Dole Fresh Fruit Co. v. Delaware Cold Storage, Civil Action No. 96-27 MMS.
| Decision Date | 25 March 1997 |
| Docket Number | Civil Action No. 96-27 MMS. |
| Citation | 961 F.Supp. 676 |
| Parties | DOLE FRESH FRUIT COMPANY, Plaintiff, v. DELAWARE COLD STORAGE, INC. a.k.a., Rosenberger Cold Storage Companies, Defendant. |
| Court | U.S. District Court — District of Delaware |
Vincent A. Bifferato, Jr., Herrmann & Bifferato, P.A., Wilmington, DE, J. Michael Johnson, Gollatz, Griffin & Ewing, P.C., Philadelphia, PA, for plaintiff.
James W. Semple, Morris, James, Hitchens & Williams, Wilmington, DE, for defendant.
Plaintiff Dole Fresh Fruit Co. ("Dole"), filed a complaint against Delaware Cold Storage Inc. ("DCS") for breach of contract, violation of 13 Pa. Cons.Stat. § 7201, et. seq., negligent bailment and negligent misrepresentation. Docket Item ("D.I.") 1. The dispute centers around DCS's storage of Dole's Red Sensation and Bartlett pears ("pears"). This Court has subject matter jurisdiction based on diversity of citizenship, see 28 U.S.C. § 1332. The parties agree Pennsylvania law governs the case pursuant to a choice of law provision in their contract. See D.I. 25, at 11-12; D.I. 29, at 12.
Before the Court is DCS's motion for summary judgment on all claims against it except negligent misrepresentation. D.I. 25. At oral argument, DCS informed the Court its motion for summary judgment on a counterclaim asserted against Dole — for indemnification if DCS is found liable for damage to the fruit of a third party, also stored with DCS — is withdrawn. DCS further seeks attorneys fees, which are provided for under the contract.1 Also before the Court is Dole's motion to amend its complaint to add a count seeking restitution. D.I. 31.
The parties entered into a contract on December 3, 1993, for cold storage services. See A-50-552 (Contract). The contract called for DCS to cold store Dole's pears from February 1, 1994, to July 31, 1994. Id. Three terms of the contract are especially pertinent. DCS was to (1) maintain a facility with a temperature of 30 degrees Fahrenheit and humidity level of 90% or greater; (2) provide daily reports on such temperature and humidity; and (3) immediately report any problems therewith. Id. There is a provision in the contract, although ambiguous, which may have permitted DCS to reject certain fruit upon its delivery for storage.3 A-53; see also B-7 (deposition of Milford Brent Parker).
In February 1994, soon after Dole began storing fruit with DCS, it became apparent the agreed upon temperature was not being maintained, and in fact the room was warmer than 30 degrees. A-66-70. DCS does not dispute the required temperature was not maintained. D.I. 25, at 12. However, as DCS points out, the pulp temperature of Dole's pears on arrival was generally higher than 30 degrees. In fact, it ranged from 30 to 42 degrees Fahrenheit, with the average temperature 35.5 degrees. A-122.
At some point early in 1994, DCS notified Dole that DCS had accepted for storage in the same cold room a shipment of fruit owned by William H. Kopke, Jr. Inc. B-42-43. According to Dole, Kopke's fruit was considered "hot" because it had yet to be cooled in cold storage; also according to the Dole, one possible result of storing it with Dole's fruit is it could warm the cold room.4 Id. DCS informed Dole this fruit would be removed quickly from the cold room but it was not moved as quickly as DCS anticipated. Id.
On March 21, 1994, Dole was informed by one of its agents the cold room evidenced an "overpowering pear odor", which was indicative of a high level of ethylene — a gas emitted by pears which enhances ripening. See D.I. 29; B-50. Dole contacted DCS and instructed it to ventilate the room. B-51. DCS's practice was to monitor the ethylene level in the cold room once per month; apparently the levels had skyrocketed since the last check. B-53.
On April 5, 6 and 7, 1994, the parties commissioned a joint survey of the condition of the pears. A-63; 71; 80. Dole's representative was J.M. Hughes Co., and DCS's representative was Joseph Irwin, Inc. Id. Each representative filed a report.5 A-122-138; A-142-159. Both reports opine, relying on DCS records, there was no mechanical failure related to the cold room. A-125; A-159. The Hughes report does not assign fault for the condition of the pears; the Irwin report states "[I]t is our position that elevated temperatures and ethylene levels found in room C (South) were more likely the result of conditions created by breakdown of pears affected by brown surface discoloration/senescent scald6 and not Delaware Cold Storage, Inc., failure to properly cool and store pears." A-159. As a result of the survey, it was agreed by all that the portion of Dole's stored pears that were rotting had to be removed from the cold room to preserve the quality of the other fruit. Upon removal of those pears, the temperature in the cold room was finally able to stabilize at the contract temperature. A-126.
After their removal, Dole submitted a sample of the pears to an expert, Dr. Mitcham. Dr. Mitcham wrote a letter in response stating she believed the pears exhibited "classic symptoms of Senescent Scald which develops on pears after the fruit become `old' in storage." See A-120 (Mitcham Letter). Mitcham continued:
Senescent scald is enhanced by the same environmental conditions that promote fruit ripening including late season harvest, slow cooling after harvest, warm storage temperature and ethylene gas.
Id.7
Thereafter, each side blamed the other for the damage. Dole argues DCS maintained the cold room at a temperature above 30 degrees, causing the fruit to spoil. DCS argues the fruit was already in a condition of "advanced maturation" when it arrived; most notably, it had an average temperature of 35 degrees upon arrival, which was impossible to lower. D.I. 25, at 5. DCS promises to offer expert testimony to this effect. Id. at 9. DCS especially notes Dole has been unable or unwilling to produce records reflecting the temperatures and condition of the pears before they left Chile, and during transport to the United States. See A-12, 16, 20.
Summary judgment is governed by Federal Rule of Civil Procedure 56, and will be granted when, on the record before the Court, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "In order to defeat `a properly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find in its favor.'" Hampton v. Borough of Tinton Falls Police Dep't, 98 F.3d 107, 112 (3d Cir. 1996) (citation omitted). In a case where the nonmoving party bears the burden of proof at trial on a dispositive issue, that party must "go beyond the pleadings, and by [that party's] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. Pro. 56(e)).
In essence, the non-moving party must demonstrate a dispute over facts that might affect the outcome of the suit.... Moreover, in reviewing the record, we must give the non-moving party the benefit of all reasonable inferences.
Summary judgment is appropriate if, after discovery is taken, a party can not put forth any facts establishing a required element of its cause of action. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53. In such a case, "there can be `no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2552.
On the other hand, "where the movant [seeking summary judgment] bears the burden of proof at trial [on a dispositive issue] and the motion does not establish the absence of a genuine factual issue, the district court should deny summary judgment even if no opposing evidentiary matter is presented." Resolution Trust Corp. v. Gill, 960 F.2d 336, 340 (3d Cir.1992).
In the complaint, Dole charges DCS breached the contract by failing to draw down the temperature of the cold room prior to the arrival of the pears, failing to notify Dole of hazards impacting on the integrity of Dole's product, and failing to achieve and maintain the required temperatures under the contract. D.I. 1, at 7. Dole further charges violation of Pennsylvania's warehouseman statute, 13 Pa. Cons.Stat. § 7201, and negligent bailment. Id. at 8-10.
DCS's motion for summary judgment hinges on its assertion Dole has not put forth sufficient evidence of causation to survive summary judgment. D.I. 25, at 12, 17. To analyze this position, it is first necessary to consider who bears the burden of proof on each of Dole's claims; for, if DCS bears the burden of proving causation, in order to prevail on its motion for summary judgment it must establish the absence of a material issue of fact regardless of opposing evidentiary matter. Resolution Trust Corp., 960 F.2d at 340.
Dole asserts because this case revolves around a bailment contract, DCS, as the bailee, bears at least an initial burden on all Dole's claims of coming forward with evidence it did not cause the damage to the pears. DCS argues Dole bears the burden of proving causation.
Bailment involves "delivery of personalty for the accomplishment of some purpose upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, otherwise dealt with according to his directions or kept until he re-claims it." Price v. Brown, 545 Pa. 216, 680 A.2d 1149, 1151 (1996) (citation omitted). Dole is correct a cause of action for breach of a...
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