March, 1971 — 1972 (3) Robert Cochran January, 1973 — November, 1973 Interestingly, not a single plaintiff could identify the Detroit AAMCO parts salesman for 1973, Mr. Robert Cochran (Smith— Tr at 247; Prior — Tr at 328; Layman — Tr at 465; Stewart — Tr at 537; Folino — Tr at 702). It is inconceivable that Mr. Cochran could have been the tool for implementation of the scheme of coercion alleged by the plaintiffs. Robert Cochran was trained by his predecessor, Marc Brittner, and it was his duty to call the plaintiff AAMCO Detroit dealers each week during 1973 in an effort to sell them AAMCO transmission repair parts. Mr. Cochran testified that he never threatened or pressured any of them. Additionally, plaintiffs’ counsel did not put a single question to Mr. Cochran by way of cross-examination. No plaintiff had any complaint about the way he was treated or handled by Marc Brittner, either. Brittner was a consummate salesman (Folino — Tr at 710) who didn’t pressure or threaten anyone (Folino —Tr at 707; Prior — Tr at 328-329; Layman — Tr at 465). Although Smith contended Brittner did make some demands on him, Smith admitted that Marc. Brittner never got Smith to increase his parts purchases from AAMCO (Smith — Tr at 250-251). The record reveals that from the time that Marc Brittner was first assigned to handle this entire group of AAMCO dealers as their parts salesman — March, 1971, according to AAMCO Exhibit 315, until these AAMCO dealers notified AAMCO that they were terminating their contracts on November 29, 1973, according to joint Exhibit 22 — there is no proof that either Brittner nor Cochran engaged in any coercive tactics resulting in an increase in plaintiffs’ AAM-CO parts purchases. It is with Jerry Romm and his conduct prior to March, 1971, upon which plaintiffs base the large majority of their claims that AAMCO engaged in coercion. Folino considered Romm a “screamer and a eusser.” (Folino — Tr at 622). Stewart testified that Romm threatened “to have my ass” over too insubstantial a parts purchase (Stewart —Tr at 502). Prior claimed that Romm was able “to make life tough if you didn’t buy parts from them.” (Prior — Tr at 301). The record reveals that Romm was aggressive. But the record also reveals that when the Detroit AAMCO dealers wrote to AAMCO’s Director of Operations on February 16,1971 to complain of Romm’s “misapplication of reasonable sales techniques,” Romm was immediately removed as the Parts Representative for the Greater Detroit area. (AAMCO Exhibits 314 and 315). Plaintiffs have contended that Romm’s conduct pressured them into buying more AAMCO parts than otherwise would have been purchased during Romm’s tenure as Parts Representative. But when Luther Smith wrote to AAMCO’s Director of Operations to complain about Romm, Smith purported to speak for the entire Detroit AAM-CO Dealers Association: We feel that [Romm’s] attitude, demean- or and misapplication of reasonable sales techniques are actually driving our people into grim determinations not to buy from AAMCO. . . . We sincerely believe a reasonable parts representative will immediately increase our purchase volume. [Emphasis in original.] (AAMCO Exhibit 314). Such an admission refutes plaintiffs’ claims that Jerry Romm was able to successfully coerce them into buying from AAMCO. What the' record shows, on the contrary, is that during all the years at issue, and especially during 1972 and 1973, plaintiffs purchased extensively from other sources and also from AAMCO, but in amounts that are in extremely small proportions to the total amounts spent for repair parts and supplies. It is significant that of the more than $600,000 in total parts purchases made by plaintiffs for the entire. damage period, plaintiffs by their own calculations claim only $10,500 in damages for price overcharge. (AAMCO Post Trial Brief, Table A). Such a figure reflects the limited amount of parts purchased from AAMCO during the damage period as well as reflecting upon the lack of success AAMCO had in “coercing” its Detroit dealers to increase their parts purchases. No plaintiff in any four-month period during 1971-1973 ever purchased more than 8 percent of his repair parts and supplies from AAMCO. Not only that, plaintiffs’ best evidence offered as proof of AAMCO’s attempted coercion predates the damage period. The court was willing to accept such evidence as it reflected the alleged strained relationship between the plaintiffs and AAMCO. But the court cannot utilize such evidence to prove coercion from November, 1969 to November, 1973. The net result is that AAMCO’s disenfranchisement in July, 1968 of plaintiff McAlpine for failure to utilize AAMCO parts kits, and AAMCO’s March, 1969 listing of McAlpine in the Twin Post as a dealer ineligible to receive incentive awards was not considered by this court as bearing upon AAMCO’s attempted coercion during the damage period. (Plaintiffs’ Exhibits 4 and 7). Any parts tie-in damage claim resulting from AAMCO conduct prior to November, 1969 merged in the earlier settlement between plaintiffs and AAMCO. Thus, with this background, the court will examine each plaintiff’s individual claim that he was coerced into buying AAMCO parts between November, 1969 and November, 1973. Plaintiff McAlpine has alleged that constant pressure was placed on him to buy AAMCO parts during the entire damage period — from November, 1969 when AAM-CO entered into a Consent Judgment with its Detroit dealers to November, 1973 when those Detroit dealers terminated their AAMCO Franchise Agreements (McAlpine —Tr at 48). Following the 1969 Consent Judgment, McAlpine testified that AAM-CO’s “tactics change but . . . the pressure was there, as much or more to buy parts” (McAlpine- — Tr at 48). Under the 1969 Consent Judgment the Detroit AAM-CO dealers could purchase parts from outside sources. But according to McAlpine, the paperwork required by AAMCO for a dealer to purchase outside parts was burdensome enough as to make such purchases inefficient (McAlpine — Tr at 47). As further proof of AAMCO’s attempts at coercion McAlpine cited a single 1971 instance when AAMCO represented to its dealers that failure to use an AAMCO parts kit for a repair job might constitute a deceptive practice in violation of an FTC Consent Order (McAlpine — Tr at 49). Significantly, however, McAlpine did not furnish the court with any other evidence of post-1969 coercion directed toward him. When asked on cross-examination what pressure tactics, if any, AAMCO directed toward him between 1970 and 1973, McAlpine could cite none (McAlpine — Tr at 73-78). McAlpine could only say that he was “asked” to buy more parts and was told that he was setting “a bad image” (McAlpine — Tr at 78). McAlpine, after having alleged he was subjected to continual harassment, admitted on cross-examination to an absence of any coercive instances beyond those already mentioned (McAlpine — Tr at 80). Such a record cannot support McAlpine’s claim of coercion. Instead, the record with respect to McAlpine is conspicuous by its absence of coercive practices by AAMCO during the damage period. McAlpine could cite only one instance in either 1969 or 1970 when he placed an AAMCO parts order (McAlpine— Tr at 69). Any attempt by AAMCO to coerce McAlpine into making parts purchases during that period was obviously ineffective. Only when prices were reduced across the board by AAMCO in 1972 did McAlpine purchase more parts from AAMCO, and then on a selective basis when his business judgment determined AAMCO parts to be of acceptable price and quality. The record reflects that McAlpine resumed purchasing AAMCO parts only after the prices for those parts had become competitive, and not in response to pressures from AAMCO salesmen. In claiming no damages for price overcharge in the entire year 1973 (Plaintiffs’ Exhibit 22), McAlpine acknowledges that AAMCO parts prices had become competitive, if not cheaper, than outside parts prices. Each of the other plaintiffs have similarly failed to convince the court that they were coerced into purchasing AAMCO transmission repair parts. Joseph Stolaruk, who also claims no damages for the entire year 1973, testified that he personally never received pressure from parts .salesmen (Stolaruk — Tr at 219). Stolaruk was merely asked by the AAMCO parts salesman to give parts orders. Such was the extent of his testimony on individual coercion directed toward him. John Folino, on the other hand, testified that AAMCO continually pressured him to buy AAMCO parts during the 1970-1973 damage period. According to Folino, this pressure was heaviest prior to March, 1971 when Jerry Romm was the AAMCO parts salesman for the greater Detroit area. Folino testified that Romm was “a screamer and a cusser” who pressured him over the telephone to buy parts. Folino also recounted an incident where AAMCO told its dealers that in order to keep from violating an FTC order the dealers had better use AAMCO parts kits. But Folino could cite no instance between 1970 and 1973 when he was threatened for refusing to buy parts from an AAMCO salesman (Folino — Tr at 705-707). Folino admitted that he purchased extensively from local suppliers (Folino — Tr at 703-704, 714); that he regularly refused solicitations of parts orders from AAMCO salesmen (Folino — Tr at 714); and most significantly that he copld not remember if he bought more parts in response to AAMCO pressures (Folino — Tr at 619). According to his own testimony (Folino— Tr at 712), Folino purchased nearly $80,000 of repair parts from all sources during the years 1971 and 1972. Only $6,000 of that amount was spent on AAMCO parts. Such a fact demonstrates that AAMCO’s attempts to sell Folino its parts was at most only minimally successful even though AAMCO prices were now competitive and admittedly of the same quality as outside parts (Folino — Tr at 637-638; Plaintiffs’ Exhibit 22). It is also significant that Folino purchased only $2,100 worth of parts from AAMCO in 1970, a year in which AAMCO prices were markedly higher than the prices of its competitors (Plaintiffs’ Exhibit 22). The inference to be drawn is that Folino’s purchasing habits were consistent throughout the damage period. He purchased sporadically from AAMCO when AAMCO kits suited his needs. Nothing AAMCO could do affected Folino’s decision to buy from whomever he pleased. Upon such facts, this court cannot conclude that AAMCO, as alleged, forced Folino to buy from them in order “to keep the wolves away from the door” (Folino — Tr at 613). Aaron Reavis testified that he increased his parts purchases from AAMCO during the damage period (Reavis — Tr at 414). But like Folino, Reavis was unable to demonstrate that the increase resulted from anything other than a business decision. Reavis admitted that the kit system was a good system, being more convenient than a system of individual parts purchases. (Reavis — Tr at 416). Reavis could not recall ever being threatened by AAMCO for not buying AAMCO parts (Reavis — Tr at 415). In fact, the record reveals that the only reason Reavis did not buy exclusively from AAMCO was his pique at the aggressive AAMCO salesmen who were constantly soliciting him for parts purchases (Reavis— Tr at 418). The net result of Reavis’ testimony was to convince the court that when Reavis felt pressured by AAMCO, he bought less, not more. Reavis, too, admitted that he used local supplies extensively (Reavis — Tr at 421-422). Layman and Stewart operated a center in Warren, Michigan for the four years, 1970 through 1973, and in Clawson, Michigan for two years, 1971 and 1973. (Stewart — Tr at 539-540; AAMCO Post-Trial Brief, Table A). Layman admitted that he bought most of his repair parts from other suppliers during the damage years 1970 through 1973 (Layman — Tr at 467). When asked to recount any instance of a coercive threat directed at him by AAMCO for not purchasing more AAMCO parts, Layman could not remember (Layman — Tr at 457). He testified that he took a hint from AAMCO’s threatened conduct toward other recalcitrant Detroit dealers (Layman — Tr at 439) and that he was harassed by “abrasive type people” who always wanted a “bigger parts order” (Layman — Tr at 457-458). Although Layman claimed that he was “buying parts from AAMCO only to the extent that we had to try to keep them off our back” (Layman — Tr at 440), his partner Donald Stewart testified that in response to calls he considered to be “harassment,” he did not increase his parts purchases (Stewart — Tr at 524-525). If Stewart could find parts cheaper from outside dealers, he would buy them (Stewart — Tr at 536). The record reflects that in their Clawson center during the damage period, they bought $83,000 worth of transmission repair parts from all suppliers, but less than $8,000 of that was spent on AAMCO parts (Plaintiffs’ Exhibit 22). Stewart did recount an incident, in 1971 with AAMCO parts salesman Jerry Romm where Romm threatened “to have my ass” unless Stewart returned to using AAMCO parts kits exclusively in his Warren center (Stewart — Tr at 501-502). But of the subsequent $64,000 in total parts purchased for the Warren center in 1972 and 1973, Layman and Stewart bought only $4,300 worth of AAMCO parts (Plaintiffs’ Exhibit 22). The net result of such attempted pressure is that it was ignored. Both Davis v. Marathon Oil, supra, and N. W. Control, Inc. v. Outboard Marine Corporation, supra, involved similar instances of salesmen making scattered threats against franchisees. Judge McCree commented in Davis on four incidents of threats relied upon by appellant to prove his tie-in claim against Marathon Oil Company: The most that can be said for appellant’s proofs is that they show that Day and Burocker were aggressive salesmen who were interested in increasing their sales of Marathon TBA. Similarly, this court concludes that Layman and Stewart have made out a ease for harassment; but harassment which is ignored is evidentiary of aggressive salesmanship, not unlawful coercion. Plaintiff Luther Smith contended that he responded to harassment from AAMCO by increasing his parts purchases (Smith — Tr at 240). But while Smith stated that he increased his purchases, the record proves otherwise. Smith assumed responsibility for the operation of his father’s three Detroit AAMCO shops upon his father’s death in 1972. At that time, his father was purchasing 7.6% of his repair parts from AAM-CO for his Conant center, 3.3% of his repair parts from AAMCO for his Livernois center, and 1.7% of his repair parts from AAM-CO for his Gratiot center (AAMCO Exhibit 70; Table D of Post-Trial Brief). Within months after Smith, Jr. took over operations, he was purchasing 6.6% of his repair parts from AAMCO for the Conant center, 1.7% of his repair parts from AAMCO for the Livernois center, and 0.6% of his repair parts from AAMCO for the Gratiot center. By the middle of 1973, Smith, Jr.’s purchases from AAMCO for his three centers had dwindled to 0.1%, 1.3%, and 0.7% of his total parts purchases. Such a radical decline in his AAMCO parts purchases cannot support Smith’s claim of coercion. On the contrary, at a time when AAMCO parts had become competitively priced and were of comparable quality, Smith’s purchasing pattern reveals absolute refusal to give into whatever pressures AAMCO- did exert. John Prior testified that AAMCO salesmen would tie up his telephone lines with harassing calls until he, unlike Smith, would give in by agreeing to a bigger parts order (Prior — Tr at 296). Prior also testified that AAMCO threatened him with disenfranchisement (Prior — Tr at 296-297) for not buying enough parts. But when asked how he responded to this alleged harassment, Prior responded, “Sometimes I’d buy a few parts from them, sometimes I’d tell them to go to hell.” (Prior — Tr at 301). Prior’s purchasing pattern throughout the damage period reflects this ability to be his own. boss. In 1971, at a time when AAMCO prices were consistently higher than outside parts prices, Prior purchased $5,500 worth of AAMCO parts. In 1972, after AAMCO had reduced its prices across the board, Prior purchased $3,000 in AAMCO parts. Such a record is inconsistent with Prior’s testimony that he increased his parts orders in response to AAMCO’s constant pressure. (See Prior — Tr at 296). In fact, on cross-examination, when asked how frequently AAMCO called to harass him about parts purchases, Prior’s response was only that “it happened more than once,” not that it happened frequently (Prior — Tr at 313). Although to Prior, such conduct was “frequently enough for me,” (Prior — Tr at 313) a few scattered instances of sales pressure are not enough to make out a tie-in claim of coercion. See, Ford Motor Co. v. United States, 335 U.S. 303, at 316-320, 69 S.Ct. 93, 93 L.Ed. 24 (1948). Taking the plaintiffs’ contentions as a whole, it is clear that they all felt harassed and frustrated in their inability to be free from AAMCO’s calls. But the record does not support their claims of actionable coercion. Many possible reasons exist other than AAMCO’s coercion that could explain why the plaintiffs were willing to purchase AAMCO kits that part-by-part were more expensive than parts purchased on the open market. Many of the plaintiffs testified to the bookkeeping convenience of ordering AAMCO kits. AAMCO’s assembly sets also had the unique advantage of permitting uniformity and control in rebuilding, as well as time-saving (testimony of AAMCO dealers Bruce McDonald and Kenneth Thompson). With respect to purchasing practices and inventory, the use of assembly sets — including multi-year coverage assembly sets — allowed for space and cash savings (McDonald testimony). Even plaintiffs’ expert witness, Frank Regan, had to admit that if one were to use bulk inventory, the rebuilding process would be more time consuming than if one used assembly sets. AAMCO has always contended that its assembly sets were the most complete, and this assertion was never refuted. The only attack mounted on the AAMCO practice of using assembly sets was the argument that they contained “extra parts.” It was conceded by plaintiffs in their Pre-Trial Brief (page 11) that these extra parts were so miniscule that the cost associated with them could not even be calculated. AAMCO’s witness, Bruce McDonald, did testify that these parts were small in number, low in price, and were easily used for other purposes if not returned to AAMCO for credit. The court believes that the assembly of these parts into a single package entitled AAMCO to some price differential. This price differential was justified by the convenience with which an AAMCO franchisee had his builders save time, the convenience which was afforded in the lesser inventory space requirement, and the perhaps even measurable financial advantage due to a reduced need for an investment of cash in inventory. (See, McDonald testimony.) For all the above-mentioned reasons, this court concludes that AAMCO did not impose an illegal tie-in arrangement upon its Detroit franchisees between 1970 and 1973 when AAMCO gave those franchisees a license to use the AAMCO trademark. B. BREACH OF CONTRACT: On November 29, 1973, each plaintiff signed identical letters of termination (Stipulation of Facts, 152) and in concert with all the others unilaterally terminated his Franchise Agreement (AAMCO Exhibits 1-27). The identical letters read: This is your official notice that I am terminating my relationship with AAM-CO Automatic Transmissions, Inc., effective December 15, 1973. This decision was necessitated by your continual failure to live up to the terms of your Franchise-Agreement. I do not feel that you have ever made good on the promises which were made to me and, therefore, I am now telling you that, as far as I am concerned, the franchise was broken by you long ago. AAMCO claims that the termination of Franchise Agreements by the plaintiffs was a breach of contract entitling AAMCO to damages in lost royalties and in the cost of re-establishing itself in the Detroit market. AAMCO’s contention is that there was no justifiable grievance or group of grievances which allowed plaintiffs to terminate their Franchise Agreements. According to AAMCO, AAMCO was so taken with surprise by the sudden mass exodus of its Detroit franchisees that as late as November 20, 1973, no one at AAMCO had any hint or suspicion that the situation in Detroit was even volatile. The plaintiffs have painted a totally different picture. It is a picture fraught with AAMCO’s alleged arrogance and AAMCO’s continual refusal to live up to its promise of good faith in helping its licensees achieve success. The contention running through this allegation is that AAMCO breached its Franchise Agreements every year of its existence. The franchisees insist that they constantly tried to make their agreements work, for they saw benefits to be derived from an association with ‘'AAMCO. But, after years of disputes including litigation and settlements with AAMCO, the Detroit franchisees felt a need and a right to finally tell AAMCO, “Enough.” On November 29, 1973, the plaintiffs officially terminated their association with AAMCO. Whether the termination of their Franchise Agreements was justifiable or whether such termination amounted to a breach of contracts depends upon whether AAM-CO’s conduct prior to November 29, 1973 violated the terms of the relationship, giving the plaintiffs the right to terminate. The plaintiffs claim that two policies of AAMCO constituted breach of contract by AAMCO, entitling them to terminate: (1) Antitrust Defense: the imposition upon these franchisees of illegal extortive exactions via parts tie-in arrangement. (2) Marketing Defense: the mid-1973 AAMCO announcement that AAMCO was going to add dealers to the Detroit market without geographic spacing provisions. This court has already rejected the antitrust defense in concluding that AAMCO was not guilty of illegal tying practices. The success of AAMCO’s claim for breach of contract thus must rise or fall upon the court’s conclusions with respect to plaintiffs’ marketing defense. Each of the Franchise Agreements between AAMCO and the plaintiffs contains. the following language: AAMCO, through its intimate knowledge of the automatic transmission business, has developed methods and techniques for the profitable operation of shops devoted exclusively to the repair of automatic transmissions. ... Licensee desires to enter into the business of operating an AAMCO automatic transmission repair shop. In order to assist an authorized AAM-CO licensee to get started in business and to achieve maximum results, AAMCO makes available to all licensees advice, information, experience, guidance and know-how with respect to management, financing, merchandising and service in the AAMCO shops, and AAMCO employs various other means to assist the authorized AAMCO licensees to achieve success in their businesses. In consideration of' the foregoing and of the mutual agreements contained herein, AAMCO and Licensee agree as follows . : (Emphasis added). The Franchise Agreements reveal that in consideration of its right to receive a dealer franchise fee — generally 7 percent of franchise sales (Franchise Agreements, p. 2) — AAMCO has granted its dealers two corresponding legal rights: (1) a license to use the AAMCO trademark, and (2) the right to expect AAMCO’s help in achieving franchise success. This latter right established a duty in AAMCO not to hinder the licensee’s ability to achieve operational success. If AAMCO at any time were to fail to honor this commitment, such failure would constitute a breach of contract — either an immaterial breach or a material breach. A material breach would allow the franchisees to terminate their Franchise Agreements and discontinue future performance. An immaterial breach would allow the franchisees to sue for any damage caused, but they would still be bound to continue performance under the contract. Borough of Greentree to Use of Castelli Construction Co. v. Torterete, 205 Pa.Super. 532, 211 A.2d 76 (1965). The plaintiffs contend that AAMCO materially breached its Franchise Agreements with the mid-1973 announcement of an expansion plan to add 9 new AAMCO franchises to the Detroit market (AAMCO Exhibit 101). Such a plan, according to the plaintiffs, was without spacing provisions and would so severely have cut into individual franchisee profits that existing franchisees would have no hope of earning a future livelihood. The plaintiffs believe that AAMCO’s conduct was in such callous disregard of AAMCO’s commitment to help its licensees achieve success that a material breach of contract was accomplished. There is case law for the proposition that a franchisor who adds franchises to an already saturated market without utilizing geographic spacing provisions has engaged in tortious conduct. Photovest v. Fotomat, 1977-1 Trade Cases, ¶ 61,529 (S.D.Ind.1977). Such conduct violates a promise of good faith and fair dealing by the franchisor who owes a duty not to intentionally destroy the right of the existing franchisee to enjoy the fruits of the contract. In the Photovest case the court noted how over-saturation of a market could be profitable to the franchisor even though such conduct reduced the sales volume per franchised store and even produced losing stores. The court in Photovest concluded: Defendant has breached the implied covenant of good faith and fair dealing in its agreements with the plaintiff by: (a) its saturation of the Marion County market area with company-owned stores, including the placement of numerous company stores in the market areas of franchised stores. AAMCO contends that the plaintiffs have no standing to complain about dealer spacing since franchisees who attempt to limit, control or otherwise restrain a franchisor from increasing the number of its franchises in a given market are engaged in an unlawful conspiracy to restrain trade. (See United States v. Topco Associates, 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515). But antitrust analysis is not helpful to the resolution of the contractual dispute now before this court. The fact that franchisees cannot conspire to allocate territories among themselves is not relevant when the issue is the conduct of the franchisor. A franchisor who allocates its franchises in a given market, would not thereby come under antitrust scrutiny for it is not possible for one to conspire with one’s self. The franchisors’ duty in this regard is only to ensure that it does nothing to impair each franchisee’s contractual rights. The court has made an exhaustive review of AAMCO’s marketing conduct with respect to existing, prior and proposed dealer spacing programs in November, 1973. The court has determined that AAMCO’s conduct in 1973 was not egregious enough to justify the plaintiffs’ termination of their Franchise Agreements. A complete chronology of the record supports this conclusion: In 1968, the Detroit AAMCO dealers first expressed dissatisfaction with AAMCO’s marketing program. During that time period, AAMCO carried on a series of conversations with the Detroit dealer group and was told that the dealers themselves believed that the Detroit market could accommodate up to 20 AAMCO shops — more than even AAMCO believed — so long as careful attention was given to dealer placement (McAlpine — Tr at 55). Clearly there was never a dispute about adding dealers to Detroit — only a concern that the geographic placement of new AAMCO centers be such that they not cannibalize each other. In McAlpine’s own words, “I didn’t say addition of dealers [was a problem]; I said addition of dealers without any proper spacing or any geographical area where you could make a living. You should have space to make a living.’ That’s what I’m talking about” (McAlpine — Tr at 55). Harold Stanley, who was then Vice-President of AAMCO, gave McAlpine the responsibility of working out an expansion plan with spacing considerations to be involved. Notwithstanding the fact that the Detroit dealers worked out a proposed plan, within two months AAMCO opened up a new shop less than 5 miles between McAlpine’s Plymouth Road center and John Folino’s center in Garden City (McAlpine — Tr at 56). McAlpine testified that his business went down 25 percent (McAlpine — Tr at 56). Folino testified that he lost “over a thousand dollars a week . . . 15 or 20 percent of my business” (Folino — Tr at 618), and Aaron Reavis whose shop was the new shop in question, testified that he lost money every year except one “when I just barely got in the black” (Reavis — Tr at 386). Nor was Aaron Reavis’ the only new AAMCO shop added to Detroit in 1969 which was located in close proximity to existing dealers. Thirty days after the Reavis shop opened, AAMCO opened another shop at Seven Mile and VanDyke', right in the center of the triangle of three existing centers. One of the existing centers was within 2 miles of the new shop, and none of the other centers was more than four miles away (McAlpine — Tr at 57). The new shop never got off the ground, and AAMCO finally closed it. But while the new shop was open, it cut into the business of the existing shops without creating new business (McAlpine — Tr at 57). Later in 1969, John Prior suffered an injury similar to McAlpine and Folino when AAMCO put two dealers within 4 miles of his Groesbeck Highway center in Warren. Prior testified that his gross sales were cut nearly in half (Prior — Tr at 302-303). Such new shops never made enough money to even pay their share of the Detroit dealer group advertising. Instead, the new shop leached onto the advertising expenditures of the existing dealers (McAlpine — Tr at 57; Folino — Tr at 619) while taking their business away at the same time. Joseph Stolaruk, who was co-owner with Folino in the Garden City center, and Donald Stewart, who operated a center near the Prior center in Warren, spoke for the feelings in 1969 of all the plaintiffs: By putting a shop so close to us to take our livelihood away from us or the volume of business was the most crucial thing in comparison that AAMCO could have done to us (Stolaruk — Tr at 212.) AAMCO promised in the contract to use their expertise and knowhow to help me achieve success and to increase my volume of business. Now, if you bring a dealer into the Detroit area and you don’t have any plan as to where you’re going to put them, then I’m going to wind up handing a great deal of my business to this new dealer that’s brought in. . If they put a new shop between my two existing shops they were going to ruin both my locations (Stewart — Tr at 503). But this court need not consider whether AAMCO’s conduct in 1969 breached AAMCO’s duty of good faith “to assist the authorized AAMCO licensees to achieve success in their businesses” (AAMCO Franchise Agreement, page 1). If there was a breach which excused the plaintiffs from further performance under their Franchise Agreements in 1969, the plaintiffs effectively utilized their power of election to proceed under their Franchise Agreements. Pennsylvania law — which by contract is controlling in any suit between AAMCO and its franchisees (Franchise Agreement, page 5, H 23) — states that a party who discovers facts which would warrant rescission of a contract must act promptly. If the party elects to rescind, it is the party’s duty to notify the breaching party within a reasonable time. Fichera v. Gording, 424 Pa. 404, 227 A.2d 642 (1967). A party who continues to work under a Pennsylvania contract after the other party has breached thereby waives the right to rescind Pennsylvania Law Encyclopedia, Volume 8, § 366, at 417. An election to continue performance does not constitute a waiver of the right to damages for a breach. But the failure of the Detroit dealers to assert a right to damages within a reasonable time after the breach constituted a release of whatever damage rights then existed. Two reasons exist which would explain why the plaintiffs did not elect either to terminate their contracts in 1969 or to sue for damages. First, AAMCO in 1969 established their “five mile” policy which set a minimum five mile limit distance between AAMCO centers. (Tr at 337). Although Donald Layman testified that he did not think five miles was enough (Layman — Tr at 469), this appeasement gesture by AAM-CO effectively prevented AAMCO from opening centers similar to the centers that had created havoc in 1969. Second, the plaintiffs recognized that there were many benefits to be gained from continuing as AAMCO franchisees. Folino recognized that: The dealer training program was good. The national advertising program I felt helped business a great deal . . .. I bought shops when I could and I advised others to get into the business. I thought that the problems would, you know, eventually be straightened out (Folino — Tr at 632). Folino and McAlpine had enough faith in the future growth of AAMCO to purchase an additional franchise in 1972 (Folino — Tr at 627), as did Stewart and Layman. (Joint Exhibit 9). Folino recounted an incident in 1972 where AAMCO was planning on opening a shop within three blocks of his proposed Farmington site. .But Folino admitted that AAMCO could not be in violation of its “five mile” policy until his proposed shop was in operation (Folino — Tr at 692). Furthermore, the competing AAMCO shop did not open (Folino — Tr at 627). Thus, at no time during the years 1969 until the Detroit dealers became dissatisfied with AAMCO’s marketing program in 1973 did AAMCO fail to honor its five mile policy. The plaintiffs eventually stipulated that “we do not contend that from the additional dealers being added in 1968 and 1969 to mid-1973 that there was any violation of anybody’s rights with respect to dealer placement as a basis for our position in this lawsuit” (Tr at 692-693). In fact, in 1973, prior to the series of events in the Fall, there was no discussion of leaving AAMCO for any reason. (McAlpine — Tr at 107; Smith — Tr at 267; Adams — Tr at 365; Schlacter Dep. at 9). With respect to what happened during the months of September through November, 1973, there are two conflicting interpretations: one, according to the plaintiffs is that AAMCO in July, 1973 had decided to embark upon a major plan of expansion without consulting its dealers. This nationwide marketing program, according to the plaintiffs, had no arrangements for a plan that would locate new dealers in centers that would not cut into the business of the existing dealers. AAMCO’s plan was simply to add 9 additional centers to the Detroit market (AAMCO Exhibit 101). With AAMCO’s 1969 Detroit expansion program still in their minds, the plaintiffs felt they either had to leave AAMCO or run the risk of being driven out of business. They chose to leave. AAMCO does not dispute that their franchise market recommendation of July, 1973 (AAMCO Exhibit 101) established a plan of expansion calling for 9 additional centers to be added to Detroit. AAMCO contends, though, that beginning on October 2, 1973, and culminating on November 20,1973, that AAMCO had a chance to meet with its dealers and receive their feelings on the plan of expansion. What eventually emerged on November 20 was a definitive expansion plan in which AAMCO decided not to locate additional AAMCO centers in Detroit during 1974,1975, or 1976. (AAM-CO Exhibit 109). Not until 1977 would the Detroit market be available for the opening of new centers. The record verifies AAMCO’s position. Sidney Hurley, Vice-President of the National AAMCO Dealers Association in 1973, testified that dealers from all of the major markets were upset when AAMCO released its initial expansion plans in July, 1973. The object of contention was AAMCO’s failure to have a plan for locating the new dealers so that they would not eat into the business of the existing dealers. Dealer response to AAMCO’s plan was sufficiently negative so that on October 2, 1973, AAM-CO requested an emergency meeting with its Dealers’ Association, of which William McAlpine was President. (AAMCO Exhibit 103). Gerald Shine, General Counsel for the National AAMCO Dealers Association, represented the Association at this meeting with AAMCO management. At the meeting, which was held on October 2, 1973, AAMCO announced that its July plan of expansion was now obsolete. In its place AAMCO was intending to put a moratorium on future expansion until a new marketing program could be worked out. (AAMCO Exhibit 103). On October 4,1973, the National AAMCO Dealers Association convened in an emergency meeting in Chicago at which William McAlpine, Donald Layman, John Prior, Donald Stewart, Stuart Adams, John Folino, Luther Smith, and Aaron Reavis were all in attendance. The subject of the meeting was Gerald Shine’s discussions with AAMCO management on October 2, 1973. The minutes of the October 4 meeting reflect (AAMCO Exhibit 103) that on— October 2, 1973 Mr. Shine represents Association at meeting with AAMCO management and group of Chicago dealers. Management announces that availability book of new franchises is now obsolete; that insofar as the Chicago market is concerned— (1) New marketing plan to be worked out on a yearly basis. (2) Marketing plan will be presented to dealers in area for their opinions. (3) Final marketing plan to be announced by AAMCO, made available to market. (4) Until that final marketing plan for Chicago is announced, AAMCO will not accept any applications for sale of franchises in the Chicago SMSA. (5) Sale of Franchise is defined as the taking of application and down payment from prospective Franchisee. (6) Intend to implement this marketing program in the remainder of the country as soon as possible. (7) Availability book now obsolete. The record further reveals that on October 17 (AAMCO Exhibit 491), October 23 (AAMCO Exhibit 108), October 26 (AAMCO Exhibit 513), October 30 (AAMCO Exhibits 488, 489), November 6 (AAMCO Exhibit 492), November 19 (AAMCO Exhibit 489), November 20 (AAMCO Exhibit 489), and on November 23 (AAMCO Exhibit 490) AAM-CO had been in written contact with one or another of the Executive Committee members from the Dealers Association. On each of these dates, AAMCO took steps towards the development of a detailed and explicit marketing program which would be different from that proposed in July of 1973. On October 30, in particular, Keith Ladd, AAMCO’s Executive Vice-President, wrote a letter to Gerald Shine which stated (AAMCO Exhibit 488): We intend to implement our Market Development Plans which are similar in concept to the decision announced in Chicago, on a country-wide basis in the United States and Canada and will discuss this with the Executive Committee on November 20, 1973. On November 20 at a Dealers’ meeting in Philadelphia, AAMCO released its new franchise marketing program (AAMCO Exhibit 109; AAMCO Exhibit 490). Detroit was classified as one of the “closed” markets, which meant: Markets where AAMCO has decided not to locate additional centers during 1974, 1975 and 1976. And the market will not be open for the placement or opening of new centers until 1977. McAlpine was present at the November 20 meeting with AAMCO. After the meeting McAlpine called the Detroit dealers and explained the entire AAMCO Marketing Program to them. The Detroit dealers, with full awareness of AAMCO’s revised plans for the Detroit market, took an immediate vote and decided to definitely leave AAMCO (MeAlpine — Tr at 126). On November 29, the Detroit AAMCO dealers officially terminated their relationships with AAMCO. On the basis of this record, the court concludes that AAMCO’s conduct did not justify the plaintiffs in terminating their Franchise Agreements. The most that can be said to support the position of the plaintiffs is that AAMCO’s original marketing plan of July, 1973 was a threat to franchise success — but was never carried out. Pennsylvania law is well-settled that more than a threat of non-performance is needed before conduct can amount to an anticipatory breach of contract. The conduct must manifest an absolute and unequivocal refusal to perform. Pennsylvania Law Encyclopedia, Vol. 8, § 365, at 414; McCloskey & Co. v. Minweld Steel Co., 220 F.2d 101 (3d Cir. 1955); McClelland v. New Amsterd