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W.M. ERCANBRACK CO. v. SOL SALINS

February 14, 1994

W.M. ERCANBRACK CO., INC., Complainant,
v.
SOL SALINS, INC., Respondent.


ATTRIDGE


The opinion of the court was delivered by: PATRICK J. ATTRIDGE

MEMORANDUM OPINION

This action brought pursuant to the Perishable Agricultural Commodities Act, (PACA), 7 U.S.C. § 499a-s (1980 & 1993 Supp.), is an appeal from an order of the Secretary of Agriculture dated March 25, 1993, entering a reparation award in the amount of $ 8,434.80 with interest in favor of W.M. Ercanbrack Company, Inc. (Ercanbrack) against Sol Salins, Inc. (Salins).

 Both parties consented to proceed before a United States Magistrate Judge and an order of referral was entered by District Judge Thomas P. Jackson on September 20, 1993.

 Ercanbrack has moved for summary judgment in its favor against Salins asserting that no genuine issue of fact exists and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. Salins contends that notwithstanding the fact that the Respondent did not file a response to Ercanbrack's claim with the Secretary and as a consequence a default reparation order was entered, it is entitled to a de novo hearing in this Court at which time it may raise any defenses it has even though they were not raised at the administrative level. 7 U.S.C. § 499 (g)(c) (1980 & 1993 Supp.).

 Following a scheduling conference held in October 1993, the parties were required to complete discovery by December 6, 1993, and to supplement the pending summary judgment motion or opposition no later than December 31, 1993. No additional material was submitted.

 Background

 On or about December 3, 1992, Ercanbrack filed a complaint with the Secretary of Agriculture against Salins seeking an award of money damages. The complaint alleged that on June 27, 1992, Ercanbrack sold Salins 6 pallets each containing 99 twenty-pound boxes of U.S. No. 1 Bing cherries at an agreed upon price of $ 14.20 a box for a total sales price of $ 8,434.80 f.o.b. Oren, Utah; that the cherries were shipped that day for delivery to Salins in Washington, D.C.; that Salins received the cherries but has failed and refused to pay the agreed upon price (Ercanbrack Complaint, Record of administrative proceedings.)

 Although the Respondent was served with a copy of the complaint, Salins failed to file an answer and on March 25, 1993, a Department of Agriculture judicial officer entered a default order adopting as findings of fact the facts alleged in the complaint. The judicial officer ruled that the facts as found constituted a violation of Section 2 of the Perishable Agricultural Commodities Act (7 U.S.C. § 499b as amended) and entered a reparations order directing Salins to pay to Ercanbrack the sum of $ 8,434.80 with interest at the rate of 10% from August 1, 1992, that sum representing the amount of damages to which Ercanbrack is entitled.

 On April 14, 1993, Salins filed a timely notice of appeal from the order of the Secretary with this Court alleging that:

 1. the Secretary erred in entering a default order against it;

 2. the merchandise did not make good delivery;

 3. the complainant breached its contract and warranty to make good delivery of the merchandise; and

 4. 213 boxes of the merchandise were not salable because of the poor condition in which they were delivered.

 Ercanbrack responded with its motion for summary judgment, to which Salins filed an opposition ...


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