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ROTHENBERG v. AERO MAYFLOWER TRANSIT CO.

March 10, 1980

STEVEN ROTHENBERG, Plaintiff,
v.
AERO MAYFLOWER TRANSIT CO., INC., Defendant.


Oberdorfer


The opinion of the court was delivered by: LOUIS F. OBERDORFER

MEMORANDUM AND ORDER

I

 A.

 On July 15, 1977, Richard Burin, the employee of Olsen Brothers, Inc., who had executed the order for service with plaintiff on behalf of Olsen Brothers and the defendant, Aero Mayflower, telephoned plaintiff's home and spoke with plaintiff's wife, stating that defendant would not be able to pick up plaintiff's shipment during the agreed period and that plaintiff should make alternate arrangements for his move. Later that same day, plaintiff telephoned Olsen Brothers and, unable to speak with Mr. Burin, left a message that he still wanted his shipment picked up between July 28 and July 30. On the following day, Olsen Brothers mailed plaintiff a letter notifying him that defendant would be unable to transport his shipment within the agreed dates set forth in the May 27, 1977, order for service.

 On July 18, 1977, plaintiff telephoned Olsen Brothers and spoke with Mr. Burin. In response to plaintiff's question as to when plaintiff's shipment could be moved, Mr. Burin stated that defendant could no longer guarantee pickup before August 30, 1977. On or about July 19, 1977, plaintiff notified Mr. Burin by telephone that plaintiff had made alternate arrangements for the shipment of his household goods, and that he was cancelling his order for service. Plaintiff confirmed this by a letter dated July 25, 1977, and addressed to Olsen Brothers.

 Plaintiff was able to contract with another common carrier to have his goods picked up during the period in which defendant had agreed to pick them up, and to have them delivered between July 29 and August 11, 1977. Plaintiff's goods were in fact delivered on August 8, 1977, three days after the time in which defendant had agreed to deliver them. Plaintiff reported for work at his new job on August 10, 1977, rather than on August 8, the date he was originally scheduled to begin. Plaintiff alleges damages of $ 70.60 incurred in his efforts to make substitute arrangements for the shipment of his goods, including compensation for his time for the day that he was taken away from his studies for the bar examination. Plaintiff also alleges damages of $ 5,759.20 incurred as a consequence of the late delivery of his goods, including compensation for living without furniture or other personal possessions for the three days between August 5 and 8 compensation for time he spent waiting for his goods, and compensation for "embarrassment" he suffered at work as a result of reporting late. In addition, plaintiff seeks punitive damages of $ 50,000.

 B.

 Orders for service are customarily executed by defendant through an agent and transmitted by telephone by a service representative of the agent to an employee of defendant. The defendant's employee records the order and transfers the record to the "traffic planner responsible for the region in which the shipment is to be picked up. The traffic planner reviews incoming orders for service and, if "reasonably certain" that defendant can handle the order, see Affidavit of Patsy R. Freeman, filed August 13, 1979, at P16, "accepts" the order and notifies the agent. In this case, plaintiff's order for service was "accepted" by the defendant's traffic planner on June 1, 1977.

 On August 15 and September 6, 1979, defendant filed numerous "amendments" to its answers to interrogatories and responses to requests for admission. On September 15 defendant filed a motion for leave to file amendments to its responses to requests for admission; it has taken the position, however, that leave of court is not required for the filing of amendments to answers to interrogatories. Plaintiff has moved to strike defendant's amendments and for a finding of contempt.

 II

 Plaintiff has moved for a summary judgment that defendant is liable for breach of contract and for fraudulent misrepresentation, and for judgment with respect to his common law claims of discrimination. Defendant has moved for summary judgment on the fraudulent misrepresentation claims and on the issues of whether plaintiff may obtain punitive damages, damages for "embarassment," and damages for injuries Sustained by his wife, who has not yet been joined as a party. Defendant's recent motion for judgment clarifies its earlier motion for summary judgment and encompasses all claims of fraudulent misrepresentation that might be within fair intendment of the complaint.

 For reasons stated more fully below, the Court has concluded that plaintiff is entitled to a summary judgment that defendant is liable for breach of contract, but that defendant is entitled to summary judgment on the claims of fraudulent misrepresentation, including the demand for punitive damages. The Court has also concluded that defendant's motion for summary judgment on the issue of damages for "embarrassment" should be granted to the extent plaintiff seeks to recover for mental anguish or suffering, but denied to the extent he alleges injury to his reputation and interference with his contractual relationship with his employer. With respect to injuries allegedly sustained by plaintiff's wife, plaintiff has not yet moved to join his wife, despite one motion to amend, and has apparently abandoned any intent to do so. See Plaintiff's Pretrial Brief; Transcript of Proceedings of February 25, 1980. In any event, any such motion at this point would be untimely. Accordingly, defendant's motion for summary judgment as to damages sustained by plaintiff's wife will be granted. With respect to plaintiff's claims of common law discrimination, the Court ...


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