ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT AND JUDGMENT ON PLEADINGS

HEMPHILL, District Judge.

Plaintiff brings this action as a former franchise dealer of Chrysler Corporation whose dealership area covered portions of Greenville and Pickens Counties. From 1959 until April 5, 1978, when plaintiff terminated its direct dealership agreement pursuant to the terms of that agreement, plaintiff was Chrysler, Plymouth, and Imperial dealer for the Chrysler Corporation; prior to June 1, 1976, its direct dealership agreement was with the subsidiary, Chrysler Motors Corporation. After terminating the contract, plaintiff filed this action charging defendant with breach of contract; coercion, intimidation and bad faith under 15 U.S.C. § 1221 et seq. (Automobile Dealers' Day In Court Act); breach of contract in violation of that Act; unfair and deceptive acts under § 56-15-40, Code of Laws of South Carolina, 1976; violations of the Clayton Act; unfair trade practices under § 39-5-20; and unfair competition under § 39-3-10. Defendant answered by specifically denying many of the allegations; asserting the protection of various statutes of limitations; claiming that plaintiff breached the contract and violated § 1221 of Title 15 and § 56-15-40 by its act of bad faith; and that plaintiff's cause of action under § 56-15-40, regulating motor vehicle manufacturers, distributors and dealers, must fail as the contract predates the Act which is prospective only in effect. By its Motion for Judgment on the Pleadings, Rule 12(c), Federal Rules of Civil Procedure, defendant, in effect demurs to plaintiff's cause of action under § 56-15-40. Plaintiff then filed a Motion for Partial Summary Judgment pursuant to Rules 12(b) and 56, which demurs to defendant's position that § 56-15-40 is inapplicable to the facts of this case. Thus the question presented for decision is whether § 56-15-40 was intended by the legislature to apply to this case, and if so, whether the statute thus violates the South Carolina and federal Constitution.

Chrysler contends that the dealership contract signed on October 10, 1959, predates the passage of the Act on May 29, 1972, with the result that the Act should be held inapplicable. Plaintiff has responded that the merger of Chrysler Motors Corporation into Chrysler Corporation on June 1, 1976, with the assumption by Chrysler Corporation of the rights and duties under the contract, constitutes a new contract which postdates the Act.

Plaintiff's characterization of the June 1, 1976 activity as constituting a "new contract," strains the meaning of that term beyond the limits which this court is willing to project. There was no change in the rights or duties of Easterby-Thackston as a result of Chrysler becoming a party to the contract. Nor was the consent of plaintiff necessary for the substitution of Chrysler as a party. Furthermore, the original contract specifically contemplated this very situation, stating that Chrysler Motors "may assign this agreement only to Chrysler Corporation." Since the parties operated exclusively under the terms of the original agreement, as amended prior to passage of this Act, the assumption of this contract by Chrysler, does not constitute a "new contract." See Pittsburgh-Buffalo Co. v. American Fidelity Co., 219 F. 818, 824 (3rd Cir. 1915) (defining a new contract as a new agreement which contemplates concurrence and action by both the parties making the alteration).

Nor does the immaterial modification of March 17, 1976 which adds the position of Chrysler National Dealer Placement Manager to the list of positions in paragraph 5 of the Direct Dealer Agreements which are authorized to consent to assignments or approve modifications, constitute a sufficient alteration of contractual rights to call it a new contract. While this court might accept a fairly low threshold of materiality in determining whether a new contract exists which postdates the Act, the modification in question is simply too trivial.

The latest material modifications of the contracts which this court has before it are prior to the passage date of the Act, May 29, 1972, or the intended effective date six months earlier of January 1, 1972.

Plaintiff argues that no provisions of the Act impair any obligation of the Direct Dealer Agreement between Chrysler and Easterby-Thackston. If this is true, then the statute can be applied to this agreement, without being retroactive. South Carolina follows the rule of statutory construction which construes legislation to be prospective in operation unless the legislative intent that it be given retrospective operation clearly appears from the express language of the Act. Pulliam v. Doe, 246 S.C. 106, 142 S.E.2d 861 (1965); Independence Ins. Co. v. Independent Life Acc. Ins. Co., 218 S.C. 22, 61 S.E.2d 399 (1950); Johnson v. Baldwin, 214 S.C. 545, 53 S.E.2d 785 (1949); Jefferson Standard Life Ins. Co. v. King, 165 S.C. 219, 163 S.E. 653 (1932); Home Bldg. Loan Ass'n v. City of Spartanburg, 185 S.C. 313, 194 S.E. 139 (1937). But as plaintiff has implied, a statute would not be defined as retroactive unless it first impairs a vested contractual right. Rowell v. Harleysville Mutual Ins. Co., S.C., 250 S.E.2d 111 (1978); McLure v. Melton, 24 S.C. 559 (1886), appeal dismissed Hopkins v. McLure, 133 U.S. 380, 33 L.Ed. 660 (1890).

Chrysler's attorneys have furnished this court with examples of ways in which the dealership agreement might be altered by the Act. While the contract requires Chrysler to fill Dealer's orders on a "best effort" basis, the Act required the orders to be filled unless an "Act of God" or some other event beyond defendant's control prevents the order from being filled. § 56-15-40(3)(a). Chrysler asserts that the Act might impose liability on the manufacturer for failure to fill orders at the end of the model year when the plants must cease production and retool for the new model year. This court's attention has also been directed to the paragraphs relating to the need for Chrysler's consent for any changes in dealer's capital structure or assignment of the dealer's interest. Both, it is asserted, are impaired by the provisions of the Act. § 56-15-40(3)(h) (i).

Defendant also argues that § 56-15-40(2)(a) could be construed to prohibit Chrysler from advising a dealer that it must order a sufficient number of cars to meet its Minimum Sales Responsibility under the agreement.

While this court is doubtful that a good faith effort by Chrysler to carry out the terms of the contract would be impaired by the Act, this court prefers to leave these matters to the state courts. Sufficient for the determination of this case are the conclusions of Judge Simons in Superior Motors v. Winnebago Industries, Inc., 359 F. Supp. 773 (D.S.C. 1973), that the Act would impair the contractual obligations in that case. While not intimating an endorsement of the constitutional analysis in that case, this court does agree that the Act would have had a retroactive effect in Superior Motors. In discussing the effect on the rights of the parties, Judge Simons wrote:

In the case at hand, the new legislation imposes several added conditions or duties upon the manufacturer, while taking from that party rights to which it was entitled in the contract. Under the contract, the franchise automatically terminated without any notice at the expiration of the term unless it was renewed in writing. Under the statute, the manufacturer cannot simply allow the agreement to expire, but must give sixty days' notice of his intention not to renew, together with a statement of his specific reasons for nonrenewal. Under the contract, either party had the right to cancel the agreement without any requirement of "cause", but simply upon ninety days' notice. Under the statute, the nonrenewal of a franchise without "due cause" is declared to be an "unfair termination," any provisions of the contract to the contrary notwithstanding. A manufacturer running afoul of the provisions of this legislation renders itself vulnerable to an award of double the plaintiff's actual damages, and treble punitive damages.

Contrary to plaintiff's position, a law cannot be applied retroactively in some instances, and not be so applied in others; it is an "all or none" proposition. The finding of potential impairment with vested rights places the burden on plaintiff to establish the legislative intent necessary for retroactive application of this law. The Act itself provided for an effective date of January 1, 1972, some six months before it was signed. Thus the South Carolina legislature evidenced an intent for the Act to be retroactive, but clearly limited the scope of that effect. In the face of this clear language, this court fails to see how the provisions of the Act can be read to apply to a contract entered into on May 10, 1965. Clearly, plaintiff is caught in the net of judicial reluctance to impair vested rights.

Plaintiff has cited the case of Willys Motors v. Northwest Kaiser-Willys, 142 F. Supp. 469 (D.Miss., 1956) in which a federal district court gave retroactive effect to an automobile dealer's day in court statute. That court declared that the public purpose of protecting dealers and their employees from the coercive pressures of manufacturers furthered a sufficiently strong state interest to be a valid exercise of the police power and therefore constitutional under the Contracts Clause of the United States Constitution. However, the Minnesota court failed to examine the legislative intent in reference to retroactivity once it found an impairment of a contractual clause. In this court's eyes, the Willys Motors case loses its persuasive force when it skirts this crucial issue.

For the reasons stated above, defendant's Motion for Judgment on the Pleadings is hereby granted, plaintiff's Motion for Partial Summary Judgment is denied, and judgment on Plaintiff's Fourth Cause of Action is hereby awarded to defendant.

AND IT IS SO ORDERED.