Petition for Writ of Certiorari — Atlas Van Lines, Inc. v. Lewis (No. 08-901)

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OFFICE JF THE CLERK

In The

Supreme Court of the Anited States

2

ATLAS VAN LINES, INC.,

Petitioners,

RICHARD J. LEWIS AND PATRICIA L. LEWIS,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

@

JAMES A. WESCOE

RAWLE & HENDERSON

The Widener Building

One South Penn Square

Philadelphia, PA 19107

(215) 575-4200

Counsel for Petitioners

(OOK LAW RRIEP PRINTING ©) (S001 229-6964

OK CALL COLLECT 12) 542-2831

QUESTION PRESENTED FOR REVIEW

Did the United States Court of Appeals for the

Third Circuit err in ruling that the respondents’

October 26, 2004 letter to Atlas Van Lines, Inc., an

interstate motor carrier, in which respondents failed

to assert any dollar amount or estimated dollar

amount or range of dollar amounts for their damages,

nonetheless satisfied the federal claim-filing re-

quirements of 49 U.S.C. §14706 and 49 C.F.R.

§ 370.3(d)(3), and, as a consequence, undermine the

intent and purpose of the Carmack Amendment by

establishing a new, third standard for determining

the sufficiency of interstate cargo claims that further

defeats and contradicts the goal of uniform and cost-

effective claim settlement practices for shippers and

carriers throughout the United States?

i

PARTIES TO THE PROCEEDINGS

Pursuant to Supreme Court Rule 14.1, petitioner

states that all parties to the proceedings in the court

whose judgment is sought to be reviewed are listed in

the caption.

RULE 29.6 STATEMENT

The parent company of petitioner Atlas Van

Lines, Inc. is Atlas World Group, Inc., which is not a

public company. No publicly held company owns more

than 10% of petitioner’s stock.

ili

TABLE OF CONTENTS

Page

Question Presented for Review .......................0068 1

SMPLION CO CMO PLOCROGIIAGN 6..co. oececccsisevizcncasdacsveavess i

De re OG niss ssccge cede sens nessacesvapeencineasenes ii

IIE stein sec itrantncs sorcarriiectcesaeean Vv

IS PMI osu ieinve-cknssueTcnpsavepinieszenemeabbesbriaees 1

IIE 65 dass soxietcenindiekbutcvacensicanemeanadenaoeke 2

Statutes and Regulations Involved ..................... 2

BIA MOAt Of MS CANS ..0..cccscccssrccciscsesccscscvansseseces 3

Reasons Why the Writ for Certiorari Should Be

IE sinssccsnticis eccxascismmnesssen dats eel 10

Io Siitihiisinkelcctisacaveeeans saan 32

Appendix

Opinion of the United States Court of Appeals

for the Third Circuit dated September 9,

2008 vacating the Order of the District Court

and remanding for further proceedings con-

membernt WICH CHO COPIOP 5.5 .ccccscnsasscenccscressnssossenes App. 1

Opinion of the United States District Court for

the Middle District of Pennsylvania, dated

EM DO OE iNisxnicinisnstiicinurcetinvsakeseliebsbleess App. 23

Opinion of the United States Court of Appeals

for the Third Circuit dated October 9, 2008

denying the Petition for Rehearing and/or

PCO TE THY eiincstiessisceiciiocnsecdcaverteacoueee App. 38

Statutes and Regulations Involved................... App. 40

Complaint with Attached Exhibits ................... App. 50

TABLE OF CONTENTS — Continued

Page

I ii el catiedixvaterincessievindaaviareeulens App. 87

COOCOROE BS, BOE Lt oe ccsicceccssscccsccssevsseccesees App. 123

November 4, 2004 Letter.................cceeeese eens App. 126

November §, 2005 Latter. ...........00.0..cccssshroceesses App. 128

TABLE OF AUTHORITIES

Page

CASES

Adams Express Co. v. Croninger, 226 U.S. 491

= ES SE AAO teeter PEED OR Pe SEMIS 12, 13, 14

Atchinson T:. & S.F. Ry. v. Harold, 241 U.S. 371

SERIA ee ROR RB eo SCE deere RO ey Ieee 14

Charleston & Western Carolina Ry. Co. v.

Varnville Furniture Co., 237 U.S. 597 (1915)......... 14

Cleveland v. Beltman North American Van

Lines Co., Inc., 30 F.3d 379 (2d Cir. 1994) ............. 15

Coughlin v. United Van Lines, LLC, 362

¥. Supp. 2d 1166 (C.D. Cal. BO0S)...cccccccsccccsccssccseecs 15

Culver v. Boat Transit, Inc., 782 F.2d 1467 (9th

Rn CAIN «bc cac'a 3 sicshcaabavasdad (ea doaadasaaeacedsthnbstabetanaeiakesee 21

Ford Moior Co. v. Transport Indem. Co., 795

Be OO CO CAE, WG on ovcvincvcniciescsivicescccssosvesescovens 17

Fulton v. Chicago, Rock Island & P.R. Co., 481

Brae Ge I RNS. BIFFY Spas ccc cee Rckce hecticicgssceanncndons 15

Georgia, Florida & Alabama Ry. Co. v. Blish

Milling Co., 241 U.S. 190 (1916)......... ieieuccrxat 13, 14

Hoskins v. Bekins Van Lines, 343 F.3d 769 (5th

RN NEY 9234 chiemcsicdacsgs cadakecacidsstemunteicen take ae ta daokinanes 15

Hughes v. United Van Lines, 829 F.2d 1407 (7th

es EO a cviddstestasienticssastideeitoNana serie reuedeviadi esa 16

Hughes Aircraft v. North American Van Lines,

970 F.2d 609 (9th Cir. 1992)

TABLE OF AUTHORITIES — Continued

Page

Ins. Co. of N. Am. v. G.I. Trucking Co., 1 F.3d

903 (9th Cir. 1993), cert. denied, 510 U.S.

tie iso csdusetiatcnaapinedcdigniepeshssbanleikeshvas neste: 21

Intech, Inc. v. Consolidated Freightways, Inc..,

ee Be SI CEBE CAG, LOGT) vcccscsessesscscesscesssecesscescees 15

Kvaerner E&C Metals v. Yellow Freight Sys.,

Inc., 180 Fed.Appx. 172 (9th Cir. 20085) ................. 21

Louisville & Nashville R. Co. v. Rice, 247 U.S.

NE rns cos Saco tanassncgvereseuardsbseausuvadsedsndqueheieasses 14

McLaughlin Transportation Systems, Inc. v.

Rubinstein, 2005 U.S. District LEXIS 19932

IN I oreo dg sce colnsiecadaceusnchvaceveaiaes oineuarks sea 22

Missouri Pacific Ry. Co. v. Elmore & Stahl, 375

AN I 0 as cied iva 25 didn iaadsus nave veaeaeherecsdasaian 15

Moffit v. Bekins Van Lines Co, 6 F.3d 305 (5th

als te tone siauecs gobaguauiaelceniauneainasins 15

Myrick v. Michigan Central R.R., 107 U.S. 102

SNE Pasta cet thd csacse dei duacdicaeyeeedansiane Giacsbaiasaciarsbin’ 14

Nedlloyd Lines B.V. Corp. v. Harris Transport

Co., 922 F.2d 905 (ist Cir, 1991)...............ccsc0es. 22, 26

New York, N.H. & H.R. Co. v. Nothnagle, 346

ee <n es cnsls co pkuenespcaviuesehduveaenasesesoendenes 14

New York, New Haven & Hartford Railroad Co.

v. Nothne zle, 346 U.S. 128, 73 S.Ct. 986

EN Fee oe a ocad ata Weeki aden auaseaGaveuers ai

Paper Magic Group v. J.B. Hunt Transport, 318

eee Ue COE GEE, IIR os ceveckscndescvcaccoccnconsenncevesesechs 15

Vii

TABLE OF AUTHORITIES — Continued

Page

Pathway Bellows, Inc. v. Blanchette, 630 F.2d

900 (2d Cir. 1980), cert. denied, 450 U.S. 915

CE or er anise haces is aetiekiceccdipeeinediolaaioveen 17, 22, 26

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

SI Tididuithesdiciadnrcathenkusateses tent deeuninisodissuaieamiedsacgsdiais 14

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

CRT aii: cincideladscisiateesdencddacsncesekcelesns mbes cauntaudonareaiiacsns 32

Rint v. United Van Lines, Inc., 104 F.3d 502,

cert. denied, 118 S.Ct. 51, 522 U.S. 809, 139

EE IEEE isto wan qd sronaiiacapenccuenaase dav anediewasarneaiaeietuas 28

Salztein v. Bekins Van Lines, Inc., 993 F.2d

Bee AGRE ae, RI inv cn vice co cisncivicennavncaunveredrsvieces 22, 26

Seimens Power Transmission & Distribution, Inc.

v. Norfolk Southern Railway Company, 420

F.3d 1243 (Lith Cir. 2008).................0.ceccee0. 22, 26, 28

S&H Hardware Supply Co. v. Yellow Transp.,

Inc., 432 F.34: 560 (Sd Cir. ZOOS)..........ccscccccscesesscess 23

Shao v. Link Cargo (Taiwan) Limited, 986 F.2d

Re I aris OED ah scat cs canna cise naseedencsessuaaeaieaesievannss 15

Smith v. United Parcel Service, 296 F.3d 1244

ee IS IE ixicccas-senciudshivccs vdvdnnsacanavcacbaaeindeatuns 15, 16

Suarez v. United Van Lines, Inc., 791 F. Supp.

ee eee IS 2, 2, <c., pca sh eed svccensvannsr ub mease tool 28

Taisho Marine & Fire Ins. Co. v. Vessel

Gladiolus, 762 F.2d 1364 (9th Cir. 1985) ............... 22

Taylor v. Mayflower Transit, Inc., 161 F. Supp. 2d

Se We re Ng cat ac sy ac tac cans ocueuen uauks is eectenneasaes 3

Vill

TABLE OF AUTHORITIES — Continued

Page

Thurston Motor Lines, Inc. v. Jordan K. Rand,

Bs, Ee Ee OE FAO) cntncrerccnsncoccrsicsaincessresscessess 14

Trepel v. Roadway Express, Inc., 194 F.3d 708

SAM IE odds icse acct hd vehindashvipabeunndsdivceiabisnensosvuds 22

Underwriters at Lloyds of London v. North

American Van Lines, 890 F.2d 111 (10th Cir.

a cvs oe hous eeeaktsdenieduncssayesasiauthapod cevankcknxtess 16

W.D. Lawson & Company v. Penn Central

Company, 456 F.2d 419 (6th Cir. 1972).................. 16

STATUTES

I Os du boadin on badenedne kebeuene 2

Se I: ON PIII cn waa conidia debut snunncasevenisnevsacdianmnedinonensbasel 7

aE RE OI ons tices Gabush dedtunddusiensounsssaddedueumeneh 7

Se I a ca. bes cacubsaecesscick’asawavessouasanssnceseel

es Oe I ities i vty ks dannchecssectnswictedawwgnivees 2, 12

FS BO ne nna vcecaccnvenstevescvnvzexssnsvececs 17, 29

RULES

United States Supreme Court Rule 10(a)............31, 32

oes hoa ay San anne aa puny aides Aduaconeen 18

i ee I coins conc pan cis ullndrossiientelacanceoesssuiveds 2,5

ME BTR) ei csescstvesscccdccncecccntscscscecessccsnsess 18, 29

BEEF Be. FST vis eveccsccrccccsvcvcaivsssrcene 7, 20, 23, 25, 29

ix

TABLE OF AUTHORITIES — Continued

Page

49 C.F. © ai iisccseseccvesesvees passim

4D C.F BR. BB eae eit a dikcbacinccsscecceseccecc sees. 28

OTHER AUTHORITIES

Ex Parte No. 263: Rules, Regulations, and

Practices of Regulated Carriers with Respect

to the Processing of Loss and Damage

Claimrp, S40 LG Gee ita tecrecsercccsccssccscocccesees 28

Sorkin, Goods in Transit - Selected Regula-

tions, Statutes and Treaties, Vol. 2, § 7.09[3]......... 23

1

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice and the

Associate Justices of the Supreme Court of the

United States:

Petitioner Atlas Van Lines, Inc. respectfully

prays that a Writ of Certiorari issue to review the

judgment of the United States Court of Appeals for

the Third Circuit entered on September 9, 2008,

rehearing denied on October 9, 2008, which vacated

the May 30, 2007 judgment and opinion of the United

States District Court for the Middle District of Penn-

sylvania, wherein the Court dismissed plaintiffs’

Complaint pursuant to Federal Rule of Civil Proce-

dure 12(b)(6) and remanded the case to the District

Court for further proceedings and, in support thereof,

represents as follows.

OPINIONS BELOW

By Order and Opinion dated May 30, 2007, the

United States District Court for the Middle District

of Pennsylvania dismissed respondents’ Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6).

The District Court’s ruling is reported at 2007 WL

1576452 (M.D. Pa. May 30, 2007). Respondents filed a

timely appeal to the United States Court of Appeals

for the Third Circuit, and the Precedential Opinion

was issued on September 9, 2008. The Precedential

Opinion is reported at 542 F.3d 403 (3d Cir. 2008).

The District Court ruling and the ruling of the United

2

States Court of Appeals for the Third Circuit are

reproduced in the Appendix hereto, at App. 1 and

App. 23, respectively. The judgment of the United

States Court of Appeals for the Third Circuit denying

the Petition for Rehearing is also reproduced in the

Appendix hereto. (App. 21).

+

JURISDICTION

The Order and Precedential Opinion of the

United States Court of Appeals for the Third Circuit

was entered on September 9, 2008. The Petition for

Rehearing and/or Rehearing En Banc was denied on

October 9, 2008. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

«

STATUTES AND REGULATIONS INVOLVED

The Carmack Amendment to the Interstate

Commerce Commission Termination Act of 1995, 49

U.S.C. § 14706; and,

Part 370.3 of Title 49 of the United States Code,

at 49 C.F.R. § 370.3, specifically 49 C.F.R. § 370.3(b 3).

The pertinent texts of the foregoing statute and

regulation are set forth in the Appendix pursuant to

Rule 14(f), at App. 40 and App. 46, respectively.

.

3

STATEMENT OF THE CASE

Respondents are now residents of Alpine, New

York. (App. 50). Petitioner Atlas Van Lines, Inc.

(“Atlas”) is an interstate motor carrier that transports

household goods in interstate commerce, with its

principal place of business in Evansville, Indiana.

(App. 50).

Respondents entered into a contract to sell their

Pennsylvania residence to a non-party purchaser on

or before August 27, 2004. (App. 51). The sales con-

tract required respondents to supply a vacant house

to the non-party purchasers at the time of closing.

(App. 52).

Respondents contracted with Atlas to pack, load

and transport their household goods from their old

residence in Pennsylvania to their new residence in

New York. (See Bili of Lading at App. 52). Pursuant to

the Bill of Lading, Atlas, through its disclosed agent,

Warner’s Moving & Storage, packed, loaded and

transported respondents’ household goods on, during

and between August 23, 2007 and September 3, 2004.

' At all times material hereto, Warner’s Moving & Storage

was a disclosed houschold goods agent for defendant/petitioner

Atlas Van Lines, Inc. Therefore, pursuant to 49 U.S.C. § 13907,

which states that only the motor carrier can be held liable for

damages arising from interstate shipment, Atlas Van Lines, Inc.

is the sole proper defendant/petitioner in this case. See, ey.,

Taylor v. Mayflower Transit, Inc., 161 F. Supp. 2d 651, 658

(W.D.N.C. 2000).

4

In preparation for the move, Atlas confirmed that

respondents’ goods would be packed on August 23,

2004 and August 24, 2004 and loaded onto delivery

trucks on August 25, 2004 and August 26, 2004. (App.

52). However, for reasons not relevant to the instant

analysis, Atlas did not complete the loading process

before the August 27, 2004 settlement date on the

Pennsylvania residence. Allegedly, as an unforeseen

consequence of this slight delay, the sale of the resi-

dence did not occur. However, the respondents’ goods

were ultimately loaded and were delivered on Sep-

tember 3, 2004. The Bill of Lading provided that “asa

condition precedent to recovery, a claim for any

damage ... or delay, must be filed within nine

months after delivery. .. . (App. 96).

The following month, on October 26, 2004, re-

spondents’ attorney sent a letter to Atlas, wherein he

advised Atlas that his clients intended to pursue a

claim based on Atlas’ actions in failure to remove all

of the goods from the respondents’ Pennsylvania

home by August 27, 2004.°

* Although not averred in the Complaint, it is believed and

therefore averred by petitioner herein that the sale of respon-

dents’ Pennsylvania residence had nothing to do with the failure

of the Lewises to provide a vacant property on August 27, 2004.

Rather, the prospective buyers reneged on the sale contract

because they learned prior to the closing date that they would

not be able to home school their young children in the Common-

wealth of Pennsylvania as they had done at their prior home.

5

Specifically, the October 26, 2004 letter to Atlas

stated:

As a result of your failure to perform your

contractual obligation, Mr. and Mrs. Lewis

were unable to meet the terms of the sale of

their house, closing of which was scheduled

at 4:00 p.m. on August 27, 2004. Since they

were not able to close, they lost that sale and

have not been able to resell their house.

(App. 123). Further, respondents’ attorney stated in

his October 26, 2004 letter:

Mr. and Mrs. Lewis’ losses include, but are

not limited to, loss of profit on the sale of

their residence, additional mortgage pay-

ments that Mr. and Mrs. Lewis have had to

pay on two mortgages on their Pennsylvania

residence which otherwise would have been

paid off at closing, and various other miscel-

laneous expenses they would not have oth-

erwise incurred.

(App. 124). There was no dollar amount included

in this letter and neither respondents nor their

attorney attached additional information, documenta-

tion, receipts or invoices to the October 26, 2004

letter from which Atlas could have ascertained or

determined the amount of their alleged damages or

even a reasonable approximation thereof. Atlas did

not treat the respondents’ October 26, 2004 letter as a

claim under the regulations applicable to claims for

loss, damage or delay made against interstate motor

carriers found in 49 C.F.R. § 370.3 as the letter did

6

not make a “claim for the payment of a specified or

determinable amount of money... .”

On November 4, 2004, Atlas sent a letter to the

Lewises’ attorney, wherein it acknowledged the

October 26, 2004 letter and requested additional

information and documentation. (App. 126). Despite

the request for additional information contained in

the November 4, 2004 correspondence, neither re-

spondents nor their attorney provided Atlas with

additional information regarding the amount of their

alleged claims until November 9, 2005, which was

well beyond the nine-month claim-filing deadline.

(App. 128).

Atlas delivered respondents’ household goods on

September 3, 2004. Thus, the nine-month deadline for

filing a proper claim was June 3, 2005. Respondents

signed an Agreement of Sale for their Pennsylvania

home to new purchasers on March 14, 2005, which

was well within the nine-month claim-filing period.

The Agreement of Sale contained the new sale price

for the Pennsylvania residence and the date on which

the transfer would occur (June 3, 2005). Thus, re-

spondents were able to ascertain the exact amount of

their alleged damages on or before March 14, 2005.

Moreover, as noted, the closing date for the subse-

quent sale of respondents’ Pennsylvania residence

was June 3, 2005. (App. 131). This date also fell

within the nine-month claim-filing period. Thus, by

June 3, 2005, respondents knew, or should have

known, the exact amount of damages allegedly

caused by the delayed pick up of their goods. The

7

information provided to Atlas on November 9, 2005

confirms that the respondents were clearly capable of

determining — and indeed did determine — the exact

amount of their alleged loss arising from the delayed

sale of their Pennsylvania residence during the nine-

month claim-filing period. (App. 135).

Atlas rejected the November 9, 2005 letter in

accordance with the claim-filing provisions of the

subject Bill of Lading, which stated that claims

arising from the transportation of respondents’

household goods must be filed within nine months of

delivery, and in accordance with 4S C.F.R. § 370.3(b),

which requires that notice of a claim to a carrier must

be filed within the time limits specified in the Bill of

Lading.

Respondents subsequently commenced a timely

civil lawsuit against petitioner in the Court of Com-

mon Pleas for York County, Pennsylvania [Civil

Action Number 06-SU-2696-401] on August 23, 2006.

(App. 50). Petitioner removed the case to the United

States District Court for the Middle District of Penn-

syivania. Exclusive federal jurisdiction over this

controversy, and petitioner’s removal thereof, was

based on 28 U.S.C. § 1331 and 28 U.S.C. § 14706

because the claims alleged by respondents against

petitioner originate from the transportation of goods in

interstate commerce, and Atlas is an interstate carrier

for hire, regulated in part under 28 U.S.C. § 14706.

(App. 23).

On October 10, 2006, Atlas filed a Motion to

Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), wherein it

8

contended that respondents’ failure to provide it with

a specific or determinable claim for damages as

required by 49 C.F.R. § 370.3(b)\3) precluded their

lawsuit. On January 30, 2007, United States District

Judge John E. Jones, III erroneously’ concluded that

the Carmack Amendment did not apply to the instant

case and, as a result, refused to consider whether

respondents’ notice was timely or sufficient. (App. 23-

24). Petitioner filed a Motion for Reconsideration,

wherein it contended that the District Court’s ruling

regarding application of the Carmack Amendment

was a clear error of law for which reconsideration was

warranted. (App. 24). On May 30, 2007, in response

to petitioner’s Motion for Reconsideration and the

respondents’ response thereto (App. 24), Judge Jones

issued a Memorandum and Order granting peti-

tioner’s Motion for Reconsideration. (App. 23). In

addition to ruling that the Carmack Amendment did,

indeed, apply to this controversy, Judge Jones deter-

mined that respondents failed to provide proper

notice of their alleged loss to Atlas and, consequently,

dismissed their case. (App. 37).

Respondents filed a timely Appeal of Judge

Jones’s May 30, 2007 Memorandum and Order on

September 24, 2007. Oral argument took place on

June 3, 2008 before United States Circuit Judges

* Judge Jones acknowledged that the Court committed a

“clear error of law in holding that the Carmack Amendment did

not apply to the instant controversy ...” at Page 10 of his May

30, 2007 Memorandum.

9

Fisher and Jordan, and United States District Court

Judge Yohn, sitting in designation.

On September 9, 2008, a panel of the United

States Court of Appeals for the Third Circuit issued a

Precedential Opinion, wherein it ruled that respon-

dents’ October 26, 2004 letter provided Atlas with

sufficient notice of their claim. The panel found that

the District Court’s ruling to the contrary was in

error, vacated the May 30, 2007 Order dismissing

respondents’ Complaint, and remanded the case to

the District Court for further proceedings. Specifi-

cally, the panel found that the October 26, 2004 letter

satisfied the claim-filing requirements of 49 C.F.R.

§ 370.3(b)(3) because it provided Atlas with notice of a

claim for a “specific or determinable amount of

money.” (App. 14). The panel differentiated between

“specific” and “determinable” as found in 49 C.F.R.

§ 370.3(b)\3) and found that notice of a claim is “de-

terminable” when it meets the following criteria:

A claim for a “determinable amount of

money” need not explicitly state the dollar

amount claimed. Instead, a claim is “deter-

minable” if the amount of money claimed is

merely “[caplable of being determined or as-

certained.” (App. 14).

The panel further distinguished and defined a

“determinable” claim as one that:

. need not include any dollar amount at

all. Instead, all that is required is that the

claim provide enough information to make it

possible to assign a dollar amount to the

10

claim at some point after the claim itself is

filed. (App. 14).

The panel therefore rejected Atlas’s argument

that a claim “must include some dollar amount” in

order to satisfy 49 C.F.R. § 370.3(b)(3). Petitioner filed

a timely Petition for Rehearing and/or Rehearing En

Banc, which was denied on October 9, 2008. This

timely Petition follows.

e

REASON WHY THE WRIT FOR

CERTIORARI SHOULD BE GRANTED

I THE DECISION BELOW CREATS A THIRD

STANDARD FOR DETERMINING THE SUF-

FICIENCY OF AN INTERSTATE CARGO

CLAIM UNDER 49 C.E.R. § 370.3(b)(3), AND

FURTHER CONTRADICTS AND UNDER-

MINES THE PURPOSE AND INTENT OF

CONGRESS IN ENACTING THE CARMACK

AMENDMENT AND STANDS IN DIRECT

OPPOSITION TO THE RULINGS OF THE

UNITED STATES SUPREME COURT WITH

RESPECT TO THE PRIMACY AND UNI-

FORMITY OF THE CARMACK AMEND-

MENT.

A. Introduction

In ruling that a shipper need not provide the

carrier with any dollar amount whatsoever, even an

estimate or range of potential damages, in order to

satisfy the provisions of 49 C.F.R. § 370(b)(3), the

11

panel below placed the last straw on the camel’s back

with respect to undermining the purpose and goal of

Congress and the United States Supreme Court in

establishing and maintaining a uniform, consistent

and predictable regime for the efficient resolution of

interstate cargo claims. The ruling below creates

serious, wide-ranging and potentially devastating

consequences for carriers and shippers alike, as it

creates a new, third standard for resolving interstate

cargo claims that will ultimately prevent the settle-

ment of claims without litigation. The panel has, in

effect, made a bad situation worse for shippers and

carriers and has presented this Honorable Court with

an opportunity to restore order, uniformity and

efficiency to this critical area of federal transporta-

tion law.

B. Purpose and Goal of the Carmack

Amendment

The Carmack Amendment is the key element in

the comprehensive scheme to bring uniformity to the

area of interstate cargo claim management. Congress

enacted the Carmack Amendment to the Interstate

Commerce Act in 1906, in response to the chaotic

disparity that resulted from the application of vary-

ing state laws to interstate shipping.” The Carmack

“The ICC Termination Act of 1995 contains separate

Carmack Amendment Provisions for rail carriers, motor carmers

and freight forwarders. Each of these provisions contains a

provision concerning notice of claim and they are all identical.

‘Continued on following page)

12

Amendment defined the parameters of carrier liabil-

ity for loss and damage to goods transported under

interstate bills of lading, bringing uniform treatment

to the carrier-shipper relationship. The Amendment,

set forth at 49 U.S.C. § 14706, states in relevant part:

A carrier providing transportation or service

. shall issue a receipt or bill of lading for

property it receives for transportation under

this part. That carrier... is liable to the per-

son entitled to recover under the receipt or

bill of lading. The liability imposed under

this paragraph is for the actual loss or injury

to the property. ...

Within a few years of the Carmack Amendment’s

passage, the United States Supreme Court addressed

its dual goals of uniformity and preemptive scope. In

the seminal case of Adams Express Co. v. Croninger,

226 U.S. 491, 505 (1913), the United States Supreme

Court discussed Carmack preemption over state law

theories of recovery in the broadest terms:

Almost every detail of the subject [interstate

carrier liability] is covered so completely that

there can be no rational doubt that Congress

intended to take possession of the subject,

As to rail carmers, motor carriers, and freight forwarders, they

remain the same as in the prior versions of the Carmack

Amendment. Each states that the carrier may not provide by

rule, contract or otherwise a period of less than nine months for

filing a claim against it. For purposes of the discussion herein,

the Carmack Amendment ts discussed as found in the ICC

Termination Act of 1995.

13

and supersede all state regulation with ref-

erence to it.

Id. at 505-506. Adams Express held that claims

arising out of loss or damage to property transported

in interstate commerce are governed by the Carmack

Amendment and that all state law claims are pre-

empted. The Court explained the primary objective of

the statute is the establishment of a uniform national

policy governing liability of interstate carriers.

This branch of interstate commerce was be-

ing subjected to such a diversity of legislative

and judicial holding that it was practically

impossible for a carrier engaged in a busi-

ness that extended beyond the confines of his

own state, or a carrier whose lines were

extensive, to know, without considerable in-

vestigation and trouble, and even then often-

times with but little certainty, what would be

the carrier’s actual responsibility as to the

goods delivered to it for transportation from

one state to another. The congressional ac-

tion has made an end to this diversity.

Id. at 505.

Three years later, the United States Supreme

Court reaffirmed Adams Express in Georgia, Florida

& Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190

(1916). In Blish Milling, the United States Supreme

Court ruled that the Carmack Amendment is “com-

prehensive enough to embrace responsibility for all

loss resulting from failure to discharge a carrier's

14

duty as to any part of the agreed transportation....”

241 U.S. at 196.

Each succeeding Supreme Court ruling interpret-

ing the scope of the Carmack Amendment has re-

peated the principles enunciated in Adams Express

and Blish Milling, which was the comprehensiveness

of application and uniformity of treatment regardless

of state laws. See, e.g., Thurston Motor Lines, Inc. v.

Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983),

quoting Louisville & Nashville R. Co. v. Rice, 247 U.S.

201, 203 (1918) (“As to interstate shipments, ... the

parties are held to the responsibilities imposed by the

federal law, to the exclusion of all other rules of

obligation.”); New York, N.H. & H.R. Co. v. Nothnagle,

346 U.S. 128, 131 (1953); Charleston & Western

Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S.

597 (1915) (holding that preemption applies not only

to state law claims which directly contradict the

procedures or remedies set forth in the Carmack

Amendment, but also encompasses state causes of

action which supplement Carmack relief); Atchinson

T. & SF. Ry. v. Harold, 241 U.S. 371, 378 (1916).

Indeed, as tne following cases clearly establish, it

is settled federal law that the remedies provided

under the Carmack Amendment preempt all causes of

action secking redress for loss or damage to goods

moving through interstate commerce, whether those

remedies are predicated on state common law, state

statutory law or federal common law. U.S. CONST.,

Art. VI, cl.2; Myrick v. Michigan Central R.R., 107

U.S. 102 (1882); Rice v. Santa Fe Elevator Corp., 331

15

U.S. 218 (1947); Missouri Pacific Ry. Co. v. Elmore &

Stahl, 375 U.S. 811 (1963); Coughlin v. United Van

Lines, LLC, 362 F. Supp. 2d 1166 (C.D. Cal. 2005);

Smith v. United Parcel Service, 296 F.3d 1244 (11th

Cir. 2002); Paper Magic Group v. J.B. Hunt Trans-

port, 318 F.3d 458 (3d Cir. 2003); Hoskins v. Bekins

Van Lines, 343 F.3d 769 (5th Cir. 2003).

Moreover, all United States Courts of Appeals,

including the Third Circuit, which have addressed

the issue of Carmack preemption, have unanimously

held that the Carmack Amendments’ broad scope

preempts all state law claims. See, e.g., Paper Magic

Group v. J.B. Hunt Transport, 318 F.3d 458 (3d Cir.

2003); see also, Fulton v. Chicago, Rock Island & P.R.

Co., 481 F.2d 326, 331 (8th Cir. 1973) (“The cases

make it clear that when damages are sought against

a carrier for failure to properly perform, or for negli-

gent performance of, an interstate contract of car-

riage, the Carmack Amendment governs.”); Intech,

Inc. vw. Consolidated Freightways, Inc., 836 F.2d 672,

677 (lst Cir. 1987) (“The Carmack Amendment pro-

vides the exclusive remedy ... ”); Cleveland ov.

Beltman North American Van Lines Co., Inc., 30 F.3d

379 (2d Cir. 1994) (Carmack preempted federal

common law claim for punitive damages based upon

bad faith claims handling.); Shao v. Link Cargo

(Taiwan) Limited, 986 F.2d 700, 706-707 (4th Cir.

1993) (“[I]f the Interstate Commerce Commission had

jurisdiction over the shipment in this case, Shao’s

common law claims are preempted by the Carmack

Amendment.”); Hoskins v. Bekins Van Lines, 343 F.3d

769 (Sth Cir. 2003); Moffit v. Bekins Van Lines Co, 6

16

F.3d 305, 306-07 (5th Cir. 1993) (Carmack Amend-

ment preempted claims of misrepresentation, fraud,

gross negligence, intentional infliction of emotional

distress and violation of Texas Deceptive Trade

Practices Act.); W.D. Lawson & Company v. Penn

Central Company, 456 F.2d 419, 421 (6th Cir. 1972)

(“As to the ... issue ... lof] whether or not the Car-

mack Amendment preempted common law suits ...

we hold that it did.”); Hughes v. United Van Lines,

829 F.2d 1407, 1415 (7th Cir. 1987) (“[We] hold that

the remedy provision of the Carmack Amendment

preempts all state and common law remedies incon-

sistent with the Interstate Commerce Act ... ”);

Hughes Aircraft v. North American Van Lines, 970

F.2d 609, 613 (9th Cir. 1992) (“Hughes [the shipper]

wisely conceded that federal law preempts any state

common law action against ... a common carrier.”);

Underwriters at Lloyas of London v. North American

Van Lines, 890 F.2d 1111, 1120 (10th Cir. 1989)

(“|T|he Carmack Amendment preempts state common

law remedies against a carrier for negligent damage

to goods shipped under a proper bill of lading.”),

Smith v. United Parcel Service, 296 F.3d 1244, 1246-

49 (llth Cir. 2002) (Carmack preempted plaintiffs’

claim for damages due to the carrier’s alleged failure

to provide services to plaintiffs.).

As the foregoing cases clearly establish, the

primary purpose of the Carmack Amendment is to

promote uniformity in the field of federal transporta-

tion law, including most importantly the investigation

and resolution of cargo damage claims. Foremost

17

among these goals is the avoidance of unnecessary

and costly litigation. It is well-established that the

purpose in promulgating regulations for claim-filing

was to encourage the parties to settle claims rather

than engage in costly and time-consuming litigation.

Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2d

Cir. 1980), cert. denied, 450 U.S. 915 (1981). More-

over, the regulations were promulgated to encourage

the voluntary disposition of loss and damage claims

in an amicable manner, privately, between the carrier

and the claimant, without the intervention of the

courts. Ford Motor Co. v. Transport Indem. Co., 795

F.2d 538 (6th Cir. 1986).

The issue of uniformity cannot be emphasized

enough, because it provides carriers and shippers

with knowledge and expectation that a claim or

dispute that arises from the interstate transportation

of goods will be considered and, if necessary, litigated,

pursuant to a single, uniform standard. Uniformity, if

enforced by the circuit courts, promotes expeditious

and economical settlements and prevents forum

shopping. The need for uniformity is even more

pronounced when one considers that 49 U.S.C.

$ 14706(d)1) states that an interstate motor carrier

may be sued in any state “through which the defen-

dant carrier operates.”

As discussed below, the panel's ruling has created

a situation where an interstate motor carrier cannot

manage, investigate or settle a claim until a lawsuit

is filed by the shipper since it will not know the

standard by which it must evaluate the sufficiency of

18

the shipper’s notice of claim until after the lawsuit is

filed and after venue is learned. This new reality

established by the panel below is completely contrary

to Carmack and must be resolved by this Honorable

Court.

C. The Panel’s Ruling Established a Third

Standard to an Already Muddled, Un-

predictable and Unworkable Status

Quo

The applicable federal regulations governing the

filing and processing of claims for loss, damage or

delay in the delivery of goods (whether household

goods or otherwise) are found at 49 C.F.R. § 370,

entitled PRINCIPLES AND PRACTICES FOR THE

INVESTIGATION AND VOLUNTARY DISPOSI-

TION OF LOSS AND DAMAGE CLAIMS AND

PROCESSING SALVAGE. The provisions of 49 C.F.R.

§ 370 are also incorporated into Atlas’s tariffs, which

are incorporated into the Bill of Lading for the re-

spondents’ shipment, attached hercto.

49 C.F.R. § 370.3(a) sets forth the basic require-

ments for interstate motor carriage claims when it

provides that:

A claim for loss or damage to baggage or for

loss, damage, injury, or delay to cargo shall

not be voluntarily paid by a carrier unless

filed, as provided in paragraph (b) of this sec-

tion, with the receiving or delivering carrier

. Within the specified time limits applica-

ble thereto and as otherwise required by law,

19

the terms of the bill of lading or other con-

tract of carriage and all tariff provisions ap-

plicable thereto.

49 C.F-R. § 370.3(b)(3) sets forth the following

specific requirements for filing a loss, damage or

delay claim with a carrier:

(b)

Minimum filing requirements. A written

or electronic communication (when agreed to

by the carrier and shipper or receiver in-

volved) from a claimant, filed with a proper

carrier within the time limits specified in the

bill of lading or contract of carriage or trans-

portation and:

(1)

(2)

(3)

Despite, and expressly contrary to, the clearly

stated goals and mandates of Congress and this

Honorable Court, the circuit courts of the United

Containing facts sufficient to identify

the baggage or shipment (or shipments)

of property,

Asserting liability for alleged loss, dam-

age, injury or delay, and,

Making claim for the payment of a speci-

fied or determinable amount of money,

shall be considered as sufficient compli-

ance with the provisions for filing claims

embraced in the bill of lading or other

contract of carriage; Provided, however,

That where claims are electronically

handled, procedures are established to

ensure reasonable carrier access to sup-

porting documents.

20

States have left for dead the goal and concept of

uniformity in their varied, inconsistent and wholly

incompatible interpretations of what constitutes “a

specific or determinable amount of money” when

examining the sufficiency of notice under 49 C.F.R.

§ 370.3(b). The situation that existed before the

ruling below was untenable, as the circuit courts had

created two wholly separate and distinctive stan-

dards for determining the sufficiency of a claim. The

situation created by the panel’s ruling below has

added to the confusion, unpredictability and uncer-

tainty by establishing a new, and third, interpretation

of the regulation. As discussed below, the ruling below

creates a standard where a shipper need not provide

any dollar amount, whether in the form of an esti-

mate or range of potential damages, in order to

satisfy 49 C.F.R. § 370.3(b)(3). This new standard

cannot be reconciled with the previously adopted

standards and creates a mish-mash of conflicting

standards whose reconciliation is based solely on

where the shipper decides to file suit. The rulings of

the circuit courts, and in particular the panel below,

mock the assertions and mandates of Congress and

this Honorable Court in their brazen disregard for

uniformity and predictability in the field of federal

transportation law. This Honorable Court is pre-

sented with the opportunity herein to remedy this

untenable situation and restore order where none

presently exists.

21

1. The Pre-Lewis Conflict Among the

Circuit Courts

As discussed above, the circuit courts have disre-

garded Congress’s desire for uniformity by adopting

widely divergent interpretations of 49 C.FR.

§ 370.3(b)(3) with respect to whether a shipper must

provide a carrier with an exact dollar amount of its

claim or, in the alternative, whether a shipper must

merely provide the carrier with an estimate or range

of potential damages.’

Prior to the issuance of the ruling below, the

federal circuits were split as to how specific the dollar

amount included in a claim had to be to be legally

sufficient under 49 C.F.R. § 370.3(b)(3). The Sixth,

Seventh, Ninth and Eleventh Circuits have held that

“substantial compliance” is sufficient. See, e.g., Ins.

Co. of N. Am. v. GI. Trucking Co., 1 F.3d 903 (9th Cir.

1993), cert. denied, 510 U.S. 1044 (1994); Culver v.

Boat Transit, Inc., 782 F.2d 1467 (9th Cir. 1986);

Kvaerner E&C Metals v. Yellow Freight Sys., Inc., 130

* The analysis herein is focused on those situations where

the shipper is able to calculate, ascertain or determine its

damages during the applicable claim-filing period. The discus-

sion herein does not focus on those situations where the shipper

is not able -- after reasonable efforts — to determine its damages

during the claim-filing period. These situations, where the

requirements of 49 C.F.R. § 370.3(b\(3) cannot be satisfied due to

“impossibility,” do not apply here, since the respondents knew

the exact amount of their damages within the nine-month claim-

filing period yet provided Atlas only with the vague references to

potential future claims in their October 26, 2004 letter.

22

Fed.Appx. 172 (9th Cir. 2005); Taisho Marine & Fire

Ins. Co. v. Vessel Gladiolus, 762 F.2d 1364 (9th Cir.

1985) and Trepel v. Roadway Express, Inc., 194 F.3d

708 (6th Cir. 1998). Under the “substantial perform-

ance” standard, the shipper need not provide the

carrier with an exact dollar amount of its claim.

Rather, the shipper need only provide the carrier with

an estimate or range of potential values, in dollars,

for the damage so that the carrier receives “enough

information to begin processing the claim.” Seimens

Power Transmission & Distribution, Inc. v. Norfolk

Southern Ratlway Company, 420 F.3d 1243 (11th Cir.

2005) (where the Eleventh Circuit adopted the “sub-

stantial performance” standard).

Standing in stark contrast to the Sixth, Seventh,

Ninth and Eleventh Circuits are the First, Second

and Fifth Circuits, which require the shipper to

provide an exact dollar amount to the carrier as a

condition precedent for recovery. This is the “strict

compliance” standard. See, e.g., Salztein v. Bekins Van

Lines, Inc., 993 F.2d 1187, 1190-91 (5th Cir. 1993);

Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2d

Cir. 1980), cert. denied, 450 U.S. 915 (1981); Nedlloyd

Lines B.V. Corp. v. Harris Transport Co., 922 F.2d 905

(Ist Cir. 1991); and McLaughlin Transportation

Systems, Inc. v. Rubinstein, 2005 U.S. District LEXIS

19932 (D.Mass. 2005). The circuit courts have ac-

knowledged the split among them, most recently in

Seimens Power Transmission & Distribution, Inc. v.

Norfolk Southern Railway Company, 2005 U.S. App.

LEXIS 17202 (11th Cir. 2005).

23

Prior to the panel’s ruling below, the United

States Court of Appeals for the Third Circuit had not

squarely adopted the “strict compliance” or “substan-

tial performance” standard. However, it is nonethe-

less recognized that, in S&H Hardware Supply Co. v.

Yellow Transp., Inc., 432 F.3d 550 (8d Cir. 2005), the

Court noted its preference for the substantial per-

formance standard in dicta. Id., at 554 (see, Sorkin,

Goods in Transit — Selected Regulations, Statutes and

Treaties, Vol. 2, § 7.09[3], p. 7-59.) Nevertheless, when

given the opportunity to do so in the case herein, the

Third Circuit did not embrace or adopt either the

strict compliance or substantial performance stan-

dard. Rather, the Third Circuit created a third stan-

dard to further muddle an already unpredictable field

of law.

2. The Ruling Below Creates a Third

Standard

As the foregoing cases clearly demonstrate, the

circuit courts have strayed well off of the reservation

in their efforts to maintain uniformity in the field of

interstate cargo claim management with their diver-

gent interpretations of 49 C.F.R. § 370.2(b). The Third

Circuit, however, went well beyond the already aban-

doned reservation and struck out for even more

remote territory in its unique and heretofore unstated

interpretation of the regulations. As demonstrated

below, the panel ruled that no amount of money need

be claimed by a shipper when making a claim to the

carrier:

24

The plain meanings of “specified” and “de-

terminable” reveal a key difference between

them and hence between the kinds of claims

permitted by the regulation. A claim for a

“specified amount of money” is a claim that

explicitly gives the dollar amount of money

being claimed. However, a claim for a “de-

terminable amount of money” need not ex-

plicitly state the dollar amount claimed.

Instead, a claim is “determinable” if the

amount of money claimed is' merely

“icaplable of being determined or ascer-

tained.” Notably, because a claim for a “spe-

cific amount of money” must state the

amount explicitly, such claims must be re-

duced to an exact dollar amount at the time

the claim is made. By contrast, a claim

that is “determinable” need not include

any dollar amount at all. Instead, all

that is required is that the claim pro-

vide enough information to make it pos-

sible to assign a dollar amount to the

claim at some point after the claim itself

is filed. (App. 14).

Were we to accept Atlas’s invitation to re-

quire that every claim must provide some

dollar amount to comply with subsection

(b\(3), we woald be treating the term “deter-

minable” as merely redundant of the term

“specified,” and would be ignoring the use of

the word “or” between the two terms.

(App. 14-15). (emphasis added).

25

Despite its statements to the contrary, it is

nonetheless apparent that — as a result of the panel’s

ruling below — a claim to a carrier in the Third Cir-

cuit need not contain any dollar amount whatsoever;

mere categories of loss or damage are sufficient.

Thus, regardless of how the panel below sought to

distinguish its ruling as separate and distinct from

the “strict compliance” versus “substantial perform-

ance” analysis, it is nonetheless obvious — from a

legal and practical perspective — that the panel did, in

fact, make new law and create a new, heretofore

unstated and previously rejected, third standard for

notice. The panel’s interpretation of 49 C.FR.

§ 370.3(b) has effectively rendered the requirement

that a shipper provide a written communication

making claim for the payment of an amount of

money, whether it be specified or determinable,

superfluous and without effect. A shipper may now

provide only some vaguely “determinable” basis for a

future dollar amount rather than diligently work to

provide an actual claim for the payment of an amount

of money to which a carrier can respond by either

paying the claim or denying the claim. In addition,

under the panel’s reasoning, the “or” in 49 C.FR.

§ 370.3(b\3) effectively eviscerated and made irrcle-

vant the term “specified.” If the panel’s reasoning is

applied to a claim, the shipper may completely ignore

the requirement for a specified amount of money in

its claim, so long as it provides the carrier with some

information about the types of losses being claimed

the value of which are “capable of being determined

or ascertained ... at some point after the claim itself

is filed.” (App. 14).

26

Indeed, the Eleventh Circuit identified and

recognized this heretofore rejected third standard

when it acknowledged the failure of those claims “in

which the shipper provided the carrier with no dam-

age amount at all.” Seimens Power Transmission &

Distribution, Inc. v. Norfolk Southern Railway Com-

pany, 420 F.3d 1243 (11th Cir. 2005), citing Salztein v.

Bekins Van Lines, Inc., 993 F.2d 1187, 1190-91 (5th

Cir. 1993) and Nedlloyd Lines B.V. Corp. v. Harris

Transport Co., 922 F.2d 905 (1st Cir. 1991).

Nonetheless, in the ruling below, the panel chose

to ignore the well-established rule that — as stated

clearly in Siemens Power Transmission & Distribu-

tion, Inc. v. Norfolk Southern Railway Company, —-

shippers who provide “no damage amount at all”

when making a claim for damages are precluded from

recovery. 420 F.3d at 1249, citing Salztein v. Bekins

Van Lines, Inc., 993 F.2d 1187, 1190-91 (5th Cir.

1993); Pathway Bellows, Inc. v. Blanchette, 630 F.2d

900 (2d Cir. 1980), cert. denied, 450 U.S. 915 (1981);

and Nedlloyd Lines B.V. Corp. v. Harris Transport

Co. , 922 F.2d 905 (1st Cir. 1991).

Respondents herein did not provide Atlas with

any dollar amount whatsoever, either in their October

26, 2004 letter or at any time during the nine-month

claim-filing period (even though they learned of their

exact claim amount well within the nine-month

period). It is absolutely clear that such non-

performance would have’ precluded respondents’

recovery in the First, Second and Fifth Circuits,

27

which, as noted, require the shipper to provide the

carrier with an exact dollar amount within the claim-

filing period. It is equally certain that respondents’

claim would have failed in the Sixth, Seventh, Ninth

and Eleventh Circuits, since they failed to provide

even an estimate or range of potential dollar damages

to petitioner during the claim-filing period. Despite

the panel’s reasoning to the contrary, there was no

standard satisfied by the respondents in their Octo-

ber 26, 2004 letter or at any time in the claim-filing

period. Indeed, the only standard by which respon-

dents’ claim could proceed was under a new standard,

adopted in the case herein, which allowed respon-

dents’ to file suit even though they did not provide

Atlas with any dollar amount whatsoever. This

standard can be described as the “no compliance” or

“no performance” standard, and it stands in stark

contrast to the previously existing standards of “strict

compliance” and “substantial performance.”

3. The Effect of the Panel’s Ruling is

Broad, Severe and Will Undermine

the Purpose and Goal of the Car-

mack Amendment

As discussed, the Carmack Amendment was

enacted in 1906 to promulgate and ensure the effi-

cient transportation of goods in interstate commerce,

and to create a national policy regarding an inter-

state carrier’s liability for damages arising from the

interstate transportation of goods. New York, New

Haven & Hartford Railroad Co. v. Nothnagle, 346

28

U.S. 128, 181, 73 S.Ct. 986 (1953). Thus, while the

principal purpose of the Carmack Amendment is to

achieve national uniformity in assigning liability to

carriers Rini v. United Van Lines, Inc., 104 F.3d 502,

cert. denied, 118 S.Ct. 51, 522 U.S. 809, 189 L.Ed.2d

16, its more important practical and commercial

effect is to “secure reasonable notice” to the carrier to

promote the timely and cost-effective resolution of

damage claims. See, Seimens Power Transmission &

Distribution, Inc. v. Norfolk Southern Railway Com-

pany, 420 F.3d 1243 (11th Cir. 2005). Indeed, 49

C.F.R. § 370.3(b)(3), initially promulgated as 49

C.F.R. § 1005.2, was enacted in 1972 by the Interstate

Commerce Commission to “combat carriers’ attempts

to discriminate among shippers in their payment of

claims, to encourage prompt investigation and

voluntary settlement, and to facilitate more

‘harmonious relationships’ between carriers

and claimants.” See, Ex Parte No. 263: Rules, Regu-

lations, and Practices of Regulated Carriers with

Respect to the Processing of Loss and Damage Claims,

340 I.C.C. 515, 547-548, 553 (1972) (emphasis added).

By establishing a national, uniform regime for

the resolution of interstate cargo claims, the Carmack

Amendment enables carriers to assess their risks and

exposures and to predict their potential liability for

damages, regardless of where the loss, injury or delay

occurs. Suarez v. United Van Lines, Inc., 791 F. Supp.

815 (D.Colo. 1992). This “national scheme of carrier

hability” promotes and effectuates the predictable

29

and efficient flow of goods by providing carriers with

well-defined parameters within which they can

evaluate claims, manage risk and predict future

exposure.

The foregoing differences with respect to the

judicial interpretation of 49 C.F.R. § 370.3(b)(3)

contravene and undermine the purpose of Carmack,

since an interstate motor carrier cannot, under the

panel’s reasoning, reliably ascertain, predict or man-

age its risk or exposure to loss if it has to factor the

location of the loss into its evaluation. Rather, just as

the drafters of Carmack sought to avoid, the value of

a claim will, and does, depend upon where the par-

ticular lawsuit is filed.

Moreover, the conflicting interpretations of 49

C.F.R. § 370.3(b)(3) put carriers in an impossible

“Catch-22” situation: under 49 C.F.R. § 370.3(a), a

carrier cannot voluntarily pay a claim unless it meets

the requirements of § 370.3(b), but the carrier dues

not now know if a claim meets the requirements of

§ 370.3(b) until it is sued. This will effectively pre-

clude a carrier from attempting to settle a claim until

a lawsuit is filed. In the instant case, for example,

respondents moved from Pennsylvania to New York.

Pursuant to 49 U.S.C. § 14706(d)(1), respondents

could have filed suit against Atlas in New York or

Pennsylvania (or, for that matter, in any of the other

judicial districts in the United States as Atlas, like

many carriers, operates in all of them). Had respon-

dents filed their lawsuit in New York, their October

26, 2004 letter would have certainly and undeniably

30

failed to satisfy the requirements of 49 C.F.R.

§ 370.3(b)(3). As noted, New York, as part of the

Second Circuit, is a “strict compliance” jurisdiction,

which requires that the shipper provide the carrier

with an exact dollar amount of a claim as a condition

of recovery. Since respondents filed their lawsuit in

Pennsylvania, the controversy was controlled by the

law of the Third Circuit, which, as a result of the

ruling below, requires nothing more from the shipper

but a vague description of a right to a future recovery.

In an even more remarkable scenario, had Atlas

moved the respondents from Ohio (a Sixth Circuit

“substantial performance” jurisdiction) through

Pennsylvania to New York, any one of three stan-

dards for proper notice under 49 C.F.R. § 370.3(b)(3)

[strict compliance, substantial performance or the

“no-performance” standard adopted by the panel

below], could have applied.

The clearly stated and undeniable purpose of the

federal claim-filing regulations is, as noted, to pro-

mote the fair and efficient resolution of claims and,

equally important, to avoid the costs and delays of

litigation. However, under the present reality, the

only way that Atlas, or any other motor carrier, can

determine whether notice from a shipper complies

with 49 C.F.R. § 370.3(b\(3) is to wait until after a

lawsuit if filed so that venue and jurisdiction are

revealed. The sheer impracticality and overwhelming

absurdity of the present situation mandates review

by this Honorable Court.

31

It is also important to note that, although the

case sub judice involves unsophisticated shippers of

household goods, the effect and consequences of the

ruling are not so limited. Every day, goods worth

billions of dollars are transported by thousands of

carriers, large and small, for commerciai shippers

and household goods shippers. The conflicting stan-

dards among the circuit courts present sophisticated

shippers with the opportunity to forum shop when

bringing suit against a carrier, particularly since a

delivering carrier is subject to suit under Carmack in

any federal district in which it operates. The inherent

unfairness of this situation is obvious, since it places

carriers at an unfair disadvantage when attempting

to resolve claims. Moreover, the costs to society and

the economy as a whole are, and will continue to be,

enormous, as carriers will avoid efforts to resolve

claims until venue is established and shippers will

forum shop and proceed directly to litigation in order

to secure the best opportunity fer recovery.

4. The Ruling Below Presents an Op-

portunity to Re-Assert the Uniform-

ity and Primacy of Carmack and of

this Honorable Court

In setting forth the reasons this Fionverabie Court

will consider in determining whether to grant certio-

rari, United States Supreme Court Rule 10(a) states

foremost that certiorari will be granted when a deci-

sion of a court of appeals of the United States “is in

conflict with the decision of another United States

32

court of appeals on the same important matter.” Sup.

Ct. R. 10(a); see also, Rice v. Sioux City Memorial

Park Cemetery, Inc., 349 U.S. 70, 75 S.Ct. 614, 99

L.Ed. 897 (1955). The ruling below certainly concerns

a matter of significant national importance, as it

muddies an already murky sea of conflicting stan-

dards as to what constitutes a sufficient clam under

a federal regulation drafted primarily to ensure

national uniformity and efficient, fair claim settle-

ment processes.

Thus, the panel’s ruling below presents this

Honorable Court with the opportunity to address the

inherent illogicality and commercially impractical

consequences of the aforementioned split among the

circuit courts.

CONCLUSION

The primary purpose of the Carmack Amend-

ment and the Code of Federal Regulations Part 370 is

to promote, protect and promulgate the uniform

management, administration and resolution of loss,

damage and delay claims arising from the interstate

transportation of goods, including household goods.

The circuit courts have interpreted 49 C.FR.

§ 370.3(b)(3) to require either an exact dollar amount

from the shipper [strict compliance] or a range or

estimate of damages [substantial performance] to the

carrier in order to constitute a sufficient claim. In

redefining the meaning of the term “determinable” in

33

49 C.F.R. § 370.3(b)(3), the panel established and

adopted a third and heretofore unrecognized standard

that eliminates altogether the shipper’s obligation

and duty to provide the carrier with some dollar

amount, whether an estimate, range of values or

exact figure, within the claim-filing period. The

panel’s interpretation of 49 C.F-R. § 370.5(b)(3) was so

expansive and novel that it established a new, third

standard, wherein a shipper need not provide any

dollar amount whatsoever to the carrier at any time

during the nine-month claim-filing period. This new

standard stands in sharp contrast to the two previ-

ously existing standards of interpreting 49 C.F.R.

§ 370(b)(3) and has made an already muddled legal

environment even worse by adding even more uncer-

tainty and delay into the claim-filing and settlement

process.

For the foregoing reasons, petitioner respectfully

requests this Honorable Court to issue a Writ of

Certiorari to review the decision of the Court below

and to review the conflict that has developed with

this Court’s holdings, as well as the holdings of other

circuits, regarding the shipper’s duties pursuant to

34

49 C.F.R. § 370.3(b)(3) to file a timely and sufficient

claim to the carrier.

Respectfully submitted,

RAWLE & HENDERSON, LLP

JAMES A. WESCOE, ESQUIRE

Attorneys for Petitioner

Atlas Van Lines, Inc.

The Widener Building

One South Penn Square

Philadelphia, PA 19107

(215) 575-4200

Dated: January 7, 2009

App. 1

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2688

RICHARD J. LEWIS;

PATRICIA A. LEWIS

Appellants,

v.

ATLAS VAN LINES, INC.

On Appeal! from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 06-cv-1862)

District Judge: Honorable John E. Jones, III

Argued June 3, 2008

Before: FISHER, JORDAN, Circuit Judges and

YOHN*, District Judge.

(Filed: September 9, 2008)

* Honorable William H. Yohn, Jr., Senior Judge, United

States District Court for the Eastern District of Pennsy!vania,

sitting by designation.

App. 2

James J. West [ARGUED]

105 N. Front Street — #205

Harrisburg, PA 17101

Counsel for Appellants

James A. Wescoe [ARGUED]

Rawle & Henderson

1339 Chestnut Street — 16th FI.

Philadelphia, PA 19107

Counsel for Appellant

OPINION

JORDAN, Circuit Judge.

This appeal involves a claim by Richard and

Patricia Lewis against Atlas Van Lines, Inc. (“Atlas”)

for damages incurred as a result of Atlas’s failure to

live up to its promise to move the Lewises’ household

belongings by a date certain. The District Court

dismissed the Lewises’ claim, concluding that they

had failed to comply with the procedural require-

ments of 49 U.S.C. § 14706, also known as the “Car-

mack Amendment,” or, for purposes of this opinion,

the “Amendment.” While we agree with the District

Court as to one aspect of its ruling, as more fully

explained herein, we disagree that the Lewises’ claim

for damages in the amount of additional mortgage

payments they had to make and the lost profit on the

sale of their home was insufficient to comply with the

Carmack Amendment and applicable regulations. We

App. 3

will therefore vacate the District Court’s order dis-

missing the case and remand for further proceedings.

I. Standard of Review & Jurisdiction

The District Court had jurisdiction pursuant to

28 U.S.C. § 1331. We have jurisdiction under 28

U.S.C. § 1291. The standard of review for a dismissal

under Federal Rule of Civil Procedure 12(b)(6) is de

novo. Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008). In conducting our review, we must

“accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff,

and determine whether, under any reasonable read-

ing of the complaint, the plaintiff may be entitled to

relief.” Id. at 233.

II. Background

Consistent with our standard of review, we recite

the facts of the case in the light most favorable to the

Lewises. The Lewises owned and lived in a house in

Glen Rock, Pennsylvania. On July 19, 2004, as part of

a planned move to New York, they entered into a

contract to sell that residence. The sales agreement

provided that the Lewises would deliver “a vacant

building” to the buyer at the time of the closing,

which was scheduled for August 27, 2004. (Appellee

App. at A24 qq 6-8.) Well aware of the need to move

their belongings quickly to comply with the terms of

the sales agreement, the Lewises solicited a bid from

Atlas’s local agent, Warners Moving and Storage

i

App. 4

(“Warners”), explicitly informing Warners that their

house had to be empty before August 27. The Lewises

also informed Warners that they had purchased a

new home in New York and that they intended to use

the proceeds from the sale of their Pennsylvania

home to pay for it.

Warners assured the Lewises that, if hired, it

—————would have their Pennsylvania residence emptied by

August 26, the day before the closing was scheduled

to occur. On July 27, 2004, a Warners sales represen-

tative executed an agreement with the lLewises

providing that “Warners Moving and Storage will

arrive at your home on 8/23 & 8/24 to box the house-

hold belongings with loading the household effects on

8/25 & 8/26. Delivery is scheduled for 8/31 or 9/1.”

(Appellee App. at A42.)

However, notwithstanding its explicit promise,

made with full awareness of the Lewises’ obligation to

present an empty home at closing on August 27 and

their need to pay for their new home in New York,

Warners dramatically failed to fulfill its commitment.

On August 23 and 24, Warners did pack the Lewises’

belongings as required, and on August 25, Warners

did provide a moving van at the Lewises’ residence,

and began loading the belongings into the van. De-

spite its obligation to complete the loading by the

following day, though, and knowing full well the

possible consequences to the Lewises, Warners ad-

vised the Lewises that the moving van was leaving

that evening because the tractor and crew were

App. 5

needed to handle a move to North Carolina for an-

other customer the next day.

The Lewises were still left believing that another

crew would appear with a tractor trailer to finish

their move as scheduled. But, on August 26, the day

it had agreed to complete the loading, Warners failed

to show up at the Lewises’ home. Obviously con-

cerned, the Lewises attempted to contact Warners. No

one from Warners appeared at the Lewises’ home that

day, and no one from Warners offered any explanation

for the delay. Nor did Warners appear on August 27,

the day of the closing. Aware that the real estate

transaction was in serious jeopardy, the Lewises

again tried to contact Warners and eventually spoke

to Jeff Warner at around noon on August 27.' Mr.

Warner advised the Lewises that there were no

licensed drivers available to deliver a moving van to

their residence.

Later that day, the Lewises attended the sched-

uled closing. Not surprisingly, given Warners’ failure

to perform as promised, the Lewises were unable to

deliver a vacant home to the purchasers. The pur-

chasers refused to go theough with the sale. Warners

did not complete the loading of the Lewises’ belong-

ings until August 29, and did not deliver them to New

York until September J, 2004.

' We are unable to tell fro. 1 the record whether Joff Warner

was a principal of Warners or simp / an employee.

App. 6

When the Lewises’ belongings arrived at their

new home in New York, Richard Lewis acknowledged

their receipt by signing a Household Goods Bill of

Lading and Freight Bill. That document provided

that “as ~ condition precedent to recovery, a claim for

any damage ... or delay, must be filed within nine

months after delivery.... When a claim is not filed

in accordance with the foregoing provisions,

carrier shall not be liable and such a claim shall not

be paid.” (Appellee App. at A139.)

The following month, on October 26, 2004, the

Lewises’ attorney sent a letter to Warners requesting

compensation for losses incurred because of Warners’

failure to timely perform as promised under the

parties’ agreement. The letter requested damages

equal to the “loss of profit on the sale of their resi-

dence, additional mortgage payments that Mr. and

Mrs. Lewis have had to pay on two mortgages on

their Pennsylvania residence which otherwise would

have been paid off at closing, and various other

miscellaneous expenses they would not have other-

wise incurred.” (Appellee App. at A150.) The letter

went on to explain that the Lewises could not provide

an exact dollar amount for their losses “until they are

able to sell their Pennsylvania residence.” (Appellee

App. at Ald1.) Shortly thereafter, on November 4,

2004, Warners’ counsel sent a letter to the Lewises’

alltorney acknowledging receipt of the October 26,

2004 letter, and requesting additional information

and documentation.

App. 7

On March 14, 2005, the Lewises entered into a

new contract to sell their Pennsylvania property. The

sale closed on June 3, 2005, at a price approximately

$35,000 lower than the amount the Lewises would

have received under the prior sales agreement, had

that transaction been completed. During the nine-

month period between the delivery of their belongings

to New York and the sale of their Pennsylvania

residence, the Lewises paid approximately $9,000 in

mortgage payments on the Pennsylvania residence,

approximately $1,600 in additional utility bills, and

over $28,000 in additional taxes.”

On November 9, 2005, the Lewises sent a letter

to Warners fully explaining their damages and pro-

viding a detailed spreadsheet showing the expenses

incurred because of Warners’ failure to keep its

promises. Warners refused to pay, and the Lewises

were compelled to file suit.

In their complaint filed on August 23, 2006

against Atlas in its capacity as Warners’ principal, the

Lewises asserted claims for breach of contract and

negligence and sought approximately $72,000 in

* While $28,000 may seem an extraordinary tax liability

under these circumstances, the Lewis's explained in a November

9, 2005 letter to Atlas that approximately $20,000 of that figure

represented fedcral income taxes that they were required to pay

as a penalty for withdrawing money from a 401(k) account. They

assert that they withdrew the money so that they could pur-

chase their home in New York, a step they would not have had to

take if they had been able to sell their Pennsylvania home as

planned.

App. 8

damages. Atlas, relying on the Carmack Amendment,

removed the case to the United States District Court

for the Middle District of Pennsylvania. Atlas then

filed a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). It argued that the Lewises’

state law claims were preempted by the Amendment

and that the Lewises could not obtain relief under

that statute because they had not complied with an

associated regulation, 49 C.F.R. § 370.3, which re-

quires a shipper to file a claim “for a specified or

determinable amount of money” with the carrier

within the time limits specified in the bill of lading.

On January 30, 2007, the District Court denied

Atias’s motion to dismiss, concluding that the Car-

mack Amendment did not preempt the Lewises’ state

law claims. However, on May 30, 2007, the District

Court granted Atlas’s motion for reconsideration and

dismissed the case. In doing so, the District Court

agreed with Atlas that the Lewises’ state law claims

were preempted and that the Lewises had not com-

plied with the cited regulation. This appeal followed.

Il. Discussion

Subsection (a)(1) of the Carmack Amendment, 49

U.S.C. § 14706(a)(1), provides in relevant part that:

A carrier providing transportation or service

. shall issue a reccipt or bill of lading for

property it receives for transportation... .

That carrier ... [is] liable to the person enti-

tled to recover under the receipt or bill of

App. 9

lading. The liability imposed under this

paragraph is for the actual loss or injury

to the property. ...

At oral argument, counsel for the Lewises cor-

rectly conceded that the Amendment preempts the

Lewises’ state law claims against Atlas.’ See, e.g., Ga.,

Fla. & Atlantic Ry. Co. v. Blish Milling Co., 241 U.S.

190, 196 (1916) (explaining that the Carmack

Amendment covers “all losses resulting from any

failure to discharge a carrier’s duty as to any part of

the agreed transportation”); Moffit v. Bekins Van

Lines Co., 6 F.3d 305, 306 (5th Cir. 1993) (holding

that the Carmack Amendment preempted state law

claims by a consumer shipper against a moving

company based on late delivery of the shipper’s

belongings).

* Although the Lewises concede that the Carmack Amend-

ment governs their claims, they urge us to exempt them entircly

from complying with the claim filing requirements sey out in 49

C.E.R. § 370.3. Relying on Wisconsin Packing Co. v. Indiana

Refrigerator Lines, Inc., 618 F.2d 441 (7th Cir. 1980), the

Lewises contend that § 370.3 does not apply to them because

Atlas has chosen to contest their claim. Were we writing on a

clean slate, the Lewises’ argument might have greater force

because, as the Seventh Circuit pointed out in Wisconsin

Packing, § 370.3 explicitly refers only to claims paid “voluntar-

ily” by a carrier. Jd. at 445. However, the Lewises’ reading of the

regulation is foreclosed by our recent decision in S & H Hard.

ware & Supply Co. v. Yellow Transp., Inc., 432 F.3d 550, 556 (3d

Cir. 2005) (explaining that “[a]s a matter of public policy, the

[regulation] is intended to provide carriers with an opportunity

to investigate claims, so it reaches its full usefulness precisely

when a carrier wishes to contest a claim”).

App. 10

As to claims under the Carmack Amendment

itself, subsection (e)(1) provides that “a carrier may

not provide ... a period of less than 9 months for

filing a claim against it under this section. ...” 49

U.S.C. § 14706(e)(1). The contents of a valid claim are

set forth in 49 C.F.R. § 370.3.‘ Pursuant to subsection

(b) of that regulation, a claim for “loss, damage, or

delay to cargo” must include:

A written or electronic communication ...

from a claimant, filed with a proper carrier

within the time limits specified in the bill of

lading... and:

(1) Containing facts sufficient to

identify the baggage or shipment (or

shipments) of property,

(2) Asserting liability for alleged

loss, damage, injury, or delay, and

* The regulations found in 49 C.F.R. § 370.3 went into effect

in 1997 and are also found in 49 C.F.R. § 1005.2. As a result,

several of the cases we discuss in this opinion cite to 49 C.F.R.

§ 1005.2 rather than 49 C.F.R. § 3270.3. However, the two

provisions are identical. See Motor Carricr Routing Regulations;

Disposition of Loss and Damage Claims and Processing Salvage;

Preservation of Records, 62 Fed.Reg. 32040-0)1 (June 12, 1997)

(explaining that, due to the passage of the Interstate Commerce

Commission Termination Act of 1995, it was necessary to “ada| |

to 49 CFR chapter III certain motor carrer transportation

regulations, also codified in 49 CFR chapter X.”) For clarity’s

suke, we will refer to the regulation as 49 C.F.R. § 370.3

throughout this opinion.

App. 11

(3) Making claim for the payment

of a_ specified or determinable

amount of money,

shall be considered as sufficient compliance

with the provisions for filing claims em-

braced in the bill of lading. . . .

Consistent with subsection (e)(1) of the Amend-

ment, the bill of lading that Atlas gave to the Lewises

required that, “as a cendition precedent to recovery, a

claim for any damage ... or delay, must be filed

within nine months after delivery. ... When a claim

is not filed ... in accordance with the foregoing

provisions, carrier shall not be liable and such a claim

shall not be paid.” (Appellee App. at A139.) Atlas

delivered the Lewises’ belongings to their new home

in New York on September 3, 2004. Thus, pursuant to

the bill of lading and the Amendment, the Lewises

had until June 3, 2005 to provide Atlas with notice of

their claim in a manner that complied with 49 C.F.R.

§ 370.3(b).

On appeal, the parties do not dispute that the

October 26, 2004 letter sent by the Lewises’ attorney

to Atlas satisfies the requirements found in

§ 370.3(b1) and (b)(2). They disagree, however, on

" We note that the bill of lading docs not appear to contain

any reference to the regulation or any requirement that the

claim be for a specified or determinable amount of money. We do

not imply that such a reference is legally required, but its

inclusion may have assisted in the resolution of this dispute

before litigation.

App. 12

whether that letter makes a claim for a “specified or

determinable amount of money,” as required by

§ 370.3(b)\(3). The Lewises argue that the letter

makes a claim for a determinable amount of money

because it identifies their losses as the “loss of profit

on the sale of their residence, additional mortgage

payments that [they] have had to pay on two mort-

gages on their Pennsylvania residence which other-

wise would have been paid off at closing, and various

other miscellaneous expenses they would not have

otherwise incurred.” (Appellee App. at A150.) Accord-

ing to the Lewises, listing the nature of their dam-

ages renders their claim “determinable” because

those damages are “susceptible of being determined,

found out, definitively decided upon, or settled.”

(Appellant Br. at 17.) Atlas responds that, to make a

claim for a determinable amount of money, the

Lewises’ claim must include, at minimum, some

dollar amount, and the October 26 letter fails to

provide “any dollar amount whatsoever.” (Appellee

Br. at 9, 26.) We agree with the Lewises that the

October 26, 2004 letter stated a claim for a determin-

able amount of money as to the amount of their extra

mortgage payments and the difference between the

price at which they would have sold their Pennsyl-

vania home, but for Warners’ actions, and the lower

price at which the home ultimately sold. However, a

claim for “miscellaneous” expenses is too vague to

constitute a claim for a determinable amount of

money, as contemplated by the regulation, and hence

Atlas is not liable for those expenses.

App. 13

We begin our analysis of § 370.3 with the rule

that “[t]he basic tenets of statutory construction

apply to construction of regulations and ‘our starting

point on any question concerning the application of a

regulation is its particular written text.’” Pa. Fed’n.

of Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d

337, 351 (3d Cir. 2007) (quoting Wilson v. U.S. Parole

Comm’n, 193 F.3d 195, 197 (38d Cir. 1999)). In examin-

ing a regulation’s text, “lilt is a fundamental canon of

. construction ... that unless otherwise defined,

words will be interpreted as taking their ordinary,

contemporary, common meaning.” CSX Transp. Co. v.

Novolog Bucks County, 502 F.3d 247, 257 (3d Cir.

2007) (citations and internal quotation marks omit-

ted).

As noted already, § 370.3(b)(3) requires that a

valid claim include a “written communication

[mJaking [a] claim for the payment of a specified

or determinable amount of money.” 49 C.FR.

§ 370.3(b)(3) (emphasis added). Because the regula-

tion does not define the meaning of the term “speci-

fied” or the term “determinable,” we must apply the

ordinary meaning of those words. “Determinable”

simply means “lajble to be determined or ascer-

tained.” Black’s Law Dictionary (8th ed. 2004). “Spec-

ify,” by contrast, means “to mention or name in a

specific or explicit manner: tell or state explicitly or in

detail.” Webster’s Third New International Dictionary,

2187 (Philip Babcock Gove, ed. 1961) (1986). The

plain meanings of “specified” and “determinable”

reveal a key difference between them and hence

App. 14

between the kinds of claims permitted by the regula-

tion. A claim for a “specified amount of money” is a

claim that explicitly gives the dollar amount of money

being claimed. However, a claim for a “determinable

amount of money” need not explicitly state the dollar

amount claimed. Instead, a claim is “determinable” if

the amount of money claimed is merely “[caplable of

being determined or ascertained.” Notably, because a

claim for a “specific amount of money” must state the

amount explicitly, such claims must be reduced to an

exact dollar amount at the time the claim is made. By

contrast, a claim that is “determinable” need “et

include any dollar amount at all. Instead, all that is

required is that the claim provide enough information

to make it possible to assign a dollar amount to the

claim at some point after the claim itself is filed.

Our conclusion that “specified” claims under

§ 370.3(b)(3) include exact dollar amounts while

“determinable” claims do not is not only consistent

with the ordinary usage of both terms, it is also

consistent with another canon of statutory and regu-

latory construction. We have explained that “[ilf

possible, we must give effect to every clause and word

of a statute, and be reluctant to treat statutory terms

as surplusage.” Vavarez v. Klingensmith, 372 F.3d

188, 190 (3d Cir. 2004) (citations and internal punc-

tuation and quotation marks omitted). Were we to

accept Atlas’s invitation to require that every claim

must provide some dollar amount to comply with

subsection (b)(3), we would be treating the term

“determinable” as merely redundant of the term

App. 15

“specified,” and would be ignoring the use of the word

“or” between the two terms.”

Atlas attempts to evade the ordinary meaning of

the regulation’s langvage and the basic rules of

textual construction by arguing that, while a “deter-

minable” claim need not include the exact amount of

the shipper’s claim, it must include some dollar

amount. We find no support for Atlas’s reading, either

in the text of the statute itself or in common sense.

Requiring a shipper to list some dollar amount pre-

sents the shipper with some limited options. The

shipper might list a single dollar amount, such as

“$100.00.” As we have already explained, such a claim

is a claim for a “specified” amount of money, not a

“determinable” amount of money. Second, a shipper

might list an estimate of its damages, for example, by

filing a claim for “$100 more or less.” Without further

amplification, such a claim is not for a specified or

determinable amount of money because 49 C.FR.

§ 370.3(d) provides that:

* Rather than focus on the regulation’s text, the Lewises

urge us to adopt a “substantial performance” standard to

evaluating claims under § 370.3(b). We have previously noted

the possibility of such a standard in dicta. See S & H Hardware,

432 F.3d at 554 (stating that “[clourts have construed the

written claim requirement liberally, however, and the standard

for determining sufficiency is one of substantial performance”)

(internal quotation marks and citations omitted). In this case,

we may resolve the Lewises’ appeal based on the plain meaning

of § 370.3(b)(3). Thus, while we do not reject the application of a

substantial performance standard in an appropriate case, we

have no reason to consider it here.

App. 16

[wjhenever a claim is presented ... for an

uncertain amount, such as ‘$100 more or

less,’ [the carrier] shall ascertain as nearly as

possible the extent, if any, of the loss or

damage for which it may be responsible. It

shall not, however, voluntarily pay [such] a

claim unless and until a formal claim in writ-

ing for a specified or determinable amount of

money shall have been filed in accordance

with the provisions of paragraph (b) of this

section.

The implication of the clause “until a formal claim in

writing for a specified or determinable amount of

money shall have been filed” is that a claim like

“$100 more or less” is different from and does not

mect the “specified or determinable” standard.

However, we do not read § 370.3(d) to bar all

claims that are less than fully specific regarding the

dollar amount at stake. Instead, the plain meaning of

the word “determinable” leads us to conclude that

§ 370.3(d) bars cle ms that include estimated dollar

amounts only whs. the claim does not contain suffi-

cient information to put the carrier on notice of the

nature and extent of its liability. Cf. Trepel v. Road-

way Exp., Inc., 194 F.3d 708, 712 (6th Cir. 1999)

(holding § 370.3(b\3) was satisfied when the nature

of the shipper’s damages was not in dispute and the

shipper estimated those damages at $150,000); Ins.

Co. of N. Am. v. G.I. Trucking Co., 1 F.3d 903, 904-05

(9th Cir. 1993) (applying a “substantial performance”

standard to §370.3(b) and holding that a claim

satisfied § 370.3(b)\(3) when the shipper identified the

App. 17

shipment at issue, provided supporting doeumenta-

tion, and estimated his damages at $100,000).

Beyond the unwarranted twist Atlas’s argument

gives to the plain meaning of “determinable,” t’

argument also violates an important purpose of the

statute. “The purpose of the written claim require-

ment is to insure that the carrier may promptly

investigate claims, and not to permit the carrier to

escape liability.” S & H Hardware & Supply Co. v.

Yellow Transp. Inc., 432 F.3d 550, 554 (3d Cir. 2005).

The “crux of the notice [under § 370.3(b)] is whether

it apprises the carrier of the basis for the claim and

that reimbursement will be sought.” Jd. Valid claims

are determinable not because they include some

dollar amount, but because they provide enough

information about the nature and extent of the car-

rier’s liability to allow the carrier to understand its

potential exposure to liability. See G.I. Trucking Co., 1

F.3d at 906 (explaining that “the form of the written

notice is less important than its adequacy in appris-

ing the carrier of the basis for the claim and the fact

that reimbursement will be sought.”). Thus, although

a valid claim will often include an estimate of the

shipper’s damages along with enough factual infor-

mation to inform the carrier of the basis for the claim,

a dollar amount is not an absolute requirement. See

id.(stating that “l|o|ther circuits ... have held that a

claini must specify an amount of damages to be

considered legally sufficient under the regula-

tions.... We expressly reject this conc!usion.”) (cita-

tions omitted).

App. 18

We conclude that, as to part of what they de-

manded, the Lewises’ October 26, 2004 letter provides

a sound example of how a shipper may give proper

notice to a carrier of a determinable claim without

including a dollar amount. The letter informed Atlas

that it was being asked to pay for the loss of profit on

the sale of their residence and for additional mort-

gage payments that Mr. and Mrs. Lewis would have

to pay on their Pennsylvania residence which other-

wise would have been paid off at closing. (Appellee

App. at A150.) The letter went on to explain that the

Lewises could not provide an exact dollar amount for

their losses “until they are able to sell their Pennsy]-

vania residence.” (Appellee App. at Al51.) Based on

the information provided to it by the Lewises, Atlas

knew the nature of that claim, and how the amount of

it would ultimately be determined.’ Section 370.3(b)

requires nothing more.

However, the Lewises’ additional demand that

they be reimbursed for “miscellaneous expenses”

requires different treatment. Unlike their claim

for lost profit and payment of additional mortgage

” Atlas also alleges that the Lewises failed to act in a timely

manner because they did not provide it with the final dollar

amount of their damages until November 2005, well after the

nine-month claim filing period specified in the bill of lading had

expired. Atlas’s argument misses the mark because, for the

reasons we have explained, the Lewises’ October 26, 2004 letter,

which was undisputedly sent within the nine-month period,

included a valid claim for a “determinable amount of money”

under § 370.3(b)(3).

App. 19

liability, that claim is not determinable because it

does not inform Atlas of the nature of the claim or the

extent of Atlas’s liability. Hence, with respect to that

claim, the Lewises did not file a “determinable” claim

within the nine months specified by the bill of lading,

and Atlas is not liable to them for whatever those

expenses may be.”

Finally, Atlas urges us to follow other Circuits

which, it insists, have held that claims which com-

pletely lack dollar amounts cannot satisfy § 370.3(b)(3).

We decline the invitation. As already explained, our

analysis of the text of the regulation persuades us

that a dollar amount is not required.”

* It was, for example, only after the nine-month time frame

that the Lewises described the tax penalty they faced by being

forced to withdraw funds from their 401(k) account.

* We note, however, that Atlas overstates the holdings of at

least two of the cases on which it relies. In Pathway Bellows Ince.

v. Blanchette, 630 F.2d 900 (2d Cir. 1980), the Second Circuit did

not explicitly hold that a doilar amount was required. Instead it

held that the shipper’s claim was “inadequate in form” when the

relevant portion of the shipper’s claim stated in its entirety that

“the purpose of this letter is to state, in writing, that we are in

the process of filing a claim for freight damage.” Jd. at 901, 904.

As we have explained, it is not the lack of a dollar amount that

dooms such claims, rather such claims are inadequate because

they do not provide a carrier with any information about the

nature of the damage incurred, or the extent of the carrier’s

liability. In addition, such claims are potentially open-ended in

the sense that they do not indicate to the carrier when, or how,

the shipper’s claim will be reduced to a dollar amount. In

Siemens Power Transmission & Distribution, Inc. v. Norfolk

Southern Ry. Co., 420 F.3d 1243, 1246 (11th Cir. 2005), the

(Continued on following page)

App. 20

IV. Conclusion

The District Court erred in concluding that the

Lewises’ request for reimbursement for additional

mortgage payments and loss incurred by virtue of the

decrease in the sale price of their Pennsylvania home

were not “determinable” claims under § 370.3(b)(3).

Hence, we will vacate the District Court’s order and

remand for further proceedings consistent with this

opinion.

Eleventh Circuit considered a claim that included an estimated

damages amount of $25,000, not a claim that entirely lacked a

dollar amount. The issue before the Eleventh Circuit was

whether “[§ 370.3(b)] could be construed to invalidate

estimated damages |claims] ... on the ground that such a

[claim] is not specified or determinable.” /d. at 1252. In the

course of deciding that estimated damages amounts were

permissible, the Eleventh Circuit noted that other circuit courts

had held a shipper’s claim invalid in “situations in which the

shipper provided the carrier with no damage amount at all.” Id.

(emphasis in original). However, contrary to Atlas’s contention,

nothing in Siemens indicates that the Eleventh Circuit adopted

the view that a dollar amount is always required. Instead, it

concluded that cases that did not include dollar amounts were

inapposite to the issue before it because the claim under consid-

cration included an estimated damages amount. /d. Thus,

Atlas’s reading of Siemens is overly broad.

App. 21

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2688

RICHARD J. LEWIS;

PATRICIA A. LEWIS

Appellants,

V

ATLAS VAN LINES, INC.

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 06-cv-1862)

District Judge: Honorable John E. Jones, III

Argued June 3, 2008

Before: FISHER, JORDAN, Circuit Judges,

and YOHN%, District Judge.

JUDGMENT

* Honorable William H. Yohn, Jr., Senior Judge, United

States District Court for the Eastern District of Pennsylvania,

sitting by designation.

App. 22

This cause came on to be considered on the

record from the United States District Court for the

Middle District of Pennsylvania and was argued on

June 3, 2008. On consideration whereof, it is now

hereby

ORDERED and ADJUDGED by this Court that

the Judgment of the District Court entered on May

30, 2007, be the same is hereby VACATED and

REMANDED, all of the above in accordance with the

opinion of this Court. Costs to be taxed against Appel-

lee.

ATTEST:

/s/ Marcia M. Waldron |

Marcia M. Waldron, Clerk

Dated: September 9, 2008

App. 23

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD J. LEWIS AND

PATRICIA A. LEWIS,

Plaintiffs, - No. 4:CV 06-1862

V. _ Judge Jones

ATLAS VAN LINES, INC. .

Defendant.

MEMORANDUM

May 30, 2007

THE BACKGROUND OF THIS MEMORANDUM

IS AS FOLLOWS:

Pending before the Court Defendant Atlas Van

Lines, Inc.’s Motion for Reconsideration, or, in the

Alternative, Motion for Entry of Final Order to Per-

mit Filing of Interlocutory Appeal) (“the Motion”) (doe.

20) riled on February 8, 2007.

For the following reasons, the Motion will be

granted.

PROCEDURAL HISTORY:

On January 30, 2007, this Court issued a Memo-

randum and Order ruling that the Carmack Amend-

ment, 49 U.S.C. § 14706, did not control the type of

injuries sustained by the Plaintiffs as a result of the

App. 24

Defendant’s conduct and denying the Defendant’s

Motion to Dismiss.

Following the entry of our January 30, 2007

Memorandum and Order, the Defendant filed the

pending Motion, arguing that the Court committed a

clear error of law in holding that the Carmack

Amendment was inapplicable to the case sub judice.

The Motion has been fully briefed by the parties and

is therefore ripe for our review.

STANDARD OF REVIEW:

Motions for reconsideration should be granted

sparingly as federal courts have a strong interest in

the finality of judgments. Burger King Corp. v. New

England Hood & Duct Cleaning Co., 2000 U.S. Dist.

LEXIS 1022, at *2 (E.D. Pa. 2000). “The purpose of a

motion for reconsideration ... is to correct manifest

errors of law or fact or to present newly discovered

evidence.” Max’s Seafood Café v. Quinteros, 176 F.3d

669, 677 (3d Cir. 1999) (quoting Harsco Corp. v.

Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert.

denied, 476 U.S. 1171 (1986)). “Accordingly, a judg-

ment may be altered or amended if the party seeking

reconsideration shows at least one of the following

grounds: (1) an intervening change in the controlling

law; (2) the availability of new evidence that was not

available when the court granted the motion; or (3)

the need to correct a clear error of law or fact or to

prevent manifest injustice.” Jd. (citing North River

Ins. Co. v. CIGNA Retnsurance Co., 52 F.3d 1194,

App. 25

1218 (3d Cir. 1995)). “A motion for reconsideration is

not to be used as a means to reargue matters already

argued and disposed of or as an attempt to relitigate

a point of disagreement between the Court and the

litigant.” Abu-Jamal v. Horn, 2001 WL 1609761, at *9

(E.D. Pa. 2001).

FACTUAL BACKGROUND:

Plaintiffs Richard J. and Patricia A. Lewis

(“Plaintiffs”) entered into a contract to sell their

residence at 3143 Seaks Run Road, Glen Rock, York

County, Pennsylvania, with a settlement to be held

before August 27, 2004. The sales agreement provided

that the Plaintiffs would deliver “a vacant building”

at the time of the closing. In order to transport their

household possessions from their home in Pennsyl-

vania to their new home in New York, the Plaintiffs

entered into a contract with Warners Moving and

Storage (“Warners”), an agent of the Defendant with

Defendant Atlas Van Lines, Inc. (“Atlas”). Warner was

to box the household belongings of the Plaintiffs, load

the same on one or more appropriate motor vehicles,

and deliver the same to the Plaintiffs’ new residence

in Alpine, New York.

A letter memorializing this agreement, dated

July 27, 2004, was issued and executed by a sales

representative of Warners. In pertinent part, the

letter agreement provided as follows:

This letter is to confirm that Warners Mov-

ing and Storage will arrive at your home on

App. 26

8/23 & 8/24 to box the household belongings

with loading the household effects on 8/25 &

8/26. Delivery is scheduled for 8/31 or 9/1.

(Rec. Doc. 1, Ex. 2).

Plaintiffs allege that pursuant to the contract,

packers from Warners appeared on August 23 and 24,

2004 and boxed up the household belongings. At

approximately 12:00 noon on August 25, 2004,

Warners delivered a moving van to the Plaintiffs’

Pennsylvania residence and Warners engaged in

loading household belongings into the van until 5:00

p.-m., at which time Warners advised the Plaintiffs

that the moving van would be taken back to Warners’

place of business because the tractor and crew were

needed to handle a move to North Carolina on August

26, 2004. (Complaint, 914).

On August 26, 2004, Warners failed to appear

and Plaintiffs attempted several times to contact

Warners. Plaintiffs spoke with Joe Kilgore (“Kilgore”),

who allegedly told them that Warners was “working

on it and we'll take care of you.” (Affidavit of Richard

J. Lewis, Rec. Doc. 12, Ex. A at 75). Jo one appeared

on behalf of Warners on August 27, 2004 to complete

the loading of the van with Plaintiffs’ household

belongings. Plaintiffs allege they contacted Warners

on August 27, 2004 and spoke to Jeff Warner at

approximately 12:00 noon. Mr. Warner advised the

Plaintiffs that there were no licensed drivers avail-

able to deliver a moving van to the Plaintiff’s resi-

dence. (Complaint, 416). Plaintiffs alleged that

App. 27

Plaintiff Richard Lewis told Jeff Warner that his

“company was jeopardizing the sale of [his] property

and that ‘[he] would hold them responsible.’” (Plain-

tiff’s Aff., 46).

Because the Plaintiffs were unable to comply

with the terms of the agreement of sale of their

Pennsylvania residence by delivering a vacant home

to the purchasers, they were in default under the

sales agreement and the purchasers terminated the

transaction at approximately 5:00 p.m. on August 27,

2004. (Complaint, 917). Plaintiffs allege that they

contacted Mr. Warner a second time on August 27,

2004 and told him that the closing was not occurring

because the house was not vacant and were informed

that “the best he could do was to guarantee every-

thing would be out by 12:00 noon on Saturday, August

28, 2004.” Warners delivered a moving van to the

Plaintiffs’ residence on August 28, 2004 and Warners’

employees worked until approximately 9:00 p.m., and

completed loading the next day. (Plaintiff’s Aff. 7{7-

8).

Plaintiffs’ interstate shipment was moved pursu-

ant to Atias’ Household Goods Bill of tading and

Freight Bill Number C64174. (Rec. Doc. 5, Ex. B).

Plaintiffs allege that they were first shown the Bill of

Lading on August 26, 2004, when Plaintiff Richard

Lewis signed the document indicating he reviewed

the items to be shipped. Plaintiffs further allege that

it was signed again by Plaintiff Richard Lewis on

September 3, 2004 when the items were delivered in

New York.

App. 28

On October 26, 2004, Plaintiffs’ attorney sent a

letter to the Defendant making a claim for the losses

arising out of the breached contract, identifying those

losses as “loss of profit on the sale of their residence,

additional mortgage payments and that Mr. and Mrs.

Lewis have had to pay on two mortgages on their

Pennsylvania residence which otherwise would have

been paid off at closing, and various other miscella-

neous expenses they would not have otherwise in-

curred.” The letter goes on to explain that an exact

number for the loss could not be provided “until they

are able to sell their Pennsylvania residence.” (Rec.

Doc. 11, Ex. 2).

In response to the October 26, 2004 letter,

Warners, through counsel, sent a letter to Plaintiffs’

attorney dated November 4, 2004, wherein receipt of

the October 26, 2004 letter was acknowledged.

Warners’ letter requested additional information and

documentation from Plaintiffs in an effort to evaluate

the claim. (Rec. Doc. 5, Ex. D).

Plaintiffs allege that their Pennsylvania property

was sold on June 3, 2005 pursuant to an Agreement

of Sale executed on March 14, 2005. On November 9,

2005, Plaintiffs sent a letter to Defendant fully ex-

plaining the damages after the sale of Plaintiffs’

residence and providing a_ detailed spreadsheet

showing expenses incurred and losses because of the

breached contract. (Rec. Doc. 11, Ex. 4).

App. 29

DISCUSSION:

The Defendants argue that the actions and

alleged omissions related to the packing and loading

of Plaintiffs’ goods — and the alleged resultant failure

to remove all of the goods from the Plaintiffs’ Penn-

sylvania residence — are clearly and unquestionably

within the scope of the Carmack Amendment and this

Court’s ruling to the contrary was a clear error of law.

The Defendants submit that the Court’s analysis of

whether the July 27, 2004 letter constituted a sepa-

rate “operative document” which controlled the

packing of Plaintiffs’ household goods is misplaced,

because the packing and loading services provided by

the Defendant are clearly within the exclusive scope

of the Carmack Amendment.

A. The Carmack Amendment

In 1906, Congress enacted the Carmack Amend-

ment which created a national policy regarding an

interstate carrier’s liability for damages arising from

the interstate transportation of goods. See 49 U.S.C.

§ 14706; New York, New Haven & Hartford Railroad

Co. v. Nothnagle, 346 U.S. 128, 131 (1953). The

Carmack Amendment “codifies the common-law rule

making a carrier liable, without proof of negligence,

for all damage to the goods transported by it, unless

it affirmatively shows that the damage was occa-

sioned by the shipper, acts of God, the public enemy,

public authority, or the inherent vice or nature of the

App. 30

commodity.” Secretary of Agriculture v. United States,

350 U.S. 162, 166 n. 9 (1956).

The Carmack Amendment provides the exclusive

remedy against an interstate common carrier for

breach of a carriage contract. Diamond Transp.

Group, Inc. v. Emerald Logistics Solutions, Inc., 2006

U.S. Dist. LEXIS 42918, *7 (E.D. Pa.). Under the

Carmack Amendment, carriers are fully liable for

actual loss or injury to property. Carmana Designs,

Lid. v. North Amer. Van Lines, Inc., 943 F.2d 316, 319

(3d Cir. 1991). To establish a prima facie case against

a carrier under the Carmack Amendment, a shipper

must prove (1) delivery of goods to the initial carrier

in good condition; (2) damage of the goods before

delivery to their final destination; and (3) the amount

of damages. Paper Magic Group, Inc. v. J.B. Hunt

Transport, Inc., 318 F.3d 458, 461 (3d Cir. 2003).

“Packing” and “loading” of household goods are

considered “transportation services” that fall within

the scope of the Carmack Amendment. 49 U.S.C.

§ 13102 specifically provides that “handling, packing

[and] u.»acking” are services included within the

definition of “transportation” for purposes of Car-

mack. Additionally, 49 U.S.C. § 13102(12) provides

that a “household goods motor carrier” offers within

its scope of services “protective packing and unpack-

ing of individual items at personal residences” and

“loading and unloading at personal residences.”

The scope of the Carmack Amendment's coverage

is broad. The United States Supreme Court succinctly

App. 31

described the breadth of the Carmack Amendment in

New York, Philadelphia and Norfolk R.R. Co. uv.

Peninsula Produce Exch. Of Md., 240 U.S. 34, 38

(1916), when it stated that the Carmack Amendment

is “comprehensive enough to embrace all damages

resulting from any failure to discharge a carrier’s

duty with respect to any part of the transportation to

the agreed destination.”

B. Reconsideration Analysis

In our January 39, 2007 Memorandum and

Order, we concluded that the Carmack Amendment

did not govern this action because the type of injury

sustained by Plaintiffs was not contemplated by

Carmack. Within the instant Motion, Defendants

argue that the alleged actions, omissions and result-

ing injuries are within the scope of the Carmack

Amendment.

The Defendant submits that once it began the

“transportation” services of packing and loading the

Plaintiffs’ household goods on August 23, 2004, the

controversy arising thereafter automatically fell

completely and exclusively within the scope of the

Carmack Amendment. Defendant further agues that

the existence or enforceability of the July 27, 2004

“letter agreement” does not affect whether the Car-

mack Amendment applies, but only bears relevance to

whether the Defendant has notice of the consequen-

tial damages which would apply if the transportation

services were not timely performed by it.

App. 32

As noted above, the Carmack Amendment is

“comprehensive” and specifically covers “packing” and

“loading” of household goods. See 49 U.S.C. § 13102.

Upon review of the Motion and supporting briefs, it is

clear to the Court that we committed an error of law

in holding that the Carmack Amendment did not

apply to the instant controversy inasmuch as our

reliance on the July 27, 2004 “letter agreement” was

misplaced. Plaintiffs’ damages, albeit unforeseen,

were incurred as result of the Defendant’s alleged

“failure to discharge [its] duty with respect to any

part of the transportation to the agreed destination.”

Peninsula Produce, 240 U.S. at 38.

C. Rule i2(b)(6) Analysis

In ruling that we erred in failing to apply the

Carmack Amendmeni. to the case sub judice, we must

now determine whether Plaintiffs’ claim should be

dismissed pursuant tio Fed. R. Civ. P. 12(b)(6) with the

overlay of the Carmack Amendment.

The Carmack Amendment itself does not state

what must be included in a claim against a carrier

but rather prohibits the carrier from shortening the

time for such a claim, stating that “a carrier may not

provide by rule, contract or otherwise a period of less

than nine months for filing a claim against it under

this section and a period of less than two years from

bringing a civil action against it under this section.”

49 U.S.C. § 14706(e). Federal regulations govern

the filing and processing of claims for delay in the

App. 33

delivery of household goods. See 49 C.F.R. § 370.

These regulations are incorporated into the Defen-

dant’s tariffs, which are incorporated into the Bill of

Lading. 49 C.F.R. § 370 sets forth the following re-

quirements for filing a delay claim:

(a) A written or electronic communication filed

within the time limits specified in the bill of

lading;

(b) The communication must contain facts suffi-

cient to identify the baggage or shipment at

issue;

(c) The communication must assert liability for

the loss, damage or delay against the carrier;

and,

(d) The communication must assert a claim for

the payment of a specified or determinable

amount of money.

Plaintiffs contend that the October 26, 2004

letter from Attorney Gent meets these requirements

because it contains facts sufficient to identify the

shipment, asserts liability and makes a claim for the

payment of a determinable amount of money, that

being “Mr. and Mrs. Lewis’ losses including, but are

not limited to, loss of profit on the sale of their resi-

dence, additional mortgage payments that Mr. and

Mrs. Lewis have had to pay on two mortgages on

their Pennsylvania residence which otherwise would

have heen paid off at closing, and various other

miscellaneous expenses they would not have other-

wise incurred.” Defendant argues that Plaintiffs

App. 34

failed to provide timely notice of a specified or deter-

minable claim to it or its agent within the time period

prescribed by the Bill of Lading.’ Defendant argues

that Plaintiffs, by their own admissions, became

aware of the “new” purchase of their Pennsylvania

residence when they executed the Agreement of Sale

on March 14, 2005, and therefore they had over two

and a half months (until June 3, 2005) to ascertain

their specific and determinable damages. Addition-

ally, Defendant argues that the closing on the Penn-

sylvania residence occurred exactly on June 3, 2005,

and surely the Plaintiffs would have knowr ‘nz exact

amount of damages allegedly caused by the delayed

pick up of their goods xt the completion of the closing

on June 3, 2005. Instead, Plaintiffs transmitted a

specified damages amount to the Defendant under

cover of letter dated November 9, 2005. The spread-

sheet indicating the amounts shows a transmission

date of July 8, 2005, but nonetheless, the Defendant

did not receive it until November 9, 2005.

There is a split in the federal circuit courts

concerning the standard to be used to determine

whether a shipper’s damages claim is sufficient. The

dueling standards are “strict compliance” and “sub-

stantial performance.” Plaintiffs cite to dicta con-

tained in S&H Hardware & Supply v. Yellow

’ Plaintiffs’ household goods were delivered to their resi-

dence in Alpine, New York on September 3, 2004. Pursuant to

the Bill of Lading, the deadline for filing a claim with the carrier

was nine months later, or June 3, 2005. (Rec. Doc. 5, Ex. B).

App. 35

Transport, 432 F.3d 550, 554 (3d Cir. 2005) to support

its contention that the Third Circuit has indicated it

would follow the “substantial performance” standard.

In Yellow Transport, the Third Circuit discussed the

applicability of the “substantial performance” stan-

dard as it related to whether a communication was to

be considered written notice at all. The case did not

address the contents, adequacy, sufficiency or deter-

minability of the notice of damages claim, and there-

fore is simply not persuasive on the point for which

Plaintiffs cite it.

The parties seem to concede that if the Court

utilized the “strict compliance” standard that Attor-

ney Gent’s letter would not be considered sufficient

notice because no firm dollar amount was included.

However, even if the Court applied the “substantial

performance” standard, the Plaintiffs have not cited

to, nor have we been able to find, any case where the

shipper provided the carrier with no dollar amount

whatsoever. What is clear is that the Plaintiffs failed

to provide the Defendant with any additional infor-

mation regarding the amount of their alleged claims

until November 9, 2005, which was over sixteen

months from the date of the alleged delay in the

pickup of their household goods and over five months

from the deadline created by the Bill of Lading. This

delay in communication occurred even though the

Plaintiffs knew of the sale price of their Pennsylvania

residence when they executed the Agreement of Sale

App. 36

on March 14, 2005 and closed on the sale on June 3,

2005.’ We can find no reason to excuse the Plaintiffs’

delay in communicating the specified damages to the

Defendant. Because Plaintiffs’ notice was insufficient

as a matter of law, their claim is time-barred and

shall be dismissed.

CONCLUSION:

Accordingly, for the foregoing reasons, we shall

grant the Defendant’s Motion as we made a clear

error of law in holding that the Carmack Amendment

did not apply to the instant action. In applying the

Carmack Amendment to the matter, we find that the

Plaintiffs have failed to state a claim upon which

relief can be granted. Their notice to the Defendant

was insufficient as a matter of law under Carmack

because it failed to state specified or determinable

damages. Therefore, the action shall be dismissed. An

appropriate Order shall issue.

* While an exception to timely notice is available to a

shipper who cannot, with “reasonable diligence” ascertain the

extent of its Joss, this is certainly not the case here for the

reasons stated herein. See Cherkis v. Atlas Van Lines, 59

F. Supp. 2d 203, 207 (D. Mass. 1999).

App. 37

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD J. LEWIS AND : No. 4:CV 06-1862

PATRICIA A. LEWIS,

Plaintiffs,

|

.

| ATLAS VAN LINES, INC.

Defendant.

Judge Jones

ORDER

May 30, 2007

In conformity with the Memorandum issued in

the above-captioned matter on today’s date, it is

hereby ORDERED that:

1. Defendant’s Motion for Reconsideration

(doc. 20) is GRANTED to the extent that

the Carmack Amendment applies to the

instant matter.

2. This action is DISMISSED for failure to

state a claim upon which relief can be

granted pursuant to Fed. R. Civ. P.

12(b)(6).

3. The Clerk shal! CLOSE the file on this

case.

/s/ John E. Jones III

John E. Jones III

United States District Judge

App. 38

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2688

RICHARD J. LEWIS;

PATRICIA A. LEWIS

Appellants,

Vv.

ATLAS VAN LINES, INC.

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 06-cv-1862)

District Judge: Honorable John E. Jones, III

SUR PETITION FOR REHEARING

WITH SUGGESTION FOR

REHEARING EN BANC

Present: SCIRICA, Chief Judge, SLOVITER,

McKEE, RENDELL, BARRY, 4MBRO,

FUENTES, SMITH, FISHER, CHAGARES,

App. 39

JORDAN, and HARDIMAN, Circuit Judges,

and YOHN*, District Judge

The petition for rehearing filed by appellants in

the above-entitled case having been submitted to the

judges who participated in the decision of this Court

and to ali the other available circuit judges of the

circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in

regular service not having voted for rehearing, the

petition for rehearing by the panel and the Court en

banc, is denied.

BY THE COURT:

/s/ Kent A. Jordan

Circuit Judge

Dated: October 9, 2008

TYW/smw/ce: James J. West, Esq.

James A. Wescoe, Esq.

* Honorable William H. Yohn, Jr., Senior Judge, United

States District Court for the Eastern District of Pennsylvania,

sitting by designation, limited to panel vote only

App. 40

STATUTES AND REGULATIONS INVOLVED

49 U.S.C. § 14706. Liability of carriers under

receipts and bills of lading

(a) General liability. -

(1) Motor carriers and freight forwarders.

—Acarrier providing transportation or service subject

to jurisdiction under sub-chapter I or III of chapter

135 shall issue a receipt or bill of lading for property

it receives for transportation under this part. That

carrier and any other carrier that delivers the prop-

erty and is providing transportation or service subject

to jurisdiction under subchapter I or III of chapter

135 or chapter 105 are liable to the person entitled to

recover under the receipt or bill of lading. The liabil-

ity imposed under this paragraph is for the actual

loss or injury to the property caused by (A) the receiv-

ing carrier, (B) the delivering carrier, or (C) another

carrier over whose line or route the property is trans-

ported in the United States or from a place in the

United States to a place in an adjacent foreign coun-

try when transported under a through bill of lading

and, except in the case of a freight forwarder, applies

to property reconsigned or diverted under a tariff

under section 13702. Failure to issue a receipt or bill

of lading does not affect the liability of a carrier. A

delivering earlier is deemed to be the carrier perform-

ing the line-haul transportation nearest the destina-

tion but does not include a carrier providing only a

switching service at the destination.

App. 41

(2) Freight forwarder. -— A freight forwarder

is both the receiving and delivering carrier. When a

freight forwarder provides service and uses a motor

carrier providing transportation subject to jurisdic-

tion under subchapter I of chapter 135 to receive

property from a consignor, the motor carrier may

execute the bill of lading or shipping receipt for the

freight forwarder with its consent. With the consent

of the freight forwarder, a motor carrier may deliver

property for a freight forwarder on the freight for-

warder’s bill of lading, freight bill, or shipping receipt

to the consignee named in it, and receipt for the

property may be made on the freight forwarder’s

delivery receipt.

(b) Apportionment. - The carrier issuing the

receipt or bill of lading under subsection (a) of this

section or delivering the property for which the

receipt or bill of lading was issued is entitled to

recover from the carrier over whose line or rovie the

loss or injury occurred the amount required to be paid

to the owners of the property, as evidenced by a

receipt, judgment, or transcript, and the amount of

its expenses reasonably incurred in defending a civil

action brought by that person.

(c) Special rules. -

(1) Motor carriers. -

(A) Shipper waiver. — Subject to the provi-

sions of subparagraph (B), a carrier providing transpor-

tation or service subject to jurisdiction under

subchapter I or III of chapter 135 may, subject to the

App. 42

provisions of this chapter (including with respect to a

motor carrier, the requirements of section 13710(a)),

establish rates for the transportation of property

(other than household goods aescribed in section

13102(10)(A)) under which the liability of the carrier

for such property is limited to a value established by

written or electronic declaration of the shipper or by

written agreement between the carrier and shipper if

that value would be reasonable under the circum-

stances surrounding the transportation.

(B) Carrier notification. - If the motor

carrier is not required to file its tariff with the Board,

it shall provide under section 13710(a)(1) to the

shipper, on request of the shipper, a written or elec-

tronic copy of the rate, classification, rules and prac-

tices upon which any rate applicable to a shipment, or

agreed to between the shipper and the carrier, is

based. The copy provided by the carrier shall clearly

state the dates of applicability of the rate, classifica-

tion, rules or practices.

(C) Prohibition against collective estab-

lishment. — No discussion, consideration, or approval

as to rules to limit liability under this subsection may

be undertaken by carriers acting under an agreement

approved pursuant to section 13703.

(2) Water carriers. - If loss or injury to prop-

erty occurs while it is in the custody of a water car-

rier, the liability of that carrier is determined by its

bill of lading and the law applicable to water trans-

portation. The lability of the initial or delivering

App. 43

carrier is the same as the liability of the water car-

rier.

(d) Civil actions. -

(1) Against delivering carrier. - A civil

action under this section may be brought against a

delivering carrier in a district court of the United

States or in a State court. Trial, if the action is

brought in a district court of the United States is ina

judicial district, and if in a State court, is in a State

through which the defendant carrier operates.

(2) Against carrying responsible for loss. -

A civil action under this section may be brought

against the carrier alleged to have caused the loss or

damage, in the judicial district in which such loss or

damage is alleged to have occurred.

(3) Jurisdiction of courts. —- A civil action

under this section may be brought in a United States

district court or in a State court.

(4) Judicial district defined. - In this sec-

tion, “judicial district” means —

(A) in the case of a United States district court,

a judicial district of the United States; and,

(B) in the case of a State court, the applicable

geographic area over which such court exercises

jurisdiction.

App. 44

(e) Minimum period for filing claims. -

(1) In general. — A carrier may not provide by

rule, contract, or otherwise, a period of less than 9

months for filing a claim against it under this section

and a period of less than 2 years for bringing a civil

action ageinst it under this section. The period for

bringing a civil action is computed from the date the

carrier gives a person written notice that the carrier

has disallowed any part of the claim specified in the

notice.

(2) Special rules. — For the purposes of this

subsection —

(A) an offer of comprcemise shall not consti-

tute a disallowance of any part of the claim unless the

carrier, in writing, informs the claimant that such

part of the claim is disallowed and provides reasons

for such disallowance; and

(B) communications received from a car-

rier’s insurer shall not constitute a disallowance of

any part of the claim unless the insurer, in writing,

informs the claimant that such part of the claim is

disallowed, provides reason for such disallowance,

and informs the claimant that the insurer is acting on

behalf of the carrier.

(f) Limiting liability of household goods carri-

ers to declared value. -

(1) In general. - A carrier or group of carriers

subject to jurisdiction under subchapter I or IIl

of chapter 135 may petition the Board to modify,

App. 45

eliminate, or establizh rates for the transportation of

household goods under which the liability of the

carrier for that property is limited to a value estab-

lished by written declaration of the shipper or by a

written agreement.

(2) Full value protection obligation. - Unless

the carrier receives a waiver in writing under para-

graph (3), a carrier’s maximum liability for household

goods that are lost, damaged, destroyed, or otherwise

not delivered to the final destination is an amount

equal to the replacement value of such goods, subject

to a maximum amount equal to the declared value of

the shipment and to rules issued by the Surface

Transportation Board and applicable tariffs.

(3) Application of rates. -- The released rates

estabiished by the Board under paragraph (1) (com-

monly known as “released rates”) shall not apply to

the transportation of household goods by a carrier

unless the liability of the carrier for the full value of

such household goods under paragraph (2) is waived,

in writing, by the shipper.

(g) Modifications and reforms. —

(1) Study. - The Secretary shail conduct a

study to determine whether any modifications or

reforms should be made to the loss and damage

provisions of this section, including those related to

limitation of lability by carriers.

(2) Factors to consider. - In conducting the

study, the Secretary, at a minimum, shall consider —

App. 46

(A) the efficient delivery of transportation

services;

(B) international and intermodal harmony;

(C) the public interest; and

(D) the interest of carriers and shippers.

(3) Report. ~ Not later than 12 months after

January 1, 1996, the Secretary shall submit to Con-

gress a report on the results of the study, together

with any recommendations, for implemei.ting modifi-

cations or reforms identified by the Secretary as

being appropriate.

Part 370-PRINCIPLES AND PRACTICES

FOR THE INVESTIGATION AND VOLUNTARY

DISPOSITION OF LOSS AND DAMAGE

CLAIMS AND PROCESSING SALVAGE.

$370.1 Applicability of regulations.

The regulations set forth in this part shall govern

the processing of claims for loss, damage, injury, or

delay to property transported or accepted for trans-

portation, in interstate or foreign commerce, by each

motor carnmer, water carrier, and freight forwarder

(hereinafter called carrier), subject to 49 U.S.C.

subtitle IV, part B.

$270.3 Filing of claims.

(a) Compliance with regulations. A claim for

loss or damage to baggage or for loss, damage, injury

App. 47

or delay to cargo, shall not be voluntarily paid by a

carrier unless filed, as provided in paragraph (b) of

this section, with the receiving or delivering carrier,

or carrier issuing the bill of lading, receipt, ticket, or

baggage check, or carrier on whose line the alleged

loss, damage, iniury or delay occurred, within the

specified time limits applicable thereto and as other-

wise may be required by law, the terms of the bill of

lading or other contract of carriage, and all tariff

provisions applicable thereto.

(b) Minimum filing requirements. A written or

electronic communication (when agreed to by the

carrier and shipper or receiver involved) from a claim-

ant, filed with a proper carrier within the time limits

specified in the bill of lading or contract of carriage or

transportation and:

(1) Containing facts sufficient to identify the

baggage or shipment (or shipments) of prop-

erty,

(2) Asserting liability for alleged loss, damage,

injury or delay, and,

(3) Making claim for the payment of a specified

or determinable amount of money, shall be

considered as sufficient complhance with the

provisions for filing claims embraced in the

bill of lading or other contract of carriage;

Provided, however, That where claims are

electronically handled, procedures are estab-

lished to ensure reasonable carrier access to

supporting documents.

App. 48

(c) Documents not constituting claims. Bad

order reports, appraisal reports of damage, notations

of shortage or damage, or both, on freight bills, deliv-

ery receipts, or other documents, or inspections

reports issued by carriers or their inspection agen-

cies, whether the extent of loss or damage is indicated

in dollars or cents or otherwise, shall, standing alone,

not be considered by carriers as sufficient to comply

with the minimum claim filing requirements specified

in paragraph (b) of this section.

(d) Claims filed for uncertain amounts. When-

ever a claim is presented against a proper carrier for

an uncertain amount, such as $100 more or less, the

carrier against whom such claim is filed shall deter-

mine the condition of the baggage or shipment in-

volved at the time of delivery by it, if it was delivered,

and shall ascertain as nearly as possible the extent, if

any, of the loss or damage for which it may be respon-

sible. It shall not, however, voluntarily pay a claim

under such circumstances unless and until a formal

claim is filed in writing for a specific or determinable

amount of money shall have been filed in accordance

with the provisions of paragraph (b) of this section.

(e) Other claims. If investigation of a claim

develops that one or more other carriers has been

presented with a similar claim on the same shipment,

the carrier investigating such claim shall communi-

cate with each such other carrier and, prior to any

agreement entered into between or among them as to

the proper disposition of such claim or claims, shall

notify all claimants of the receipt of conflicting or

App. 49

overlapping claims and shall require further substan-

tiation, on the part of each claimant of his/her title to

the property involved or his/her right with respect to

such claim.

App. 50

IN THE COURT OF COMMON PLEAS OF

YORK COUNTY, PENNSYLVANIA

Richard J. Lewis & : NO.

Patricia A. Lewis :

XXX XXX XXX

Alpine, NY 14805

Plaintiffs

Vv. . Jury Trial Demanded

Atlas Van Lines, Inc.

1212 St. George Road

Evansville, IN 47711,

and

Defendant

COMPLAINT

NOW COMES, this 23rd day of August, 2006,

the Plaintiffs, Richard J. Lewis and Patricia A.

Lewis, by their attorneys, Douglas H. Gent, Es-

quive, and Eric R. Dutcher, Esquire, and file the

within Complaint, to wit:

1. Plaintiffs are adult individuals currently

residing at xxx xxx xxx, Alpine, NY 14805.

2. Defendant, Atlas Van Lines, Inc., (hereinaf-

ter referred to as “Atlas”) is an Indiana corporation

with its principal place of business located at 1212

St. George Road, Evansville, IN 47711. Atlas does

business in the Commonwealth of Pennsylvania by

providing moving and storage services to individual

homeowners.

App. 51

3. Defendant does business in York County,

Pennsylvania through its agent, Warners Moving and

Storage (hereinafter referred to as “Warner”) having

its principal place of business located on West Coun-

try Club Road, Red Lion, PA 17356.

4. Warners engages in the business of moving

and storing personal property including moving

household goods and other personalty of individuals

who are moving from one residence to another resi-

dence both intrastate and interstate. Warners is a

local agent for Atlas.

5. Plaintiffs owned and lived in a personal

residence located at xxx xxx xxx xxx, Glen Reck, PA

17327.

6. Plaintiffs entered into an Agreement of Sale

dated July 19, 2004, with Bruce D. and Crystal L.

Gibbons for the sale of the Plaintiffs’ residence lo-

cated at xxx xxx xxx xxx, Glen Rock, PA. Said Agree-

ment of Sale established that settlement was to occur

on or before August 27, 2004. A copy of said Agree-

ment of Sale is attached hereto as Exhibit A and

incorporated herein by reference as though set forth

in full.

Land

7. The Plaintiffs intended to move to their new

residence located at xxx xxx xxx, Alpine, NY 14805.

8. Paragraph 15 of the Agreement of Sale

states, in pertinent part, as follows:

App. 52

“a. Title shall be tendered by way of war-

ranty deed and possession is to be delivered

by keys to a vacant building... ”.

9. Pursuant to the Plaintiffs’ obligation under

paragraph 15 of the Agreement of Sale, and in order

to transport their personalty to their new residence in

Alpine, New York, the Plaintiffs entered into an oral

agreement with Warners Moving & Storage, as agent

for Atlas, to box the household belongings of the

Plaintiffs, load the same on one or more appropriate

motor vehicles, and deliver the same to the Plaintiffs’

new residence in Alpine, New York. It is believed, and

therefore averred that said agreement was an oral

agreement subsequently memorialized in writing by a

letter dated July 27, 2004, issued and executed by

Warners. A copy of said letter is attached hereto and

incorporated herein by reference as Exhibit B.

10. The terms of the contract set forth in the

letter of July 27, 2004, specifically state that Warners

would be at the Plaintiffs’ Pennsylvania residence on

August 23 and August 24 to box the household be-

longings, load the same onto one or more moving vans

on August 25 and August 26, 2004, and deliver the

same to the new residence in Alpine, New York on

September 1, 2004. Attached to said letter was a

document entitled “Household Goods Transportation

Estimate for Richard Lewis”.

ll. The letter of July 27, 2004, identifies

Warners as an interstate agent for Atlas.

App. 53

12. Settlement on the sale of the Plaintiffs’

Pennsylvania residence was scheduled for 4:00 p.m.

on August 27, 2004.

13. Pursuant to the terms of the contract,

packers for Warners appeared on August 23 and 24,

2004, to box up household belongings.

14. At approximately 12:00 noon on August 25,

2004, Warners delivered a moving van to the Plain-

tiffs residence and Warners engaged in loading

household belongings into the van until 5:00 p.m. At

said time, Warners advised the Plaintiffs that the

moving van would be taken back to Warners place of

business because the tractor and the crew were

needed to handle a move to North Carolina on August

26, 2004.

15. Warners failed to appear on August 26, 2004

to load the moving van in accordance with its contrac

tual obligations to the Plaintiffs. On August 26, 2004,

the Plaintiffs attempted several times to contact

Warners speaking with one Joe Kilgore, who did not

provide any satisfactory response.

16. No one appeared on behalf of Warners on

August 27, 2004, to complete loading the van with the

Plaintiffs household belongings. The Plaintiffs con-

tacted Warners on August 27, 2004, speaking with

one Jeff Warner at approximately 12:00 noon. Mr.

Warner advised the Plaintiffs that there was no

licensed driver available to deliver a moving van to

the Plaintiffs’ residence to load household effects

App. 54

17. As a result of the Plaintiffs’ inability to

comply with the terms of the Agreement of Sale for

their residence by delivering a vacant house to Mr.

and Mrs. Gibbons, the Plaintiffs were in default

under the Agreement of Sale. Mr. and Mrs. Gibbons

terminated the transaction at approximately 5:00

p.m. on August 27, 2004.

18. Warners delivered a moving van to the

Plaintiffs’ residence at approximately 9:00 a.m. on

August 28, 2004, and worked until approximately

9:00. p.m. At that time Warners advised the Plaintiffs

that a second moving van would be needed.

19. Warners delivered a second moving van to

the Plaintiffs’ residence on August 29, 2004, and

completed loading the household belongings of the

Plaintiff.

20. Warners delivered the Plaintiffs household

belongings to the Plaintiffs’ residence in Alpine, New

York on or about September 3, 2004.

21. On August 26, 2004, at approximately

5:00 p.m., Warners presented the Plaintiffs with a

Household Goods Bill of Lading and Freight Bill, a

copy of which is attached hereto as Exhibit C, and

incorporated herein by reference as though set forth

in full. Said Household Goods Bill of Lading and

Freight Bill indicates that the Plaintiffs had previ-

ously paid $10,473.19 under the terms of the contract

to guarantee peiformance by Warners of its obliga-

tions under its contract with the Plaintiffs. The

Plaintiff Richard J. Lewis was requested to execute a

App. 55

box on the left hand side of the Bill of Lading on

August 26, 2004, addressing the issue of adding items

to be shipped after a “survey” had been completed by

Warners of the quantity of household belongings to be

shipped. Subsequently, on September 3, 2004, the

Plaintiff Richard J. Lewis signed the bottom of the

Bill of Lading acknowledging receipt of shipment and

that the goods were in good condition.

22. The Plaintiffs immediately re-listed their

Pennsylvania residence for sale. On or about March

14, 2005, the Plaintiffs entered into a new Agreement

of Sale with Charles E. and Constance B. Patterson

for the sale of the Pennsylvania residence. Settlement

on the subsequent sale took place on June 3, 2005. A

copy of the Agreement of Sale is attached hereto as

Exhibit D and incorporated herein by reference as

though set forth in full.

23. The first Agreement of Sale was for a sale

price of $315,000.00 and the subsequent sale price

was $280,000.00 resulting in a loss to the Plaintiffs

on the sale of their Pennsylvania residence in the

amount of $35,000.00.

24. t the time of the sale of the Plaintiffs’

residence, they had a first mortgage with GMAC

Mortgage Corporation and a second mortgage with

Sovereign Bank. As a result of the delay in the sale

of the Plaintiffs’ Pennsylvania residence they paid

additional interest on their first mortgage in the

amount of $7,772.39 and on their second mortgage in

the amount of $1,070.78. As a result of the delay in

App. 56

the sale of the Plaintiffs’ Pennsylvania residence, the

Plaintiffs incurred the following additional costs:

a. Additional electric utility bills $435.00;

b. Additional telephone bills $249.20;

c. Additional ADT Security System charges

$206.55;

d. Additional homeowner’s insurance premium

$339.03;

e. Additional gas utility bills $371.70;

f. Additional County and Borough real estate

taxes $570.69;

g. Additional school district real estate taxes

$2,549.97.

25. Asa result of the reduced sale price on the

sale that took place on June 3, 2005, the Plaintiffs.

incurred a reduced cost for real estate commissions

and realty transfer taxes in the amount of $1,050.00.

Further, at the closing that took place on June 3,

2005, the Plaintiffs received a reimbursement of

$733.05 as a proration of the above-identified real

estate taxes.

26. The new residence of the Plaintiffs located

in Alpine, New York was a newly built house. The

Plaintiffs obtained a construction mortgage to con-

struct said house. If the sale of the Plaintiffs’ Penn-

sylvania residence had closed on August 27, 2004, as

planned, the Plaintiffs would have used a portion of

App. 57

the net proceeds to pay off the construction mortgage

in the amount of $87,946.48.

27. Asa result of the failure to close on the sale

of the Plaintiffs’ Pennsylvania residence on August

27, 2004, the Plaintiffs had to withdraw $87,946.48

from a 401(k) retirement plan to pay off the construc-

lion mortgage. This resulted in the Plaintiffs incur-

ring unplanned federal income taxes in the amount of

$19,328.27 and New York State income taxes in the

amount of $5,825.93.

28. On or about October 26, 2004 through

Plaintiff’s legal counsel, Plaintiff notified Warners,

agent for Atlas that the Plaintiffs would be present-

ing a claim for losses incurred by reason of Warners

and Atlas’ failure to perform their contractual obliga-

tions to the Plaintiff and/or arising out of their negli-

gence in failing to properly provide for adequate

licensed drivers and trucks to perform their contrac-

tual obligations on a timely basis.

29. On or about November 9, 2005, the Plain-

tiffs issued a letter to Warners and Atlas setting forth

in detail the extent of the Plaintiffs’ losses and a

demand for payment of the same. The Plaintiffs had

previously advised the Defendants that the specifics

of their claim would be presented subsequent to the

final sale of the Plaintiffs’ Pennsylvania residence.

30. On or about December 15, 2005, the Plain-

tiffs, through ilegal counsel, received notice from Atlas

and Warners rejecting the Plaintiffs’ claim for dam-

ages.

App. 58

31. The amount in controversy exceeds the

jurisdictional limits for compulsory arbitration in

York County, Pennsylvania.

COUNT I

LEWIS V. ATLAS

BREACH OF CONTRACT

32. Paragraph 1 through 31 are incorporated

herein by reference as though set forth in full.

33. Pursuant to the terms of the contract be-

tween the Plaintiffs and Warners, interstate agent for

Atlas, the Defendant was obligated to provide suffi-

cient personnel and moving vans no later than Au-

gust 25 and August 26, 2004 to fully and completely

load all of the household items and personalty of the

Plaintiffs for transport to Alpine, New York.

34. The Defendant breached the contract with

the Plaintiffs by failing to provide sufficient personnel

and moving vans on August 25 and August 26 to

perform its contractual obligations to the Plaintiffs.

35. The Defendant failed to provide adequate

personnel and moving vans until August 28, 2004.

36. As a result of the Defendant’s breach of

contract, the Plaintiffs have been damaged in the

amount of $71,729.91.

App. 59

37. Despite repeated requests, the Defendant

has failed to pay said sum to the Plaintiffs to compen-

sate for their losses arising out of the Defendant’s

breach of contract.

WHEREFORE, the Plaintiffs respectfully re-

quest the Honorable Court to enter judgment in their

favor and against the Defendant in the amount of

$71,729.91 plus reasonable attorney’s fees, costs,

expenses, and pre and post-judgment interest.

COUNT II

LEWIS V. ATLAS

NEGLIGENCE

38. Paragraphs 1 through 37 are incorporated

herein by reference as though set forth in full.

39. The Defendant, upon entering into a con-

tract with the Plaintiffs to move the Plaintiffs’ house-

hold personalty from their Pennsylvania residence to

their New York residence, owed the Plaintiffs a duty

to provide adequate personnel, trucks and moving

vans on a timely basis to vacate the Pennsylvania

residence.

40. The Defendant knew, based upon several

communications from the Plaintiffs, that the Plain-

tiffs were selling their Pennsylvania residence, clos-

ing om August 27, 2004, and had to have the

Pennsylvania residence vacated before said date

STE Seer ee ee eR

App. 60

pursuant to the Plaintiffs contractual obligations

with the purchasers of the Pennsylvania residence.

41. The Defendant was negligent in the per-

formance of its contractual duties. The Defendant’s

negligence consisted of the following:

a. Failure to provide adequate personnel to

load the moving van(s) on a timely basis;

b. Failure to provide adequate personnel,

including, but not limited to a licensed driver to

deliver one or more moving vans to the Plaintiffs’

Pennsylvania residence to load Plaintiffs’ household

personalty;

c. Failure to provide adequate personnel to

transport the Plaintiffs’ household personalty from

the Pennsylvania residence to the New York resi-

dence no later than August 26 and/or August 27,

2004.

42. Asa result of the negligence of the Defen-

dant as set forth above, the Plaintiffs have incurred a

loss of $71,729.91.

43. The neghgence of the Defendant is the

proximate cause of the Plaintiffs’ losses.

WHEREFORE, the Plaintiffs respectfully re-

quest the Honorable Court to enter judgment in their

favor and against the Defendant in the amount of

App. 61

$71,729.91 plus reasonable attorney’s fees, costs,

expenses, and pre and post-judgment interest.

Respectfully submitted

BY: /s/ Douglas H. Gent

Douglas H. Gent, Esquire

Sup. Ct. I.D. #29964

1157 Eichelberger Street

Hanover, PA 17331

(717) 632-4040

Attorneys for the Plaintiff

VERIFICATION

I, Patricia A. Lewis, verify that the statements

made in this Petition are true and correct. I under-

stand that false statements herein are made subject

to the penaltics of 18 Pa.C.S. § 4904, relating to

unsworn falsification to authorities.

Date: 7-17-06 _—__" /s/ Patricia A. Lewis

Patricia A. Lewis

VERIFICATION

I, Richard J. Lewis, verify that the statements

made in this Petition are true and correct. I under-

stand that false statements herein are made subject

to the penalties of 18 Pa.C.S. § 4904, relating to

unsworn falsification to authorities.

Date: July 17, 2006 /s/ Richard J. Lewis

Richard J. Lewis

App. 62

IN THE COURT OF COMMON PLEAS

OF YORK COUNTY, PENNSYLVANIA

Richard J. Lewis & : NO.

Patricia A. Lewis

XXX XXX XXX

Alpine, NY 14805

Plaintiffs

Vv.

Atlas Van Lines, Inc.

1212 St. George Road

Evansville, IN 47711, and °

Warners Moving & Storage ;

P.O. Box 269

West Country Club Road

Red Lion, PA 17356

Defendants

: Jury Trial Demanded

CERTIFICATE OF SERVICE

The undersigned, being duly sworn, does hereby

state that a true and correct copy of the Complaint

was served by Certified Mail on Atlas Van Lines, Inc.,

to the following:

Todd A. Suter

Corporate Counsel

Atlas Van Lines, Inc.

1212 St. George Road

Evansville, IN 47711

App. 63

Respectfully submitted

BY: /s/ Douglas H. Gent

Douglas H. Gent, Esquire

Sup. Ct. I.D. #29964

1157 Eichelberger Street

Hanover, PA 17331

(717) 632-4040

Attorneys for the Plaintiff

Exhibit A

FORM#RAYAC-201

Rev, 08/03

AGREEMENT OF SALE

Form approved by REALTORS® Association of York and Adams Counties, Inc.

BROKER: Jack Gaughen ERA SALES ASSOCIATE = Mary Ann [Illegible]

Acting as: (¥) Buyer's Agent { ) Transaction Licensee

( ) Sub-Agent ( ) Dual Agent

( ) Designated Agent for Buyer with Broker as Dual Agent of Seller and Buyer

IN COOPERATION WITH

BROKER: CountryHome | SALES ASSOCIATE Ingrid Lochte

Acting as: (”) Sub-Agent { ) Transaction Licensee ( ) Dual Agent

( ) Designated Agent for Buyer with Broker es Dual Agent of Seller and Buyer

THIS AGREEMENT is made this 19th day of July 2004 _

1. PARTIES: Between Richard J. & Patricia Lewis

hereinafter called Seller, and Bruce D. & Crystal L. Gibbons

(residing at xxx xxx xxx, Md _____ Zip 21014 ) hereinafter called Buyer.

2. PROPERTY: Seller hereby agrees to sell and convey to Buyer, who hereby agrees to

purchase: ALL THAT CERTAIN tract of ground with improvements thercon, if any, known as

XXX XXX XXX XXX, Glen Rock MLS 20401088

Municipality SpringfieldTwp. _,County York State PA Zip 17327

Identification: (Tax [D#; Parcel #; Dead Book/Page) ES 3 3iF a 7

3. ZONING: The ZONING CLASSIFICATION of the property is Agric. _. Failure of this

Agreement to contain the zoning classification ‘except in cases where the property and each

parcel thereof, if subdividable, is zoned fully or primarily to permit single family dwellings)

shall render this Agreement voidable at the option of the buyer, and, if voided, any deposit

tendered by the Buyer shall be returned to the Buyer without any requirement for court

action.

4. PURCHASE PRICE: The purchase price is $ 210,000 to 315,000 Three Hundred Fifteen

Thousand and no/100_ Dollars) to be paid in cash or equivalent at time of settlement.

DEPOSITS: Security for the purchase is to be as follows:

a) Caslvcheck at signing of this Agreement. $ 1,000.00

¢

or

bi Cashcheck onorbefore

ch Note/other (specify! balance at illegible} — 3 309,000.00

6. FINANCING CONTINGENCY: This sale is contingent upon the following financing for

Buyer: 5815 First'|Legible}

a’ The amount of financing $290,000.00 is for aterm of 30 pees. The type of financing

Cony. (Fixed/Adjustable‘Insured! Interest rate of -; however, Buyer agrees to

accept the | interest rate as may be committed by the morte ve lender, nol to exceed a

maximum interest rate at 6.25’.

vg ddy

b) The Seller agrees to pay Buyer's closing costs, including prepaid expenses in the

maximum amount of -0- .

c) The maximum financing placement, origination, or loan discount fees, or similar charges,

to be paid by BUYER shall not exceed -0- % of loan amount.

d) Unless otherwise agreed by Seller, Buyer's financing shall not be contingent upon sale

or settlement of any real estate owned by Buyer.

¢) Buyer shall make a completed application including payment for appraisal and credit report

to a responsible lending institution on or before PREAPPROVED 7/24/04. Should the

Buyer fail to make such completed application within the specified time, it shall be the

option of the Seller to declare this Agreement of Sale null and void at which time all deposit

monies paid on account shall be forfeited to the Seller as liquidated damages and all copies

of this Agreement shall be returned to the Seller's agent for cancellation. Financing terms

as stated above cannot be changed without written agreement of all parties.

f} Awritten mortgage commitment must be obtained by 8-15-04. Ifa written commitment

is not received by the above date, Buyer and Seller agree to o extend the commitment date

until Seller terminates this Agreement in writing; and in such event, any deposit shall

he returned to Buyer.

ADDITIONAL TERMS AND CONTINGENCIES ARE;

a) Written acceptance of all parties must be obtained on or before: July 21, 2004

b) Settlement is to be made on or before August 27, 2004

c) Possession is to be delivered: At settlement

d) Payment of transfer taxes will be divided equally between Buyer and Seller.

e) All income and expenses, including but not limited to real estate taxes, rents, water, sewer

and refuse charges, condo fees, homeowners association fees and similar charges, public or

private, shall be prorated to date of (settlement/possession) on a fiscal year basis.

fi Beware home is safe locked for settlement on 8/27/04. Mlegible] will provide Buyer with a

illegible] at settlement.

FIXTURES, TREES, SHRUBBERY, ETC.: All plumbing, heating, air conditioning and

electrical systems and fixtures and systems appurtenant thereto and forming a part thereof,

antennas, masts and rotor systems; screens, storm windows and/or doors, shades, awnings,

blinds, drapery and curtain rods and hardware; radiator covers, kitchen cabinets, built-in

appliances and wall-to-wall carpet, all trees, shrubbery, and plantings now on property, garage

door openers, storage sheds, remaining heating and cooking fuels, excluding propane, stored on

the property at ime of settlement, all items included in the Seller Disclosure Statement, and

iIllegible| system, lillegible}, illegible], ‘legible} shed, [illegible . | illegible

are INCLUDED in the sale and purchase price. The following items are EXCLUDED from the sale:

water softener

None of the above-mentioned included items shall be removed by ' Seller from premises after

the date of this Agreement. Seller hereby warrants that Seller will deliver good title to all the

articles deseribed in this paragraph, and any other fixtures or items of personally specifically

scheduled to be ineluded in this sale

cg ‘ddy

DISCLOSURES/ANSPECTIONS IF ANY: Buyer acknowledges receipt of the mandatory Seller

Disclosure Statement —{Illegible}; (initial) and of the following indicated written disclosures

and/or addenda, all of which are made a part of this Agreement.

\¥) Disclosure and Inspection Addendum (| Lead-based Paint Brochure _

} Dual Agency Addendum | lead-based paint Testing Contingency

)} FHA Home Inspection Notice (¥) Disclosure of Affiliated Business Relaticnships |

( ) VA/FHA Amendatory Clause (¥) Addendum for Property Not Connected to

Certification Pubic Sewer

e3 __ (¥) {Thlegible]

10. ASSESSMENTS AND NOTICES: As of the acceptance date of this Agreement, Seller

1]

represents the following:

a) No public assessment or notice of a future public assessment for any matter including

water, sewer, sidewalk or curbs, has been made against the property.

b) Buyer acknowledges that taxes may increase due to change of assessment or millage

rates.

¢) Nocondominium or homeowners’ association assessments, if any, remain unpaid.

d) Seller has no knowledge of any notice by any governmental or public authority relating

to violations of zoning, housing, building, safety or fire ordinances or codes.

e) Buyer is advised that access to a public road may require issuance of a highway

occupancy permit from the Department of Transportation.

f} Sellers of property enrolled in the Clean and Green program shall, as required by law,

give the county assessor 30 days notice of the pending sale. If prior to setilement Seller

receives any assessments or notices, as previously stated, then Seller shall

immediately give notice to Buyers. Unless otherwise prohibited by law, Buyer will be

responsible for any written notice served upon Seller after execution of this Agreement

and for the payment thereafter of any public improvement and condominium or

homeowners association assessments.

RIGHT-TO-FARM LAW 3 P. 8. SECTION 951-957; The property you are buying may he

located in an area where agricultural operations take place. Pennsylvania protects

agricultural resources for the production of food and agricultural products. The law limits

circumstances where normal agricultural operations may be subject to nuisance lawsuits or

restrictive ordinances

99 ddy

App. 67

12. TITLE AND COSTS:

a)

b)

Cc)

The Premises are to be conveyed free and

clear of all liens, encumbrances and ease-

ments, EXCEPTING HOWEVER: Existing

building restrictions, ordinances, easements

of roads, easements visible upon the ground,

privileges or rights of public service compa-

nies, if any; otherwise the title to the above-

described real estate shall be good and mar-

ketable and such as will be insured by a

reputable Title Insurance Company at the

regular rates.

If the Seller cannot give a good and market-

able title, such as will be insured by a repu-

table Title Insurance Company at regular

rates, then the Buyer has the option of tak-

ing such title as the Seller can give without

abatement of price or of being repaid all

monies paid by Buyer to Seller on account of

the purchase and the Seller will reimburse

the Buyer for any costs incurred by the

Buyer for inspections specified in paragraph

#9 and #12(c) items (1), (2), (3), and in para-

graph #12(d); and in the latter event there

shall be no further liability or obligation on

either of the parties hereto and this Agree-

ment shall become NULL AND VOID and all

copies will be returned to Seller’s agent for

cancellation.

The Buyer will pay for the following:

1) The premium for title insurance and/or

title search, or fee for cancellation of

same, if any.

13.

14.

App. 68

2) The premiums for flood insurance and/or

fire insurance with extended coverage,

insurance binder charges or cancellation

fee, if any.

3) Appraisal fees and charges paid in ad-

vance to mortgagee, if any.

4) Buyer’s normal settlement costs.

d) Any survey or surveys which may be re-

quired by the Title Insurance Company or

the abstracting attorney, for the preparation

of an adequate legal description of the prem-

ises (or the correction thereof), shall be se-

cured and paid for by the Seller. However,

any survey or surveys desired by the Buyer

or required by his/her mortgagee shall be se-

cured and paid for by the Buyer.

DOMESTIC RELATIONS LIEN: Pennsylvania

law requires county Domestic Relations Offices to

impose property liens for overdue child support.

If applicable, Buyer and Seller shall advise their

agent/licensee so verification of lien status can be

promptly determined.

DEPOSIT AND RECOVERY FUND: Deposits

or hand monies shall be paid to Listing Broker,

who shall retain the same until consummation or

termination of this Agreement in conformity with

all applicable laws and regulations. Listing Bro-

ker may hold any uncashed check tendered as

deposit pending the acceptance of this offer. In

the event of dispute for the return of deposit

monies, Listing Broker will distribute the monies

pursuant to a final order of court or the written

15.

App. 69

agreement of the parties. A real estate recovery

fund exists to reimburse persons who have suf-

fered monetary loss and have obtained an uncol-

lectible judgment due to fraud, misrepresentation

or deceit in a real estate transaction by a Penn-

sylvania licensee. For complete details, cail 717-

783-3658.

TENDER AND POSSESSION:

a)

Title shall be tendered by way of warranty

deed and possession is to be delivered by

keys to a vacant building (if any) broom

clean, free of debris or by deed and assign-

ment of existing lease(s) at time of settle-

ment if premises are tenant-occupied at the

signing of this Agreement, unless otherwise

specified herein.

Seller will not center into any new lcases,

written extension of existing leases, if any, of

the premises without expressed written con-

sent of the Buyer.

Formal tender of an executed deed and pur-

chase money is hereby waived.

Buyer reserves the right to make a pre-

settlement inspection of the subject prem-

ises.

MAINTENANCE AND RISK OF LOSS

a)

Seller shall maintain the property (including

all items mentioned in paragraph #8 herein)

and any personal property specifically sched-

uled herein in its present condition, normal!

wear and tear excepted.

ay.

18.

19.

App. 70

b) Seller shall bear risk of loss from fire, or

other casualties until time of settlement. In

the event of damage to any property included

in this sale by fire or by other casualties, not

repaired or replaced prior to settlement

Buyer should have the option of rescinding

this Agreement and receiving all monies paid

on account or of accepting the property in its

then condition together with the proceeds of

any insurance recovery obtainable by Seller.

Buyer is hereby notified that he may insure

his equitable interest in this property as of

the time of the acceptance of this Agreement.

RECORDING: This Agreement shall not be

recorded in the Office for the Recording of Deeds

or in any other office or place of public record.

ASSIGNMENT: This Agreement shall be bind-

ing upon the parties, their respective heirs, per-

sonal representatives, guardians and successors,

and to the extent assignable, on the assigns of

the parties hereto, it being expressly understood,

however, that the Buyer shall not transfer or as-

sign this Agreement without the written consent

of the Seller.

DEFAULT: Time shall be of the essence with

respect to performance of any obligation arising

under this Agreement. Compliance therefore

must be made by the specified date(s) or Seller

may, at Seller’s sole election, hold Buyer in

breach of this agreement. Should the Buyer: 1)

fail to make any additional payments, as speci-

fied in paragraph #5, or 2) furnish false or in-

complete information to the Seller, Seller’s Agent

App. 71

or the mortgage lender concerning the Buyers

legal or financial status, or fail to cooperate in

the processing of the mortgage loan application,

which acts would resuit in the failure to obtain

the approval of mortgage loan commitment, or 3)

violate or fail to fulfill and perform any of the

terms or conditions of this Agreement. The Seller

may, at Seller’s option, elect:

a) to declare the agreement of sale null and

void; and

b) to proceed against the buyer for Seller’s ac-

tual damages; or

c) to retain all deposit money paid on account

as liquidated damages which amount the

parties agree is a reasonable sum and not in

the nature of a penalty.

Should the Seller violate or fail to fulfill and

perform any of the terms and conditions of this

Agreement, Buyer may elect:

a) to pursue Buyer’s remedy for specific per-

formance of the Agreement; or

b) proceed against the Seller for Buyer’s actual

damages; or

c) receive a return of the deposit money and

also be entitled to receive an additional sum

equal to the deposit money paid on the ac-

count as liquidated damages which amount

the parties agree is a reasonable sum and

not in the nature of a penalty.

App. 72

20. REPRESENTATIONS: Seller represents that

Seller has informed Buyer of any hidden or la-

tent defects of which Seller has knowledge. It is

understood that the Buyer has inspected the

property and any personal property to be in-

cluded in the sale or hereby waives the right to

do so and has agreed to purchase it as a result of

such inspection and not because of or in reliance

upon any representations which were not in-

cluded in this agreement whether made by any

broker, transaction licensee or any of their re-

spective sales people, employees, officers and/or

partners.

Buyer agrees that any and all statements,

claims, advertisements, marketing, promotional

exhibits, building and subdivision plans made or

presented by Seller, brokers, their licensees, em-

ployees, officers, or partners are not incorporated

in this agreement of sale unless expressly so

stated to be made a part thereof. The Buyer has

agreed to purchase the property in its present

condition unless otherwise specified herein. It is

further understood that this Agreement contains

the whole Agreement between the Seller and the

Buyer and there are no other terms, obligations,

covenants, representations, statements or condi-

tions, oral or otherwise, of any kind whatsoever

concerning this sale. Furthermore, this Agree-

ment shall not be altered, amended, changed or

modified except in writing executed by the par-

ties.

RELEASE: Buyer hereby releases, quit-claims

and forever discharges seller, all agents, their

subagents, employees and any officer or partner

22.

23.

App. 73

of any one of them and any other person, firm or

corporation who may be liable by or through

them from any and all claims, losses or de-

mands, in Jaw or equity, including but not

limited to personal injuries, property damage

and any and all of the consequences thereof,

whether now known or not, which may arise from

the presence of irold, all wood-boring insects, ra-

don, lead-based paint hazards, environmental

hazards, any defects or deficiencies in the onlot

sewage disposal system and/or on-site water ser-

vice system, or any defects or conditions on the

property. This release shall survive settlement.

MEDIATION: The Buyers, Sellers and Brokers

agree that disputes relating to this Agreement

SHALL be submitted to mediation in accordance

with the rules and procedures of the dispute reso-

lution system established by the REALTORS®

Association of York and Adams Counties, Inc.,

and that if any agreement is reached by the Buy-

ers, Sellers and Brokers pursuant to a mediation

conference, it shall be binding upon them. Costs

of mediation to be shared equally by Buyers,

Sellers and Brokers named in the dispute. This

duty to mediate disputes shall survive final set-

tlement.

EXECUTION: This Agreement and any amend-

ments thereto, maybe executed by the parties by

way of transmission through a Facsimile (FAX)

machine; such a copy shall have the same legal

enforceability and binding effect upon the parties

as though it were signed by all parties in original

form.

App. 74

APPROVAL BY BUYER: The Buyers hereto, intend-

ing to be legally bound hereby, have hereunder set

their hands and seals the day and year first above

written.

WITNESS BUYER

/s/ Bruce Gibbons

(SEAL)

WITNESS

/s/ Mary Ann Panicho BUYER

/s/ Crystal Gibbons

WITNESS (SEAL)

BUYER

(SEAL)

APPROVAL BY SELLER: Seller hereby accepts/

counteroffers the above proposal this __ day of ’

The effective date of this Agreement shail be the date

on which the of-er or any counteroffer is accepted as

evidenced by the dated signature or dated initials.

WITNESS BUYER

/s/ Richard J. Lewis

(SEAL)

W 4

ITNESS | BUYER

/s/ (Illegible|j we

/s/ Patricia A. Lewis

WITNESS (SEAL)

Hapncen. See a

(SEAL)

RE: PROPERTY

SELLER:

BUYER:

App. 7)

FORM#RAYAC-2-2

Rey. 12/02

DISCLOSURES AND INSPECTION ADDENDUM

Form approved oy REALTORS® Association of York and Adams Counties, Ine.

DATE 7/17/04

Richard J. & Patricia A. Lewis

Bruce D, & Crystal L. Gibbons

It is understood and agreed that the above Agreement of Sale shall be endorsed as follows:

Seller and Buyer include the initialed paragraph(s) as supplemented by the applicable provisions on THE REVERSE SIDE OF

THIS DOCUMENT, as part of the above-captioned Agreement.

IN THE EVENT THE INSPECTIONS, TESTS AND/OR CERTIFICATIONS, INCLUDING WRITTEN RESULTS FURNISHED

TO SELLER, ARE NOT COMPLETED WITHIN THE PRESCRIBED TIME PERIOD STATED BELOW, THEN ALL PARTIES

ACKNOWLEDGE THAT BUYER'S RIGHT TO CONDUCT SAID INSPECTIONS SHALL BE WAIVED UNLESS PRESCRIBED

BY THE MORTGAGE LENDER. from whom buyer is securing ¢ loan, in accordance with the mortgage contingency clause in the

above-captioned Agreement.

1, Condominium or Planned Community

Seller Buyer Public offering statement or resale certificate and relatec documents as applicable for concominum or

“Seller

~ Seller

Planned Community to be received on/or before

These cocuments cannot be waived.

2. Wood Destroying Pest Inspection Completed on’or before 7/29/04

3, On-Lot Waste Water Treatment System = Complete

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