Cite as 24 A.D. 897 a balance of $66. Since respondent paid $96 storage on the first shipment, which it was not obligated to pay, it appears that complainant has actually been overpaid $30. However, since respondent has not requested affirmative relief, we merely conclude that respondent is not indebted to complainant in any additional amount, and the complaint filed herein should be dismissed. ORDER The complaint is hereby dismissed. Copies of this order shall be served upon the parties. (No. 9926) In re MANDELL, SPECTOR, RUDOLPH CO. PACA Dockets No. 8998 and 9303. Decided June 22, 1965. Reconsideration-Issuance and suspension of license Upon reconsideration, it is ordered that a license shall be issued to respondent effective July 6, 1965, and said license and any other license held by respondent are suspended effective July 6, 1965, for a period of 90 days. Decision by Thomas J. Flavin, Judicial Officer DECISION AND ORDER DISMISSING PETITION FOR RECONSIDERATION On May 14, 1965, a "Decision and Order" (24 A.D. 651) was issued in this proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). The respondent in PACA Docket No. 8998 was found to have violated the act as charged and the order issued prescribed that "any license" held by respondent was suspended for a period of 90 days. The applicant for a license in PACA Docket No. 9303 is the respondent in PACA Docket No. 8998 and the order also directed that a license not be issued until the expiration of a 90day period. The complainant filed a petition for reconsideration on May 20, 1965. The petition first points out that respondent's license terminated automatically on October 21, 1963, (see Finding of Fact No. 2) and that, to avoid any legal problems caused thereby, a Cite as 24 A.D. 898 license should be ordered to be issued and should also be ordered suspended if the suspension is to be the sanction ordered. The petition, however, goes on to say that revocation should be the sanction unless respondent makes restitution of about $4,176.70, less credits for certain overpayments to consignors, which is the amount shown by the Findings of Fact to constitute underpayment to shippers. After careful consideration of the petition and the reply thereto filed by respondent we conclude that the suspension ordered should be made effective. The suspension rather than revocation was ordered to maintain a measure of comparability of sanctions not only in disciplinary proceedings under the act but also under similar regulatory statutes administered by the Department. In our best judgment the suspension should stand as ordered. ORDER A license under the act shall be issued to respondent effective July 6, 1965. Said license and any other license held by respondent are suspended effective on July 6, 1965, for a period of 90 days. (No. 9927) GROWERS EXCHANGE, INC. v. NEIMAN BROS. PACA Docket No. 9568. Decided June 23, 1965. Reconsideration-New evidence-Petition dismissed As the order of May 12, 1965, is supported by the evidence and the law applicable thereto, and new evidence cannot now be considered, respondent's petition for reconsideration is dismissed. Decision by Thomas J. Flavin, Judicial Officer ORDER UPON RECONSIDERATION In this reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.), an order was issued on May 12, 1965, awarding complainant reparation against respondent in the amount of $927.74. A copy of this order was served upon respondent on May 14, 1965, and respondent requested an extension of time to file a petition for reconsideration. The time was extended to June 14, 1965, for the filing of Cite as 24 A.D. 899 such petition and a stay order was issued, staying the order of May 12, 1965, pending the issuance of a further order in this proceeding. Respondent's petition for reconsideration was filed on June 11, 1965. In his petition, respondent repeats much of the argument presented in support of his answer to the complaint. Respondent has also attached to the petition new and additional evidence in support of his position. Since this evidence was not a part of the record in the case, it cannot be considered in determining the merits of respondent's petition for reconsideration of the order of May 12, 1965. The points discussed in respondent's petition were carefully considered at the time of the issuance of the prior order herein. Upon a reconsideration of that order, we find respondent's contentions without merit. We further find that the order of May 12, 1965, is supported by the evidence of record and by the law applicable thereto. Accordingly, respondent's petition should be and hereby is dismissed, without prior service upon complainant. The stay order of May 25, 1965, is vacated, and the order of May 12, 1965, is reinstated. The reparation awarded therein shall be paid within 30 days from the date of this order. This order shall be published, and copies shall be served upon the parties. (No. 9928) WILCO PRODUCE COMPANY v. PACKER'S SUPER MARKETS, INC. PACA Docket No. 9597. Decided June 23, 1965. Suitable shipping condition-Good delivery standards-Rejection Where respondent, after rejecting shipment, unloaded part of carload of lettuce, which conformed to good delivery standards, respondent liable for fair market value, but as this value is greater than amount claimed, reparation awarded in amount claimed in complaint. Mr. Paul G. Hunter, Bureau of Service, Vegetable Growers Association, Golenbock and Barell, New York, N.Y., for respondent. Decision by Thomas J. Flavin, Judicial Officer Cite as 24 A.D. 899 PRELIMINARY STATEMENT This is a reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). A timely complaint was filed in which complainant seeks reparation against respondent in the amount of $529.01 in connection with a transaction involving a shipment of lettuce in interstate commerce. A copy of the formal complaint and a copy of the Department's report of investigation were served upon respondent, and a copy of the report of investigation was served upon complainant. Respondent filed an answer, denying liability and contending that complainant failed to deliver lettuce meeting contract requirements. Since the amount involved does not exceed $1500, the issues are submitted under the shortened procedure provided in the Rules of Practice (7 CFR 47.20). Pursuant to such procedure, complainant filed an opening statement and respondent filed an answering statement. Both parties submitted briefs. FINDINGS OF FACT 1. Complainant is a partnership composed of A. Verne Ballard, Floyd B. Perry and Ben Kellerman, Inc., doing business as Wilco Produce Company, whose address is P.O. Box 457, Blythe, California. 2. Respondent, Packer's Super Markets, Inc., is a corporation whose address is 150 52nd Street, Brooklyn, New York. At the time of the transaction involved herein, respondent was licensed under the Act. 3. On or about April 7, 1964, contemplating shipment in interstate commerce, complainant sold to respondent a carload of lettuce containing 704 cartons, "Ram" brand, 2-dozen size, at an agreed price of $1.25 per carton, plus 16¢ per carton vacuum cooling, f.o.b. shipping point, for a total invoice price of $992.64. 4. The contract was negotiated by George DePaoli Company, a broker located at Salinas, California. The broker issued a memorandum of sale and forwarded copies to the parties. 5. On April 7, 1964, complainant shipped from Blythe, California, to respondent at New York, New York, 704 cartons of lettuce in car SFRD 8118, pursuant to the contract referred to Cite as 24 A.D. 899 6. The lettuce arrived at destination on or about April 14, 1964, and a Government inspection was made at 4:15 p.m. that day. The report of that inspection showed an average of 20% grade defects, consisting of poorly trimmed and broken midribs. The condition and grade were reported as follows: "Condition: Heads or portions of heads not affected by decay or other condition defects are fresh. Wrapper leaves: no decay affecting wrapper leaves only. Head leaves: Average 1% damage by rib discoloration. Average 3% damage by reddish discoloration following bruising, scattered throughout pack. Average 1% decay. "Grade: Fails to grade U. S. No. 1, 87% hard or firm account of grade defects." 7. On April 15, 1964, respondent sent complainant a wire at 12:59 p.m., e.s.t., stating "AS RESULT OF GOVERNMENT INSPECTION WE ARE REFUSING THIS CAR." On the same date, April 15, at 2:55 p.m., p.s.t., complainant wired respondent as follows: "WE HANDLING FOR ACCOUNT WHOM MAY CONCERN AND HOLDING YOU FULLY RESPONSIBLE FOR INVOICE PRICE OF THIS CAR." 8. On April 15, 1964, at 2:15 p.m., p.s.t., complainant diverted car SFRD 8118 to Yeckes-Eichenbaum, Inc., New York City, New York. Upon being informed that this consignee was unable to handle the lettuce, complainant rediverted the car at 8:45 a.m., p.s.t., on April 16, 1964, to Vita-Wellbrock-Kearney, Inc., New York City, New York, for disposition of the lettuce. 9. Some time after complainant diverted the carload of lettuce, respondent changed its mind about rejecting the lettuce, but failed to notify complainant to that effect. Respondent then proceeded to unload 404 cartons of the lettuce before the new consignee took possession. Thereafter, Vita-Wellbrock-Kearney, Inc., unloaded 283 cartons of lettuce from the car, which it sold for proceeds of $463.63, after deducting handling charges and commission, but with no deduction for freight. This amount, together with an account sales, was remitted to complainant. Seventeen cartons of lettuce from the car were unaccounted for. Respondent has paid complainant nothing in connection with the transaction. 10. The formal complaint was filed on August 10, 1964, which was within 9 months after accrual of the cause of action herein. |