The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge
This matter is before the court on Plaintiff's Motion for
Reconsideration to Vacate Judgment and for Summary Judgment filed May 5,
2003.*fn1 Plaintiff seeks the reversal of our Order granting summary
judgment in favor of defendants and against plaintiff, which Order was
placed on the record after argument held April 22, 2003. We
simultaneously placed the
reasons for our determination on the record. Because we conclude
that summary judgment was properly granted in favor of defendants and
against plaintiff, we deny plaintiff's motion for reconsideration.
In the within civil action, plaintiff asserts a claim under the
Perishable Agricultural Commodities Act*fn2 ("PACA"). The matter is
before the court on federal question jurisdiction. 7 U.S.C. § 499e(c)(5);
28 U.S.C. § 1331. Venue is appropriate because the facts and
circumstances giving rise to plaintiff's cause of action occurred in
Berks County, Pennsylvania, and because defendants may be found in Berks
County. See 28 U.S.C. § 118, 1391.*fn3
On April 22, 2003, the undersigned held oral argument on the
cross-motions for summary judgment of the
parties. At the conclusion of argument, on the record, in open
court, and in the presence of counsel for the parties, the undersigned
entered an Order granting defendant's motion for summary judgment,
denying plaintiff's motion for summary judgment, and dismissing
plaintiff's Complaint. Also at that time, the undersigned placed the
reasons for the decision on the record, which we incorporate here. Our
April 22, 2003 Order was reduced to writing and filed on May 7, 2003.
Based upon the pleadings, record papers, affidavits, uncontested
exhibits, and agreements of counsel at oral argument, the pertinent facts
are as follows. On December 4 and 6, 1998 and May 15, 1999, plaintiff
Phillips Mushroom Farms, L.P. (Phillips) sold persishable agricultural
commodities to defendant Gold Star Mushroom Company, Inc. (Gold
On December 4, 1998, Phillips sold 18,382 pounds and 2860 containers of
brown agricus-biporus mushrooms, known in the marketplace as portabella
mushrooms ("portabellas"), to
Gold Star for $20,539.00.*fn5 Two days later, on December 6, 1998,
Phillips sold 18,638 pounds and 2860 containers of portabellas to Gold
Star for $20,857.20.*fn6 Plaintiff requested payment within 25 days in
the invoices for both the December 4 and December 6 shipments.
On January 8, 1999, James Angelucci, General Manager of Phillips, wrote
to the Northeast Region of the PACA Branch of the Fruits and Vegetable
Division of the Department of Agriculture. He wrote to file an informal
complaint against Gold Star for delinquency concerning mushrooms sold to
Gold Star from November 14, 1998 to December 6, 1998. The letter states
that Gold Star had proposed a payment schedule of $3,000.00 per week for
the $203,433.90 which Gold Star owed Phillips for mushroom sales. Mr.
Angelucci claims that this offer was unacceptable.*fn7
On January 14, 1999 Robert Smith, Controller for Gold Star, sent a
letter to plaintiff in which he offered another alternative payment plan.
Included in the letter was a check for $10,000.00 and a copy of a
"Promissory Judgment Note".*fn8 The Promissory Judgment Note provided
that Gold Star would pay Phillips for various outstanding debts,
including the December 4 and December 6 sales, totaling $203,433.90. By
the terms of the note Gold Star was to have until September 2, 1999 to
pay its debt.*fn9
On January 20, 1999, plaintiff responded to Mr.
Smith's letter. In the response, plaintiff agreed to the terms of
the letter and the "Promissory Judgment Note". The acceptance letter was
signed by R. Marshall Phillips, General Partner of Phillips.
On January 20, 1999, Mr. Smith sent another letter to plaintiff. This
letter enclosed a $6,000.00 check and a signed copy of the "Promissory
Judgment Note". The letter also states that Mr. Smith understood from Tom
Tranquillo, an agent of Gold Star, that plaintiff had agreed to the terms
of the note.
On May 15, 1999 Phillips Mushroom sold 20,562 pounds and 2880
containers of portabellas to Gold Star for $25,086.30.*fn10 The invoice
for the May 15 sale requested payment within 25 days.
On June 1, 1999, Mr. Angelucci wrote to Mr. Smith. The letter purports
to memorialize a conversation held between Mr. Angelucci and Jim
Penturelli, an agent of Gold Star.*fn11
According to the letter, the
parties agreed to change the existing promissory note by altering the
agreement term and the weekly payment amount contingent upon the
Until this Promissory Judgment Note is paid in
full, Obligor agrees not to sell, package,
furnish, market, or otherwise make available to
the fresh market, brown Agricus-biporus mushrooms
known in the marketplace as Crimini or Portabella
mushrooms. This in no way limits Obligor from
processing the aforementioned mushrooms.
The letter continues that if the ...