62 Agric. Dec. 309 A. And then subsequently when we started doing business with them they brought business cards saying that they were an L.L.C. And our sales manager did not want to extend credit to the L.L.C. so he told Kevin we were going to invoice the corporation. And he told me he called Ruben Castillo and informed him that if he wanted to do business with us we would be billing the corporation for any product they bought from us. Q. Do you recall what period of, what time period that Kevin Vasquez first approached you? A. It would have been early in `99, probably February or March of `99. Q. Okay. And then later on you said you were supposed, you were going to do business or it was proposed to do business with the L.L.C., Kevin Vasquez has proposed to do business with the L.L.C.? A. Yes. Yeah, they came to us and said that they have now formed an L.L.C. And that's when we told them we didn't want to do business with an L.L.C. that had no track record. Q. And why did, how long after you set up this account did Kevin Vasquez bring up the L.L.C.? A. Would have been about May or June. Q. Okay. So a couple months after the account had been set up. All right. I'm handing you what's been marked as Respondent's Exhibit Number 19. Q. Do you know what this document is? A. This is an invoice that was faxed over to us from Fresh Valley Food Service, L.L.C. for us to pack 84 boxes of 25 pound large peppers and ship them to Boys Market in Delray Beach, Florida. And we filled that order on the 24th and it's initialed by the sales manager. And that number 76287 is the invoice number where we would have invoiced the corporation. Q. So in this transaction you packed, your company packed the peppers and sent them to the ship to address of Boys Farmers? A. That's correct. Q. And how were you going to get paid for these peppers that you packed? A. We invoiced the corporation for the peppers. Q. Okay. A. And have been paid for them. Q. So you sent your invoice? A. 76287. Q. To Fresh Valley Produce? A. Yes. Q. The corporation? A. Yes. Q. And there was no dispute over this invoice was there? A. Not at all. Q. You were paid? A. We were paid. Q. Okay. Of course your company didn't get paid for some invoices; is that correct? A. That's correct. We invoiced them for about $299,000 worth of product. They paid for about 217. And there's 82,000 left to pay, approximately. 62 Agric. Dec. 309 Tr. 135-40. Petitioner correctly states Mark Bauman does not specify who "they" is in his last response in the above-quoted testimony (Appeal Pet. at 10-11). However, the record clearly establishes Mark Bauman was referring to Petitioner when he used the words "them" and "they" in his last response in the above-quoted testimony." Further, Petitioner notes Mark Bauman's testimony was not part of the record when Respondent made his January 31, 2001, determination that Petitioner was responsibly connected with Fresh Valley Food Service, LLC (Appeal Pet. at 11). I agree with Petitioner. However, I do not conclude the ALJ erred by relying on Mark Bauman's testimony because it was not part of the record when Respondent made his January 31, 2001, determination. Under the Rules of Practice, the record upon which the Chief of the PACA Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, United States Department of Agriculture, bases a responsibly connected determination is only part of the record in a proceeding to review that determination. Petitioner filed Petition for Review of Respondent's January 31, 2001, determination on March 1, 2001. A petition for review is deemed a request for hearing. Moreover, Petitioner specifically requested a hearing in the Petition for Review (Pet. for Review at 1). The Rules of Practice provides for the receipt of witness testimony at hearings." The administrative law judge's decision must be made in accordance with 5 U.S.C. § 55610 which requires that the decision be based on consideration of the whole record or those parts of the record cited by a party. Therefore, I find the ALJ did not err when she considered the testimony given by Mark Bauman at the April 24, 2002, hearing. Finally, Petitioner contends Denice & Filice Packing Co.'s institution of a "See Wiley v. Borough of Towanda, 26 F. 594, 595 (C.C.W.D. Pa. 1886) (finding, even though the word "they" was sometimes employed in an agreement, the parties were referring to a corporation). 'See 7 C.F.R. § 1.136(a). See 7 C.F.R. § 1.141(a). 'See 7 C.F.R. § 1.141(h)(1). 10 See the definition of the word decision in 7 C.F.R. § 1.132. "See 5 U.S.C. § 556(d). reparation proceeding only against Fresh Valley Food Service, LLC makes clear that Denice & Filice Packing Co. knew it contracted only with Fresh Valley Food Service, LLC and knew only Fresh Valley Food Service, LLC was liable to Denice & Filice Packing Co. for produce Denice & Filice Packing Co. sold to Fresh Valley Food Service, LLC. Petitioner contends, if Denice & Filice Packing Co. thought Petitioner was involved with or responsible for Fresh Valley Food Service, LLC, Denice & Filice Packing Co. would have instituted the reparation action against Petitioner. (Appeal Pet. at 11.) The record establishes Denice & Filice Packing Co. viewed Petitioner as related to Fresh Valley Food Service, LLC and responsible for payment for produce Denice & Filice Packing Co. sold to Fresh Valley Food Service, LLC. Mark Bauman testified that Denice & Filice Packing Co. viewed Petitioner responsible for paying for produce that Denice & Filice Packing Co. sold to Fresh Valley Food Service, LLC and that in hindsight, Denice & Filice Packing Co. probably should have instituted the reparation action against both Petitioner and Fresh Valley Food Service, LLC (Tr. 135-41). Denice & Felice Packing Co. sent Petitioner a written demand for payment for produce sold to Fresh Valley Food Service, LLC sometime prior to February 3, 2000 (RX 10). When Petitioner refused to pay, Denice & Filice Packing Co. responded with a letter dated February 8, 2000, from its attorney again demanding payment from Petitioner (RX 11). Finally, in a letter dated February 9, 2000, Denice & Filice Packing Co. requested that the PACA Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, United States Department of Agriculture, request Petitioner "and/or" Fresh Valley Food Service, LLC make full payment to Denice & Filice Packing Co. (RX 12). For the foregoing reasons, the following Order should be issued. ORDER I affirm Respondent's January 31, 2001, determination that Petitioner was responsibly connected with Fresh Valley Food Service, LLC during the period of time that Fresh Valley Food Service, LLC violated the PACA. Accordingly, Petitioner is subject to the licensing restrictions under section 4(b) of the PACA and the employment restrictions under section 8(b) of the PACA (7 U.S.C. §§ 499d(b), 499h(b)). This Order shall become effective 60 days after service of this Order on Petitioner. 62 Agric. Dec. 331 PERISHABLE AGRICULTURAL COMMODITIES ACT REPARATION DECISIONS THOMAS PRODUCE COMPANY v. LANGE TRADING COMPANY, INC. PACA Docket No. R-02-120. Decision and Order. Filed January 30, 2003. PACA - Contracts - Novation. Where Respondent buyer was concluded to have accepted a load of tomatoes because it failed to prove that it gave notice of rejection within the time required in the Regulations, but did convey its complaint about the load to Complainant's seller, and its opinion that the load could bring more money if sold elsewhere, Complainant's repossession of the load with Respondent's permission did not constitute a novation of, or recision of, the contract, and Complainant was deemed to have acted as Respondent's agent in reselling the tomatoes. Inspection of the tomatoes at Complainant's request after the repossession shoed that the tomatoes made good delivery, and Respondent was liable for the contract price, less the amount realized on resale. Mike D. Bess, for Complainant. Respondent is Pro Se. Patricia Harps, Presiding Officer. Decision and Order issued by William G. Jenson, Judicial Officer. Preliminary Statement This is a reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. § 499a et seq.), hereinafter referred to as the Act. A timely complaint was filed with the Department within nine months of the accrual of the cause of action, in which Complainant seeks a reparation award against Respondent in the amount of $10,039.50 in connection with one trucklot of tomatoes shipped in the course of interstate commerce. Copies of the Report of Investigation prepared by the Department were served upon the parties. A copy of the formal complaint was served upon the Respondent, which filed an answer thereto, denying liability to Complainant. The amount claimed in the formal complaint does not exceed $30,000.00. Therefore, the documentary procedure provided in section 47.20 of the Rules of Practice (7 C.F.R. § 47.20) is applicable. Pursuant to this procedure, the verified pleadings of the parties are considered part of the evidence of the case, as is the Department's Report of Investigation. In addition, the parties were |