LAUFEN INTERNATIONAL, INC. v. LARRY J. LINT FLOOR & WALL COVERING, CO., INC. et al
Filing
74
MEMORANDUM OPINION & ORDER OF COURT granting 58 Motion in Limine; denying 60 Motion in Limine and granting 62 Motion in Limine. Signed by Judge Terrence F. McVerry on 4/27/2012. (kly)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAUFEN INTERNATIONAL, INC.,
)
)
Plaintiff,
)
) 2:10-cv-199
v
)
)
LARRY J. LINT FLOOR & WALL COVERING, )
CO., INC.,
)
)
Defendant.
)
MEMORANDUM OPINION AND ORDER OF COURT
Pending now before the Court are three motions in limine (Doc. ## 58, 60, and 62) filed
by Plaintiff Laufen International, Inc. (“Laufen”), as well as briefs in support to each respective
motion (Doc. ## 59, 61, and 63). Defendant Larry J. Lint Floor & Wall Covering Co., Inc.,
(“Lint Tile”) has opposed each motion with the filing of DEFENDANT’S RESPONSE TO
PLAINTIFF’S MOTIONS IN LIMINE at Doc. # 66. The motions are ripe for disposition. For
the reasons that follow, the Court will grant Doc. ## 58 and 62, and deny Doc. # 60.
STATEMENT OF THE CASE1
This case is a commercial breach of contract action involving the sale of goods.2 Trial is
scheduled to commence on May 7, 2012, and Plaintiff filed the instant motions in limine seeking
1
The Court detailed the factual and procedural background of this case in its
Memorandum Opinion and Order dated January 11, 2012, Doc. # 52. Because familiarity with
that Memorandum Opinion and order is presumed, this section is limited to the facts relevant to
the disposition of the instant motions.
2
Originally, the complaint also contained claims sounding in tort stemming from
allegations involving two individually named Defendants. Following this Court’s determination
on Defendants’ motions for summary judgement, those individual Defendants were granted
summary judgment as to the tort claims, and all that remains is the breach of contract claim and
counterclaim. See Doc. No. 52.
to exclude various evidence.
LEGAL STANDARD
A motion in limine is a pretrial motion which requests that the Court prohibit opposing
counsel from referring to or offering evidence on matters prejudicial to the moving party. See,
e.g., Emcore Corp. v. Optium Corp., Civ. A. No. 7–326, 2009 U.S. Dist. LEXIS 96305, *2, 2009
WL 3381809 (W.D.Pa. Oct. 16, 2009) (quoting Black's Law Dictionary 1013 (6th ed.1990)). The
purpose of such motion is to avoid injecting into trial matters which are irrelevant, inadmissible,
and prejudicial. Id. at *2–3. In other words, motions in limine narrow the evidentiary issues for
trial and eliminate unnecessary trial interruptions. Id. at *3 (quoting Bradley v. Pittsburgh Bd. of
Educ., 913 F.2d 1064, 1069 (3d Cir.1990)).
The instant motions in limine seek to exclude evidence on the basis of relevance or
prejudice. Rule 402 of the Federal Rules of Evidence provides that “[r]elevant evidence is
admissible unless any of the following provides otherwise: the United States Constitution; a
federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is
not admissible.” Fed.R.Evid. 402. Under Rule 401, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Fed.R.Evid. 401. Pursuant to the balancing test
of Rule 403, a court “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed.R.Evid. 403.
ANALYSIS
2
The Court will address each of Plaintiff’s motions in limine ad seriatim.
A.
Doc. # 58
In its motion, Plaintiff contends that the Court should construe the marketing support
agreement between the parties as requiring Defendant to purchase a minimum of $2,500,000.00
of tile in order to receive the marketing support itemized in the agreement. Defendant, on the
other hand, contends that such an order requirement is an ambiguous term, and therefore, cannot
be decided as a matter of law. Doc. # 66 (citing Compass Technology, Inc. v. Tseng
Laboratories, Inc., 71 F.3d 1125, 1131 (3d Cir. 1995)). Defendant’s point is well taken, at least
in part, and it is appropriate to consider Plaintiff’s request with precision in order to identify what
it is, and what it is not, requesting.
Plaintiff Laufen International, Inc. (“Laufen”) is a manufacturer of tile and has its
principal place of business in Miami, Florida.3 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 claim contained in the complaint and the counterclaim occurred in
the course of the commercial relationship between 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
3
Laufen International, Inc., is one of several companies owned by a Spanish
company called Roca Tile Group. Doc. # 42 at ¶ 1. At some point during the 1990s, Plaintiff
Laufen acquired United States Ceramic Tile, an Ohio-based ceramic tile manufacturing company.
Id. at ¶ 2. Thereafter, Roca acquired Laufen in 1999. Doc. # 48 at ¶ 2.
3
Lint Tile and is the son of Larry J. Lint, the owner of Defendant Lint Tile. As a Laufen
employee, Popely reported to Jorge Torres, the company’s vice president of sales. Throughout
2007, Plaintiff and Defendant maintained 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 allegedly 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. Popely described the agreement as
follows, that 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. An
issue in this case stems from different versions of that writing that were included within the
evidentiary record at the summary judgment stage purportedly evincing the agreement, and the
parties disagreement 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 to be sold by Lint Tile 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.
4
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:
ORDER
$
2,500,000
New Offer
Description
Estim ated 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").
5
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 to be determined at later date.
Aprox. [sic] 20,000 - 30,000.
5% rebate for payment within 1 year of the date receiving
material
Id. Under these terms was additional language, presumably handwritten by Lint, that to that term
the following: “of displays and samples not tile 6-26-07 Ship display first.” Id. Lint Exhibit 4
6
allegedly bears the signature of Popely.4
Generally speaking, there is little variation between the handwritten terms of Lint Exhibit
4 and the typed language of Popely Exhibit 1, as both contain references to a racking system, a
5% rebate, and a hunting trip for Defendant Lint’s father Larry. The significant difference
between the two is the handwritten addendum to the 5% rebate term of Lint Exhibit 4 in which
Edward Lint included language regarding Plaintiff’s obligation to ship the displays and samples
before the one year time frame within which the rebate would accrue.
With its motion at Doc. # 58, Plaintiff contends that the merchandising support agreement
between the two parties included a threshold purchase amount of $2,500,000.00 of tile to be
ordered by Defendant in order to receive certain incentives and merchandising support.
Defendant opposes Plaintiff’s motion on the basis that the term was ambiguous and that there is
an issue of fact whether there was a meeting of the minds because Edward Lint testified during
his deposition that “there was never talk about how big the order was supposed to be.” Doc. # 66
(referencing the summary judgment record).
It is well settled that the goal of contract interpretation is to discover the parties' objective
mutual intent. Under Pennsylvania law “‘[i]t is firmly settled that the intent of the parties to a
written contract is contained in the writing itself.’” Samuel Rappaport Family Partnership v.
4
Defendant Lint Tile’s counterclaim against Plaintiff is predicated upon these
handwritten terms, especially the language written by Edward Lint himself purportedly prior to
the agreement being reached. According to Edward Lint, “I wrote on the paper that Lint Tile’s
payment to [Plaintiff] was not due until one year after receiving ‘displays and samples not tile.’”
Doc. # 39-9, Lint Affidavit. Edward Lint also testified as to his understanding under the
agreement that he was “supposed to buy tile, they were supposed to give me 500 sets of boards,
500 sets of samples, I pay for everything after I receive all my sample boards and displays. A
year after I received the sample boards and displays, I pay for them. Case closed, that’s the deal.”
Doc. # 50, Depo. Tr. of Lint at Tr. p. 49.
7
Meridian Bank, 441 Pa.Super. 194, 657 A.2d 17, 21 (1995) (quoting Krizovensky v. Krizovensky,
425 Pa.Super. 204, 624 A.2d 638, 642-43 (1993)); see also Hullett v. Towers, Perrin, Forster &
Crosby, Inc., 38 F.3d 107, 111 (3d Cir.1994) (“Pennsylvania courts apply the ‘plain meaning
rule’ of interpretation of contracts which assumes that the intent of the parties to an instrument is
‘embodied in the writing itself....’”)(citation omitted). Thus, where, as here, the parties have
reduced their agreement to writing, Pennsylvania courts presume that the parties' mutual intent
can be ascertained by examining the writing. Only where the writing is ambiguous may the
factfinder examine all the relevant extrinsic evidence to determine the parties' mutual intent.
Allegheny Int'l, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1424 (3d Cir.1994).
Therefore, as a preliminary matter, courts must “‘determin[e] as a matter of law which category
written contract terms fall into-clear or ambiguous.’” Id. (citation omitted). As the Court of
Appeals for the Third Circuit has noted, there are two kinds of ambiguity, patent ambiguity and
latent ambiguity:
a patent ambiguity is that which appears on the face of the instrument, and arises
from the defective, obscure, or insensible language used. Black's Law Dictionary 105
(rev. 4th ed. 1968). In contrast, a latent ambiguity arises from extraneous or
collateral facts which make the meaning of a written agreement uncertain although
the language thereof, on its face, appears clear and unambiguous.
Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 613-14 (3d Cir. 1995)(internal
quotations and citation omitted).
Because of Pennsylvania's presumption that the writing conveys the parties' intent:
[a] contract will be found ambiguous if, and only if, it is reasonably or fairly
susceptible of different constructions and is capable of being understood in more
senses than one and is obscure in meaning through indefiniteness of expression or
has a double meaning. A contract is not ambiguous if the court can determine its
meaning without any guide other than a knowledge of the simple facts on which,
8
from the nature of the language in general, its meaning depends; and a contract is not
rendered ambiguous by the mere fact that the parties do not agree on the proper
construction.
Id. (internal quotations omitted).
Pennsylvania law permits courts to examine certain forms of extrinsic evidence in
determining whether a contract is ambiguous. But lest the ambiguity inquiry degenerate into an
impermissible analysis of the parties' subjective intent, such an inquiry appropriately is confined
to determining “the parties’ linguistic reference.” Mellon Bank, N.A. v. Aetna Business Credit,
Inc., 619 F.2d 1001, 1011 n. 12 (3d Cir.1980). In other words, “extrinsic evidence may be
utilized to demonstrate the existence of a latent ambiguity.” Meridian Bank, 657 A.2d at 22
(citing Lohmann v. Piczon, 338 Pa.Super. 485, 487 A.2d 1386 (1985)). The Third Circuit has
provided a perfect illustration of this point with its decision in Mellon Bank, noting that a written
contract referred to $10,000, and yet, unless the court looked at extrinsic evidence, it may not
have learned that the parties were referring to Canadian rather than American dollars. 619 F.2d
at 1011 n. 12. In making ambiguity determinations, then, courts “‘consider the words of the
contract, the alternative meaning suggested by counsel, and the nature of the objective evidence
to be offered in support of that meaning.’” Hullett, 38 F.3d at 111 (citation omitted).
Here, the words of the contract, at least in terms of this challenged language, do not
present a patent ambiguity. Either document propounded by the parties contains the explicit term
at the top of the page, “Order $2,500,000". Such a term is clear, is neither obscure or insensible
language, and does not require any additional knowledge to determine its meaning. The fact that
Edward Lint testified that he did not understand that express term to actually mean that
Defendant was expected to order $2.5 million dollars of tile under the agreement is little more
9
than an attempt to draw the Court’s analysis into an impermissible consideration of subjective
intent. At the same time, however, while the Court finds that either version of the contract
required Defendant to purchase an amount of tile ($2.5 million), the contract does not specify a
time period within which such tile orders must have been placed, nor what orders by Defendant
may be included within that requisite amount. In other words, the Court is not ruling upon
whether Defendant satisfied said term under the agreement, only that the language of the
agreement itself did include a term requiring a purchase of $2.5 million.
B.
Doc. # 60
Plaintiff next argues that Defendant should be precluded from presenting Lint Exhibit 4
on the basis that the authenticity of said document has been challenged, and that Defendant has
yet to produce the original. Essentially, Plaintiff challenges Defendant’s version of the
agreement by questioning its authenticity, and more specifically alleges that it was fabricated
after the payment dispute arose.
According to Plaintiff, a question arose within the company regarding Defendant’s failure
to pay the invoices for tile that had been shipped. On November 15, 2007, Edward Lint emailed
a version of Lint Exhibit 4 (Defendant’s purported version of the agreement) to Laufen employee
Jenn Turowski (the details of which are set forth in an affidavit from Laufen employee Jason
Incarnato, an IT Systems Manager who conducted a search of Plaintiff’s email system during
discovery). See Doc. # 48 at exhibit 14, affidavit of Jason Incarnato. The attachment to that
email appeared to be a color scan of a two page document, the first page of which was Popely
Exhibit 1, and the second page was an unsigned version of Lint Exhibit 4. Id. Incaranto’s
affidavit, which included printed copies of the email message itself as well as the two page
10
attachment to the email, has been included in Plaintiff’s Pre-Trial Statement as a proposed
exhibit. See Doc. # 54 at ¶ E.13.
In its own motion in limine (Doc. # 57), Defendant sought to preclude the testimony of
Incarnato as not relevant. The Court denied that motion without prejudice. See Doc. # 73.
Plaintiff attempts to preclude Defendant from introducing Lint Exhibit 4 at trial as a sanction by
the Court on the basis that the original has not been produced by Defendant despite having been
requested in discovery, or, alternatively, that Defendant not be permitted to introduce a copy of
Lint Exhibit 4 under the Best Evidence Rule, which restricts the admission of evidence
purporting to prove the content of certain writings See Doc. # 61. Specifically, Plaintiff raises
the following objection to the introduction of anything other than the original document:
How and when Popely’s signature found its way onto the same page as Lint’s
claimed handwritten summary of the agreement attached to Ed Lint’s Affidavit is
unknown. Since neither the original nor an authenticated copy of the document has
been produced, and the person whose signature is purported to be affixed to the
document contends the document is not the agreement, Laufen contends that the
document was fabricated long after the dispute arose and does not contain the terms
of the marketing support agreement.
Id at 3.
The Best Evidence Rule, codified in Federal Rule of Evidence 1002, provides: “To prove
the content of a writing, recording, or photograph, the original writing, recording, or photograph
is required, except as otherwise provided in these rules or by Act of Congress.” Pursuant to
Fed.R.Evid. 1003, duplicates are admissible to the same extent as an original document unless
(1) a genuine question concerning the authenticity of the document is raised, or (2) it would be
unfair in the circumstances of the case to admit the original. In addition, an original is not
required if the original document has been lost or destroyed, unless the loss or destruction was in
11
bad faith. Fed.R.Evid. 1004.
Defendant opposes Plaintiff’s motion, and responds in relevant part that it will produce
the original signed handwritten term sheet (Lint Exhibit 4) at trial. Doc. # 66. Further,
Defendant proffers that Popely will testify as to the authenticity of his signature on Lint Exhibit 4
and his recollection as to the approximate time frame in which he wrote the terms and signed the
document. Id. Considering Plaintiff’s challenge to the introduction of any duplicate form of Lint
Exhibit 4, and in light of Defendant’s response to provide the original at trial as well as to
introduce testimony to authenticate the document, the Court will deny Plaintiff’s motion without
prejudice. That said, however, the parties should know that only the original authenticated
document will be admissible into evidence at trial.
C.
Doc # 62
Plaintiff moves to exclude evidence of terms of a written proposal from Laufen to Lint
Tile that was made in May of 2007, and subsequently revoked prior to the June 28, 2007
agreement. On or about May 30, 2007, Popely, on behalf of Plaintiff, sent Defendant Edward
Lint a document identified as “Lint Tile First Order Agreement Letter May 07". See Doc. # 39-2
at ¶ 9. That document noted, in relevant part, that Plaintiff “will supply 500 displays at no
charge.” Id. The document further noted that Plaintiff would pay a rebate to Lint Tile after the
first order was shipped, and that the rebate would be either 20 % or 30 % depending upon the
type of tile ordered by Lint. Id. Additionally, Plaintiff offered a price discount to Lint Tile of,
once again, 20 % or 30 % depending upon the type of tile ordered. Id. Apparently, those terms
were agreeable to Defendant, and Lint Tile proceeded to place orders for tile in excess of one
million dollars between May 31 - June 4, 2007. After those orders were placed, however
12
Plaintiff, informed Defendant that it could not honor the rebate amounts previously offered and
price discounts, at which point, the deal fell apart.5 The state of the arrangement between the
parties at that time subsequently evolved into the purported June 28, 2007 merchandising support
agreement.
Plaintiff now seeks to preclude Defendant’s introduction of the terms of the May, 2007,
interaction, particularly the “supply 500 displays at no charge” term, on the basis of relevance.
See Doc. # 63. More specifically , Plaintiff argues that because there was no agreement reached
in May of 2007, and because said term was not expressed in writing in the June 28, 2007,
agreement (under either version), that any reference to the irrelevant term could create the danger
of unfair prejudice, the confusion of issues, misleading the jury, or waste time. Id.
For its part, Defendant now seems to contend that there was a contract formed in May,
2007, a contract that was unilaterally cancelled by Plaintiff. See Doc. # 66. This seems to fly in
the face of Edward Lint’s own deposition testimony referenced herein, as well as the Defendant’s
position throughout the course of the litigation that the Lint Exhibit 4 version of the marketing
support agreement from the end of June, 2007, was the agreement at issue here. To that end,
Plaintiff’s motion in limine to preclude Defendant from introducing evidence that the May 30,
2007, written offer was an enforceable contract between the parties. The analysis does not stop
there, however.
5
Although he was apparently unhappy with this development at the time, Edward
Lint subsequently acknowledged that Plaintiff’s characterization that the interaction between the
parties was a negotiation that did not result in a contract. See Doc. # 42 at Exh. 2, Dep. Tr. of
Edward Lint. (“Q: So would it be fair to say that this initial - this first attempt at a deal didn’t
come to a deal? A: Correct. Right. Q: You could have both walked away and nobody owed
anybody anything? A: Yep.”)
13
One of the key issues in this case concerns the question of which party was responsible to
pay the freight charges to have the display boards delivered to Lint Tile’s facility. The marketing
support agreement included no express provision regarding the freight charges. Plaintiff’s
position is simply that “it is custom in the industry that when the contract is silent as to freight,
the cost of freight is to be paid by the purchaser”, which would be Defendant. See Doc. # 48 at ¶
21.
Defendant, on the other hand, contends that the “supply 500 displays at no charge” carried
forward from the May 30, 2007 offer sheet, and therefore, Plaintiff was responsible. Doc. # 66.
Unlike the term “Order $2,500,000" that was written into the agreement, there was no
express term in the June 28, 2007 agreement regarding the payment of freight charges for the
displays being manufactured by Brown Industries. It is well settled in this Commonwealth that
in the absence of fraud, accident, or mistake, parol evidence as to preliminary negotiations or oral
agreement is not admissible in evidence if it adds to, modifies, contradicts, or conflicts with the
written agreement between the parties. Servomation Mathias Pa., Inc. v. Lancashire Hall, Inc.,
442 Pa. 602, 276 A.2d 547 (1971); Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968); Keyser
v. Margolis, 422 Pa. 553, 223 A.2d 13 (1966). As noted herein, however, it is equally well
settled that this general rule does not apply where the agreement is ambiguous. In such a
situation, parol evidence is admissible to explain the agreement and resolve ambiguities to
ascertain the meaning of the parties. Pavlich v. Ambrosia Coal Co., 441 Pa. 210, 273 A.2d 343
(1971); In re Fessman's Estate, 386 Pa. 447, 126 A.2d 676 (1956). In Carter v. Edwin J.
Schoettle Co., 390 Pa. 365, 134 A.2d 908 (1957), the Pennsylvania Supreme Court held that
where there is an integrated agreement, evidence of prior negotiations is inadmissible to show an
intent at variance with the language of the written agreement, but extraneous evidence is
14
admissible to show local usage which would give a particular meaning to the language.
However, in the absence of an express provision to the contrary, custom or usage, once
established, is considered a part of a contract and binding on the parties though not mentioned
therein, the presumption being that they know of and contracted with reference to it. See Gallizzi
v. Scavo, 406 Pa. 629, 179 A.2d 638 (1962); Leslie v. Pennco, Inc., 323 Pa.Super. 23, 470 A.2d
110 (1983); Fisher v. Congregation B'Nai Yitzhok, 177 Pa.Super. 359, 110 A.2d 881 (1955).
Here, there is no dispute that the term with respect to freight was not expressed in the
language of the written marketing support agreement itself. As such, Plaintiff relies upon the
contention that custom of the industry could provide that term. Defendant, on the other hand
contends that evidence of prior negotiation with respect to this particular term, specifically that
Plaintiff previously offered to “supply 500 displays at no charge” is relevant to the interpretation
to the subsequent agreement. On this particular point, the Court agrees with Plaintiff. Despite
the fact that the May 2007 negotiations included the term that freight was to have been paid by
Plaintiff, the exclusion of such term in the June 28, 2007 writing does not render such previous
negotiations to be illustrative of prior dealings sufficient between the parties to be admissible for
the purpose of explaining the agreement. Simply stated, the payment of the freight charges were
offered in May, 2007, and not offered a second time with the June, 2007, agreement. In such
cases, the relevant Uniform Commercial Code provision adopted under Pennsylvania law, places
the responsibility upon the buyer (Defendant Lint Tile) to make arrangements for shipping and
paying the costs of shipping. See 13 Pa.C.S.A. § 2308. As such, the granting of Plaintiff’s
motion in limine will include the introduction of evidence regarding the past negotiations,
including that Plaintiff had previously offered to “supply 500 displays at no charge.”
15
CONCLUSION
In accordance with the foregoing, Plaintiff’s MOTION IN LIMINE TO CONSTRUE
CONTRACT AS REQUIRING LINT TO PURCHASE A MINIMUM OF $2.5 MILLION
PURSUANT TO THE AGREEMENT, Doc. # 58, and PLAINTIFF’S MOTION IN LIMINE TO
EXCLUDE EVIDENCE OF TERMS OF MAY 2007 OFFER THAT DID NOT BECOME A
CONTRACT, Doc. # 62, will be granted, and PLAINTIFF’S MOTION IN LIMINE TO
PRECLUDE LINT’S VERSION OF THE AGREEMENT, Doc. # 60, will be denied provided
the original authenticated document is produced. An appropriate order follows.
McVerry, J.
16
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAUFEN INTERNATIONAL, INC.,
)
)
Plaintiff,
)
) 2:10-cv-199
v
)
)
LARRY J. LINT FLOOR & WALL COVERING, )
CO., INC.,
)
)
Defendant.
)
ORDER OF COURT
AND NOW, this 27th day of April, 2012, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that:
1.
Plaintiff’s MOTION IN LIMINE TO CONSTRUE CONTRACT AS
REQUIRING LINT TO PURCHASE A MINIMUM OF $2.5 MILLION
PURSUANT TO THE AGREEMENT, Doc. # 58, is GRANTED;
2.
PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE LINT’S VERSION
OF THE AGREEMENT, Doc. # 60, is DENIED WITHOUT
PREJUDICE; and,
3.
PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF
TERMS OF MAY 2007 OFFER THAT DID NOT BECOME A
CONTRACT, Doc. # 62, is GRANTED.
BY THE COURT:
s/ Terrence F. McVerry
United States District Court Judge
17
cc:
Dennis R. Callahan, Esquire
Email: dcallahan@dallergreenberg.com
John P. Liekar , Jr., Esquire
Email: jliekar@ymlz.com
Mark E. Ulven, Esquire
Email: mulven@hrslaw.com
18
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