UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA
July 16, 1980
UNITED STATES FIDELITY & GUARANTY COMPANY (USFG)
Rudolph J. DiMASSA and Ruggero D'Onofrio, Defendants, and John F. Naulty, Reading Company and/or Consolidated Rail Corporation, its successor, (ConRail), the Pillsbury Company, and General Mills, Inc., Third-Party Defendants
The opinion of the court was delivered by: DITTER
This is a suit by a bonding company on an indemnity agreement. Presently before me are motions to dismiss and for summary judgment on behalf of third-party defendants, Reading Company, ConRail, Pillsbury Company, and General Mills, Inc.
This action is one of many spanning almost a decade of litigation involving rail shipments of flour made in 1968 by Pillsbury and General Mills to Western Flour, a regional distributor. In order to enable Western Flour to obtain delivery where proper documents of title were lacking, Reading, the destination rail carrier, required a blanket indemnification bond. Western Flour arranged this bond through United States Fidelity and Guaranty Company (USF&G). To obtain this bond, the principals of Western Flour, Rudolph J. DiMassa and Ruggero D'Onofrio, were each required to sign an agreement to indemnify USF&G.
In May and June, 1968, Reading received flour shipped from Pillsbury and General Mills and delivered it to Western Flour without proper documents of title. Western Flour refused to pay for the flour, and Pillsbury instituted suit against Reading. Reading paid the subsequent judgment which Pillsbury obtained against it. Reading also paid General Mills even though no judgment was outstanding. In 1969, Reading sued USF&G in Philadelphia Common Pleas Court for indemnification under the bond. The court entered summary judgment in favor of Reading which USF&G satisfied by paying the maximum amount, $ 50,000., under the bond. USF&G then instituted the present lawsuit in 1977 seeking recovery of $ 50,000. from Western Flour's principals, DiMassa and D'Onofrio, under their individual indemnity agreements with USF&G.
DiMassa filed a third-party complaint against John G. Naulty (attorney for USF&G in the Reading indemnity action), Reading, ConRail, Pillsbury, and General Mills alleging various fraud, anti-trust, and conspiracy theories as defenses to payment under the bond. The third-party defendants, except Mr. Naulty, filed a barrage of motions to dismiss and for summary judgment. For reasons expressed in this memorandum, I will grant the third-party defendants' motions.
DiMassa first claims that General Mills, Pillsbury, Reading, and ConRail conspired to misrepresent the date of certain flour shipments delivered without bills of lading to Western Flour. Specifically, the shipping documents show the following alleged flour shipments:
Date Delivery to
Shipper Car No. Shipped Western Amount
Pillsbury BCK-2050 5/9/68 5/27/68 $ 5,245.50
Gen. Mills BCK-2938 5/14/68 5/27/68 4,798.35
Pillsbury BCK-2484 5/14/68 5/28/68 5,901.60
Pillsbury BCK-2506 5/17/68 5/28/68 7,463.10
Pillsbury BCK-2871 5/16/68 5/31/68 5,565.25
Pillsbury BCK-2160 5/22/68 6/4/68 5,737.00
Gen. Mills BCK-1798 5/9/68 6/4/68 4,699.75
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