
    Hayes Development Corp. et al. v. Suburban Propane Partners L.P.
    Superior Court, Middlesex, SS
    No. 094627
    Memorandum Dated December 3, 2009
   Fremont-Smith, Thayer, J.

In this case, defendant

Suburban entered into an exclusive contract with Hayes to provide propane gas to Hayes, which is the owner of a townhouse development in Shirley, Massachusetts. Pursuant to the contract, Suburban installed underground tanks and the equipment necessary to route the propane to the individual units and to measure usage. After giving the required sixty days notice, Suburban terminated the agreement on July 21, 2009. That Suburban could legally do this is not disputed. Hayes, however, contends that Suburban had overcharged for the propane provided to Hayes under the contract. It is not disputed that Suburban owns the storage tanks, and refused to permit Hayes’s substitute supplier of propane to refill the tanks. Hayes has obtained an ex parte temporary restraining order and seeks a preliminary injunction, alleging irreparable harm to the plaintiff and to the unit owners if access to the tanks is not ordered.

Plaintiff does have another remedy, however. The contract provides for plaintiffs purchase of the storage tanks and related equipment on the terms specified in the contract.

Plaintiff objects, however, that the buy-out price stipulated in the contract is about $6,000 less than the price as computed by defendant (about $38,000), and that it is not required to pay for the tanks because the amount that defendant over-charged for propane exceeds the value of the tanks, however computed.

PRELIMINARY INJUNCTION ORDER

Accordingly, a preliminaiy injunction is ORDERED as follows:

1. Hayes Development Corp. (“Hayes”) shall immediately tender to Suburban Propane Partners (“Suburban”) a check for the buy-out of the storage tanks and the related equipment, in such an amount as Hayes determines is called for by the contract, without any reduction or set-off for amounts that Hayes contends Suburban has overcharged for propane deliveries. Such payment by Hayes is without prejudice to Hayes seeking recovery, in this action, of any amounts that it contends are owed to it by Suburban.

2. Suburban shall immediately, upon payment by Hayes as provided in paragraph 1, convey all its right, title and interest in the storage tanks and related equipment, free and clear of any encumbrances, to Hayes. Such conveyance is without prejudice to Suburban seeking recovery in this action of any amounts that it contends are owed to it by Hayes.

3.All claims and counterclaims of the parties are not waived, but are preserved for trial.  