The opinion of the court was delivered by: ROBERT S. GAWTHROP, III
First National Bank & Trust Company of Newtown instituted this suit against its common carrier for damages caused by the carrier's delay in delivering five shipments of bank documents. Defendant, Purolator Courier Corporation, admits that the delivery was delayed, but claims that its liability is limited to the amount stated on the bills of lading for each shipment. After a two-day, non-jury trial and review of the briefs, counsel's stipulations, and the evidence of record, I make the following findings of fact and conclusions of law.
1. Plaintiff is First National Bank & Trust Company ("FNB") of Newtown, Pennsylvania, a National Banking Organization, having its principal place of business at 40 S. State Street, Newtown, Bucks County, Pennsylvania.
2. Defendant, Purolator Courier Corporation ("Purolator"), is a Delaware corporation with its principal place of business at 131 Morristown Road, Basking Ride, New Jersey.
3. Purolator is a common carrier engaged in interstate and intrastate commerce, therefore, subject to ICC regulations and the provisions of the Pennsylvania Public Utilities Code, 66 Pa.C.S. § 101 et.seq.
4. Purolator operated as a common carrier in Pennsylvania during the actions complained of in this lawsuit, from October 1988, to May 1989.
5. Defendant, Emery & Purolator Worldwide and Cargo, is not a corporation registered to do business in the Commonwealth of Pennsylvania and is also not registered as a fictitious name.
6. Consolidated Freightways, Inc. ("Consolidated Freightways") is a holding company incorporated under the laws of the state of Delaware.
7. Consolidated Freightways owns 100% of the stock of Emery Air Freight, which owns 100% of the stock of Purolator.
8. Consolidated Freightways had no contractual relationship with FNB at any time relevant to this action. There is no evidence that Consolidated Freightways was the entity providing courier service to FNB.
10. The packages were taken by Purolator from FNB in Newtown to its correspondent bank in the Federal Reserve System, which is located in Philadelphia.
11. These packages carried by Purolator contained FNB's cash letter, which consisted of canceled, non-negotiable, checks, together with a deposit slip reflecting the face amount of the checks.
12. Each day the checks were packaged and shipped in an identical type of plain box, pre-printed with the name of the receiving bank. FNB left the shipments in a vestibule of the bank, between two sets of locked, double doors, for after-hours pickup by Purolator.
13. FNB and Purolator had a routine practice of Purolator's supplying the same evening delivery of the cash letter boxes and letters, between approximately 6:00 p.m. pickup and 11:00 p.m. delivery to the correspondent bank.
14. Purolator charged the bank a flat monthly amount of $ 412.57 for this service.
15. During the time period of 1988 until April 1989, each Purolator bill for the cash letter service was for the same amount -- $ 412.57.
16. Neither FNB nor Purolator submitted any evidence as to how the flat fee was calculated or on what it was based.
17. Neither FNB nor Purolator presented any written contract concerning the service.
18. All Bills of Lading for FNB's pickups were provided by the carrier in bulk to FNB, and were pre-printed with the name of the shipping bank and FNB's correspondent bank in the Federal Reserve System. All Bills of Lading were issued before the movement of the shipments at issue in this action.
19. Employees in FNB's Proof and Transit Department would fill out the blank Bills of Lading. It has been and continues to be the routine practice of that department to identify such daily shipments as "boxes" and "letters" on the carrier's Bill of Lading. FNB did not identify the specific contents of the shipments; nor did it declare a value in the space provided.
20. Shipment number 1, the October 31, 1988, cash letter of FNB, was not timely delivered to the correspondent bank. Purolator misplaced it, and it was not found until on or about November 15, 1988.
21. FNB shipments number 2 of May 18, 1989, numbers 3 and 4 of May 24, 1989, and number 5 of May 26, 1989, were not delivered by the carrier before the required time of 11:00 p.m. the evening of the pickup.
22. The carrier picked up all five shipments at issue in this action at FNB on the date indicated on the Bill of Lading for the shipment.
23. The bills of Lading provided by the carrier in transporting FNB's cash letter for the October 31, 1988, shipment and the May 18, 1989, shipment bore the name "Purolator Courier Corporation."
24. The Bills of Lading provided by the carrier in transporting FNB's cash letter for the May 24, 1989, and May 26, 1989, shipments bore the name "Emery & Purolator Worldwide Courier & Cargo."
25. David Foster, the Vice-president of Operations for FNB, testified as to having observed carrier employees in Purolator uniforms and a van with "Purolator" on the outside into which the shipments were placed.
26. The appellation, "Emery & Purolator Worldwide Courier and Cargo", instead of "Purolator", appeared on a number of documents. It was on the May 24 and 26 Bills of Lading provided by the carrier, some publicity sent by defendants to FNB, and the letterhead on various correspondence between the parties.
27. Three of the Bills of Lading for the cash letter bear the signature of employees of FNB's Proof and Transit Department, while two Bills of Lading do not (P-2 through P-5).
29. FNB needed to have its canceled checks delivered to its correspondent bank by the carrier each day before 11:00 p.m. so that the face amount of those items would be reflected as ...