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Fishman Organization, Inc v. Frick Transfer

July 24, 2012


The opinion of the court was delivered by: Eduardo C. Robreno, J.


The Fishman Organization ("Plaintiff") brings this diversity action against Frick Transfer ("Defendant") to recover damages caused by the breach of a bailment contract between the parties. Plaintiff moves for summary judgment on the issue of liability. For the reasons that follow, the Court will grant in part and deny in part the Motion for Summary Judgment on Liability.


Defendant operates a moving, storage, and warehouse business in Easton, Pennsylvania. Compl. ¶ 6, ECF No. 1; Answer ¶ 6, ECF No. 5. Since 1995, Plaintiff, a New York corporation, stored certain goods in Defendant's facilities. Compl. ¶ 1; Jerry Fishman Dep. 9:21-22, Dec. 6, 2011.

On January 1, 2002, Plaintiff entered into an agreement whereby Defendant would store Plaintiff's goods at Defendant's Wilson Park Distribution Center ("Wilson Park"). Warehouse/Distribution Services Agreement (Wilson Park) ¶ 2 (Jan. 1, 2001) [hereinafter Wilson Park Agreement]. The initial term of the agreement commenced on January 1, 2002, and ended on December 31, 2002. Id. ¶ 1. After December 31, 2002, the agreement extended on a month-to-month basis "until either party provides to the other a thirty (30) day written notice of its intention to terminate [the agreement]." Id. The parties assigned the risk of loss to Plaintiff as follows:

Fishman shall assume the risk of loss or damage to its goods stored on the premises, and agrees to indemnify and hold Frick and Wilson Park Ltd. and their respective agents, officers, directors, employees and partners, harmless from any loss or expense, other than risk of loss or damage to Goods caused by Frick's negligence and limited to the extent of Frick's insurance.

Id. ¶ 5.

On July 29, 2004, Plaintiff purchased 240 cartons of Acqua di Gio Man EDT Spray 100 ml ("the Product") from a distributor in Barcelona, Spain, at a cost of $164,045.42. See Mot. Summ. J. Ex. B, ECF No. 15. Plaintiff stored the Product at Wilson Park. See id.

On June 2, 2006, Defendant notified its warehouse customers by letter that they must remove items stored at Wilson Park, because the warehouse would be renovated for use as a condominium. Mot. Summ. J. Ex. C. Frick Transfer President Paul S. Robison testified that the letter terminated Defendant's warehouse storage arrangements with its customers. Robison Dep. 37:6-16, Dec. 6, 2011.

On September 5, 2006, Defendant notified its warehouse customers by letter that Defendant would operate a new warehouse facility on Tatamy Road in Easton, Pennsylvania ("Tatamy Warehouse"). Mot. Summ. J. Ex. D. Defendant explained that its joint venture with WilsonPark, whereby Defendant provided labor and WilsonPark provided storage space, was dissolved and Defendant would now handle all operations at the Tatamy Warehouse. Id. Defendant invited its customers to contact it to relocate their items to its new facility and reminded them that they otherwise must remove any items at Wilson Park by September 29, 2006. Id.

On September 7, 2006, in response to Plaintiff's interest in storage at the Tatamy Warehouse, Defendant sent a proposal to Plaintiff.*fn2 Mot. Summ. J. Ex. E. In September 2006, Defendant moved Plaintiff's inventory from Wilson Park to the Tatamy Warehouse. Answer ¶ 14.

On May 27, 2010, Wayne Frick, Defendant's employee, received a telephone call from Steven Lewandowski, the brother of an employee, Daniel Lewandowski. Frick Dep. 17:23-18:6; 23:4. Steven explained that Daniel stole perfume from pallets in the warehouse and was selling the perfume. Id. at 19:7-19. Frick spoke with Robison, who directed Frick to check Plaintiff's storage room. Id. at 20:5-6. When Frick arrived at Plaintiff's storage room, the gate was shut, there was a chain around the gate, and the lock was on. Id. at 21:2-3. He unlocked the gate and inspected the room. Id. at 21:3-4. Frick noticed two empty pallets in the room but did not notice anything out of the ordinary. Id. at 21:3-23. Defendant did not report the alleged theft to Plaintiff or the police. Id. at 23:12-17.

On September 22, 2010, Diane Fishman, an officer and employee of Plaintiff, arranged with Defendant to access Plaintiff's storage area the following day.*fn3 Compl. ¶ 16; Answer ¶ 16. On September 23, 2010, Diane Fishman discovered that some of the Product was missing and reported the incident to Frick. Frick Dep. 23:4-9. At that point, Frick informed Diane Fishman that he received a report that an employee stole some of the Product. Id. at 23:18-24:3.

On June 9, 2011, Daniel Lewandowski pled guilty to receiving stolen property in the Pennsylvania Court of Common Pleas of Northampton County pursuant to a negotiated plea agreement. Answer ΒΆ 19; Lewandowski Dep. 36:7-19. Lewandowski testified at his deposition relating to this civil action that from June 2008 to September 2009 he removed cases of the Product until none was left. Id. at 22:7-31:8. In each instance, Lewandowski testified that, although a lock was in place on the door to Plaintiff's storage area, the gate was actually unlocked, which allowed him to walk through the front gate to access Plaintiff's storage area. Id. at 17:19-18:2; 25:12-26:4; 29:14-16. Lewandowski further testified that ...

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