The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to the Perishable Agricultural Commodities Act of 1930 ("PACA"), 7 U.S.C. § 499a et seq. Plaintiff Genecco Produce, Inc. ("Plaintiff") commenced this action against defendant Sol Group Co. ("Defendant") after the United States Secretary of Agriculture ruled against plaintiff in an administrative proceeding. Now before the Court is a motion for summary judgment [#56] by defendant. For the reasons that follow, the application is denied.
This action involves a dispute between the parties over payments allegedly owed for eleven separate shipments of watermelons. All the invoices were designated as "FOB Pompano".*fn1 The invoices further listed the amount and general type of watermelon being sold, but not the grade of melon. Defendant demanded payment from plaintiff, and after plaintiff refused to pay the full amount demanded, defendant filed a petition with the U.S. Secretary of Agriculture, pursuant to PACA, 7 U.S.C. § 499a. A hearing was held before an Administrative Judicial Officer, who determined that plaintiff owed defendant a total of $38,328.28, plus interest and statutory handling fees.*fn2 Plaintiff subsequently commenced this action, pursuant to 7 U.S.C. § 499g(c).
During discovery, defendant took the deposition of David Genecco ("Genecco"), plaintiff's president. Genecco testified regarding his dealings with defendant's sales representative, Al Guzi ("Guzi"), generally as follows:
Al Guzi would call me up in the morning and say, you know, 'I've got three or four loads of cantaloupes to move. Help me out.' Okay? I'd say, 'What have you got to have for them?' And he would say, 'Well, do the best you can.' So we'd get the melons, I would send him two or three trucks that day for an example. We'd send the melons or cantaloupes, watermelons, whatever it was to where they went to. If the melons were good, they were accepted by the customer, I paid the man in full whatever we agreed on. [If] [t]he melons were bad . . . the customer got an inspection, we faxed him [Guzi] the inspection on the load. And he told me to do the best I could [o]n several occasions and sometimes the best you could do [was that] the product was not salable.
[When I could sell the melons] I would tell [Guzi] what I got for the stuff and he sent me a bill.
[Where there was a problem with a load,] [t]he customer would call me, I would call Al [Guzi] and I told Al that, 'Listen, this guy is not liking this.' And he says, 'Well, get an inspection." . . . So we get an inspection, I fax him the inspection, I say - call Al back. 'Al, what do you want to do?' He says, 'Will the guy work the load? Will he do the best he can? Will he handle the load?' Sometimes the customer would, sometimes the customer wouldn't. If the customer would handle the load, they did, we returned them what he had. And if they wouldn't handle it, sometimes you had more money in freight than you could get for the stuff. (Genecco Dep. pp. 24, 27, 30-31; 165-68 ) Genecco testified that he and Guzi understood that the sales were not actually f.o.b.:
Q: Did you send anything in writing back to Mr. Guzi disagreeing with the FOB Pompano designation on the document?
A: Listen. He knew we had a common relationship that I would send trucks to him an he put a price on the bill what it should be FOB and I paid for the freight. And as long as the stuff was good, I paid the freight and he gave me a bill for whatever the stuff was. Okay? As far as me being responsible for the fruit when it left that place, that was never the case.
Q: Mr. Genecco, did you send anything in writing to [defendant] disagreeing that the terms of this invoice were Pompano FOB?
A: I never agreed to it and I never disagreed to it. ***
Q: So you're refusing to tell me whether you sent anything in writing . . . [about] whether you disagreed with Pompano FOB[?]
A: I may never have done it in writing but we had a mutual understanding the way the deal was. I mean, we didn't just do this load, we did thousands of loads. (Id. at 48-50; see also, Id. at ...