The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT Pending now before the Court is DEFENDANT'S MOTION IN LIMINE, filed by Defendant Larry J. Lint Floor & Wall Covering Co., Inc. ("Lint Tile") at Doc. # 57, and LAUFEN'S RESPONSE IN OPPOSITION OF DEFENDANT'S MOTION IN LIMINE (Doc. # 65).
The motion is ripe for disposition. For the reasons that follow, Defendant's motion will be granted in part and denied in part.
Generally speaking, this case is a commercial breach of contract
action involving the sale of goods.*fn1 Plaintiff
Laufen International, Inc. ("Laufen") is a manufacturer of tile and
has its principal place of business in Miami, Florida.*fn2
Doc. No. at ¶ 1. Defendant Lint Tile is a
wholesaler and distributer of tile and has its principal place of
business in Westmoreland County, Pennsylvania. Id. at ¶ 2. The claims
contained in the complaint and the counterclaim arise from the
previous commercial relationship of the parties that began in 2007. On
or about March 25, 2007, Defendant Lint Tile submitted a credit
application to Plaintiff in order to establish the ability to purchase
Plaintiff's tiles and other goods on credit. At the time, John Popely
was employed by Plaintiff, and handled the Lint Tile account. In the
course of conducting those responsibilities, Popely would communicate
with Edward Lint, who manages Lint Tile and is the son of Larry J.
Lint, the owner of Lint Tile. As a Laufen employee, Popely reported to
Jorge Torres, the company's vice president of sales. Throughout 2007,
Plaintiff and Defendant engaged in a number of commercial
arrangements, including the purchase and shipment of tile orders
beginning in and around May 2007. Additionally, and directly at issue
in the matter sub judice, Plaintiff and Lint Tile reached a marketing
support agreement on or about June 28, 2007.
The terms of the June 28, 2007 agreement between Laufen and Lint Tile are at the heart of the breach of contract dispute. In terms of the actual format of the agreement, it was apparently a single page document that was exchanged between the parties via facsimile transmission, and was signed by Popely on behalf of Plaintiff Laufen. Popely described the agreement as Lint Tile "was going to purchase so much material, in return [Plaintiff] was going to supply him some merchandising material." See Doc. # 48, Popely Depo. Tr. at Tr. p. 35. Relevant to Defendant's Motion in Limine, different versions of that writing were included within the evidentiary record at the summary judgment stage, and the parties disagree over which particular document memorialized the actual agreement. There is no dispute, however, that in either "version" of the agreement, Laufen offered several types of merchandising material support to Lint Tile, such as the purchase and installation of display racks in the Lint facility, and 500 sets of tile sample boards to display the various types of Laufen tile being sold to Lint Tile for resale under Lint Tile's own brand name. The display racks were installed at Lint Tile at an alleged cost to Plaintiff of $300,000.00. The sample boards, on the other hand, required more time to produce, and were manufactured by a third-party corporation, Brown Industries, Inc., in Georgia.
Plaintiff identifies a specific document that had been signed by Popely which sets forth a number of terms constituting the agreement (identified within the evidentiary record as Popely Deposition Exhibit 1, or "Popely Exhibit 1"). See Doc. # 48, Laufen's Response to Lint's Concise Statement of Material Facts at ¶ 20; see also, exhibit 12 to Laufen Response. During his deposition, Popely identified Popely Exhibit 1 as the written agreement. The Court notes that the upper segment of Popely Exhibit 1 contains the following:
Description Estimated Value Pricing No discount Merchandising 500 nicer displays $500,000 Additional Marketing Support (rebate) 10% $250,000 Term s 5% $64,167 Total Prom otion Value $814,167 % of First Order 32.6% % of Proj. One Year Sales 17.6%
Id. Below this upper segment of the agreement, the following type-written terms were included:
Orders that are shipped out of Roca warehouses Lint Tile will only charged $150 Roca will pay for racking system (Lint Tile will Give Roca Invoice) $25,000 to $30,000 Roca will honor the 5% rebate for 1 year from the date of invoice Roca will pay for a trip for Larry Lint which would be used within 1 year. Hunting Trip $20,000 to $30,000
Roca will co-op 50% of a sale training seminar If Lint Tile places the USCT orders by June 29 no later than 3:00 PM Roca will by [sic] Lint Tile a $25,000 Truck This proposal is final and Roca will not RENEGE Doc. # 48, Exhib. 12 to Plaintiff's Response to Lint Concise Statement of Material Facts ("Popely Exhibit 1").
Defendant Lint Tile, on the other hand, identifies an alternative version of the agreement, referenced throughout the record as Lint Deposition Exhibit 4 ("Lint Exhibit 4"), as being the actual agreement. See Doc. # 55, Defendant's Pretrial Statement at Exh. B (a copy of which was included in Defendant's filings as part of the evidentiary record at summary judgment). Similar to Popely Exhibit 1, Lint Exhibit 4 is generally organized into upper and lower segments. See Doc. # 39, Lint Exhibit 4, attached to Lint's Concise Statement of Material Facts at exhibit 5. The upper segment of Lint Exhibit 4 is identical to the upper segment of Popely Exhibit 1. The lower segment of Lint Exhibit 4, however, does not include the same listing of typed terms; instead, it reflects the following three typed terms, followed by four handwritten terms allegedly written by Popely:
All prices at East Coast prices, but delivered to Pittsburgh Container Yard. 500 displays will be used for several years as new Lint Tile program. For return on investment one year consider [sic]
Interest rate considered at 5%.
Roca will pay for Racks for the Roca Room. 30,000 Co-op a training Seminar which will be held soon. Hunting trip for Larry ...