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HomeMy WebLinkAbout07-0428F: \FILES\DATAFILE\General\Current\ 11093.11. corrmplaint\mas Created: 9/20/04 0:06PM Revised: 1 / 19/07 11:09AM 11093.11 David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 6 *7- q2.do &t't CIVIL ACTION - LAW ` LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants. JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a j udgment maybe entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: 6 hJ Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 -? - r _4 .. co "C David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 67- '4J-? CIVIL ACTION - LAW LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants. JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Calabrese & Sons, Inc., by its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and avers the following in support of its claim: 1. Plaintiff, Calabrese & Sons, Inc. ("Calabrese"), is a Pennsylvania corporation with a principal place of business located at 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, Lenape Forge, Inc., is a Pennsylvania corporation with aplace ofbusiness located at 1334 Lenape Road, West Chester, Chester County, Pennsylvania 19382. 3. Defendant, Lenape Forged Products Corporation ("Lenape Forged Products"), is a Pennsylvania corporation with a place ofbusiness located at 1334 Lenape Road, West Chester, Chester County, Pennsylvania 19832. 4. Calabrese & Sons, Inc., is a machine shop in the business of producing machined parts for commercial and military customers. 5. In the normal course of business, Calabrese contracts with forging companies for the production of raw forgings which Calabrese then machines into final finished parts for its customers. 6. Both Lenape Forge, Inc. and Lenape Forged Products are, upon information and belief, companies engaged in the business of inter alia producing raw forgings on order for machine shops such as Calabrese. 7. Upon information and belief, both Lenape Forge, Inc. and Lenape Forged Products are listed as currently active business entities with the Commonwealth of Pennsylvania's Department of State Corporate Bureau. Lenape Forge, Inc., during all times relevant to the transactions described in this Complaint, regularly conducted and conducts business in Cumberland County through its contacts and contracts with Calabrese and other customers and potential customers. 9. Lenape Forged Products, during all times relevant to the transactions described in this Complaint, regularly conducted and conducts business in Cumberland County through its business contacts with Calabrese and other customers and potential customers. 10. This suit is based upon payment by Calabrese & Sons, Inc., in the amount of $37,411.02, for Forging Billet (raw material) for a Calabrese & Sons, Inc., contract with Naval Inventory Control Point Philadelphia (NAVCP) 11. On or about November 18, 2004, Calabrese & Sons, Inc., sought quotes for nine (9) forgings per a drawing designated as CS 17-61556-2. Exhibit 1 attached and incorporated herein is a copy of the Request for Quotation, delivered to and received by Lenape Forge, Inc. 12. On or about December 2, 2004, Lenape Forge, Inc., submitted a successful Quotation #12-02-2004 2785, followed by a raw materials invoice 41209-1 dated December 9, 2004, and attached and incorporated herein as Exhibit 2. 13. On or about December 13, 2004, an authorized agent of Lenape Forge, Inc. transmitted to Calabrese's buyer, Joey Calabrese, an Invoice number 41209-1 for pre-payment of raw material in the amount of $37,011.10. A copy of the transmittal sheet and invoice is attached and incorporated herein as Exhibit 3. 14. Calabrese in accordance with accepted defense contracting procedures made application through DFAS Columbus Center, a Federal Government Military procurement entity for Advanced Payment for Contract attached and incorporated herein as Exhibit 4. 15. Calabrese generated Purchase Order 704 dated March 14, 2005, in the amount of $37,011.10, attached and incorporated herein as Exhibit 5, transmitted to and received by Lenape Forge, Inc 16. Lenape Forge, Inc., in turn submitted an invoice in the amount of $37,411.02, for pre- payment ofbillet, a Revised Invoice 41209-1, dated April 8, 2005, the transmittal message from Harry Myers of Lenape Forge Inc and invoice are attached and incorporated herein as Exhibit 6. 17. The Revised Invoice attached as Exhibit 6 includes the note that "Funds will be sent directly to Ellwood Quality Steel upon recipe of funds from Calabrese & Sons, Inc." 18. Payment was made by Calabrese via check number 011041 dated June 7, 2005, in the amount of $37,411.02 and deposited in Lenape Forge Account # 713-07024. A copy ofthe check, front and reverse with endorsements, is attached and incorporated herein as Exhibit 7. 19. Despite the representations on its invoice, and verbal assurances made on more than one occasion by its officers and agents Lenape Forge, Inc., did not transmit the raw material payment to Ellwood Quality Steel. 20. On June 22, 2005, David Hershbell transmitted a "Revised Purchase Order" attached and incorporated herein as Exhibit 8, indicating a scheduled delivery of 09/28/05 of the forged parts. 21. Both Lenape Forge, Inc. and Lenape Forged Products, through their officers and representatives, refused to return the funds to Calabrese & Sons, Inc. 22. On or about October 11, 2005, Lenape Forged Products transmitted the document attached as Exhibit 9 and incorporated herein by reference, to Calabrese and, upon information and belief, other customers of Lenape Forge, Inc., advising of a "new company name" and contact information. 23. The note attached at Exhibit 9 represents that ..."[t]here is anew company name; that all extension numbers within the new company have remained the same as with Lenape Forge, Inc.; and that e-mail addresses and the Lenape Forge, Inc., domain name (Lenape.com) remained the same." 24. Upon information and belief, the domain name and website was established by Lenape Forge, Inc., in the calendar year 2004 or 2005 (please see Exhibit 2). 25. Calabrese & Sons, Inc.'s contact through Lenape Forged Products is the same individual who transmitted the Revised Invoice at Exhibit 8, on behalf of Lenape Forge, Inc., David Hershbell. 26. Hershbell had advised Joe Calabrese, President of Calabrese that Lenape Forge, Inc.'s personnel had "underpriced" their initial quote to Calabrese, and Joe Calabrese, therefore, agreed to the revised price for the final product represented in Exhibit 8. 27. Moreover, Hershbell advised Joe Calabrese that Lenape Forge, Inc., did indeed receive the payment transmitted by Calabrese, but that those funds were no longer available, through no fault of Calabrese & Sons, Inc. 28. At no time in calender year 2005 did Hershbell or any employee of Lenape Forge, Inc., advise Calabrese that Lenape Forge Inc., did not intend to fulfill its obligation to Calabrese. 29. In fact, at the time (June 2005) he was negotiating with Joe Calabrese to revise and increase the amount of the final contract price for the parts, Hershbell was aware that Lenape Forge, Inc., was suffering financial difficulties, and that the payment for Billett had been diverted to recipient[s] other than the intended and promised Ellwood Quality Steel. 30. Moreover, Hershbell was aware, and has acknowledged to Joe Calabrese in person that he was aware that the funds submitted by Calabrese were an advance on contract payments received from the government. 31. Lenape Forge, Inc. and Lenape Forged Products are both experienced Government contractor companies, and through their common employees and directors, including but not limited to Hershbell, are aware, and have acknowledged personally to Joe Calabrese that the disappearance of advanced government funds is very problematic to Calabrese, with the actual and potential effect of damaging Calabrese's standing as a Federal contractor, with actual and potential loss ofbusiness, profits, and contracting opportunities a direct consequence of the failure of Lenape Forge, Inc. and Lenape Forged Products to make good on their contract, and promises to work in good faith to remedy the harm to Calabrese. 32. Lenape Forged Products, through David Hershbell and Erich Stolz, promised and represented to Joe Calabrese, the President of Calabrese & Sons, Inc., in a December 21, 2006, meeting at the common West Chester address ofboth Lenape Forge, Inc. and Lenape Forged Products that they would attempt to remediate the disappearance of the Calabrese billet payment through a renegotiated contract with Ellwood Quality Steel and with Calabrese & Sons, Inc., for the production of the required forgings. 33. Lenape Forged Products and Lenape Forge, Inc., were expressly reminded ofthe facts they already knew at the December 21, 2006 meeting that the funds that had been forwarded to Lenape Forge, Inc., were federal government contract pre-payment funds and that the disappearance of those funds, while in Lenape Forge, Inc.'s custody, was causing serious problems to Calabrese's relationship with one of its primary military contract buyers. 34. Despite their knowledge of the seriousness of the situation, Lenape Forge, Inc. and Lenape Forged Products' representatives nevertheless failed to submit any proposal to Calabrese, and upon information and belief, failed, contrary to their representations, to contact Ellwood City Steel to determine options for obtaining the billet that Calabrese had paid for. 35. Hershbell and Stolz expressly acknowledged the damage that was being caused to Calabrese, acknowledging that a lawsuit was the least mutually acceptable manner in which to resolve the dispute, and promised to take action and provide Calabrese with a proposal. 36. Instead, on behalf of Lenape Forge, Inc. and Lenape Forged Products they did nothing, knowing full well and intending that further harm would befall Calabrese in its relationship with primary military procurement customers. 37. Lenape Forged Products has taken the position that it is not the same company as Lenape Forge, Inc. 38. Once it became apparent that Hershbell and Stolz had no intention to fulfill the obligations and promises they made on behalf of Lenape Forge, Inc. and Lenape Forged Products, Calabrese was forced to obtain materials through alternative sources and continues to suffer the consequences of the improper retention of its down payment funds by Lenape Forge, Inc., which further benefitted Lenape Forged Products. COUNT I - BREACH OF CONTRACT Calabrese & Sons. Inc. v. Lenape Forge. Inc. 39. The averments of the preceding paragraphs 1 through 38 of this Complaint are incorporated herein by reference as fully set forth. 40. Lenape Forge, Inc.'s actions constitute of breach of contract with Calabrese & Sons, Inc., for reasons stated in this Complaint. WHEREFORE, PlaintiffCalabrese & Sons, Inc., request that this Honorable Court enter judgment in its favor for the down payment funds in the amount of $37,411.02, together with statutory interest, costs and such other relief as the Court deems just and reasonable under the circumstances. COUNT II - BREACH OF CONTRACT Calabrese & Sons, Inc. v. Lenape Forged Products Corporation 41. The averments of the preceding paragraphs 1 through 40 of this Complaint are incorporated herein by reference as fully set forth. 42. Lenape Forged Products' actions constitute a breach of contract with Calabrese & Sons, Inc., for reasons stated in this Complaint. WHEREFORE, Plaintiff Calabrese & Sons, Inc., request that this Honorable Court enter judgment in its favor for the down payment funds in the amount of $37,411.02, together with statutory interest, costs and such other relief as the Court deems just and reasonable under the circumstances. COUNT III - FRAUD Calabrese & Sons, Inc. v. Lena a Forge, Inc. 43. The averments of the preceding paragraphs 1 through 42 of this Complaint are incorporated herein by reference as fully set forth. 44. Lenape Forge, Inc., through its officers and/or agents improperly and knowingly converted the raw material deposit funds transmitted by Calabrese & Sons, Inc., and have consistently refused to either reimburse Calabrese & Sons, Inc., for the missing funds or to produce raw materials required under the contract. 45. Lenape Forge, Inc., undertook these actions knowing and intending that those actions would cause damages, embarrassment and loss of business and potential serious consequences in Calabrese's contracting relationship with the federal government. 46. Said actions and intent to cause harm constitute a fraud upon Calabrese & Sons, Inc., and punitive damages, including but not limited to, attorney's fees are appropriate. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfully prays that this Honorable Courtwill enter an Order in its favor granting payment of the raw material invoices paid in the amount of $37,411.02, plus statutory interest costs, attorney's fees, punitive damages and such other relief as the Court deems just and reasonable under the circumstances. COUNT IV - FRAUD Calabrese & Sons, Inc. v. Lenape Forged Products Corporation 47. The averments of the preceding paragraphs 1 through 46 of this Complaint are incorporated herein by reference as fully set forth. 48. Upon information and belief, Lenape Forged Products takes the position and intended through its incorporation, to succeed to the assets of Lenape Forge, Inc., and to avoid legitimate obligations of Lenape Forge, Inc. 49. Representatives of Lenape Forged Products formerly or currently employed by Lenape Forge, Inc., have advised Calabrese & Sons, Inc., that Lenape Forged Products does not acknowledge any obligation to Calabrese & Sons, Inc. for the raw material funds down payment. 50. Upon information and belief, Lenape Forged Products' position is an attempt to improperly separate the assets from the liabilities of Lenape Forge, Inc., and deny Calabrese & Sons, Inc., access to its funds which Lenape Forge, Inc., and Lenape Forged Products acknowledge were received from Calabrese & Sons, Inc., which actions are in violation of the intent of the successor liability doctrine. 51. Lenape Forge, Inc., and Lenape Forged Products undertook these actions knowing and intending that those actions would cause damage, embarrassment and loss of business and potential serious consequences in Calabrese's contracting relationship with the federal government. 52. Said actions and intent to cause harm constitute a fraud upon Calabrese & Sons, Inc., and punitive damages, including but not limited to, attorney's fees are appropriate. WHEREFORE, PlaintiffCalabrese & Sons, Inc., respectfullyprays that this Honorable Court will enter an Order in its favor granting payment of the raw material invoices paid in the amount of $37,411.02, plus statutory interest costs, attorney's fees, punitive damages and such other relief as the Court deems j ust and reasonable under the circumstances. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO By David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: January 19, 2007 Attorneys for Plaintiff ?ti;b? ?s NEfYCIFD PAPfN i a RECYCL48l[' 406 BRANDY LANE MECHANICSBURG, PA 17055 PHONE 717-766-4771 FAX 717-697-6506 ; do M0 CAL A B RES E & SO NS , INC . To: QUOTING DEPARTMENT From: JOEY CALABRESE Fax: Pages: 1 OF 2 Phone: Date: 11/18/2004 Re: 704 CC: ? Urgent a For Review ? Please Comment ? Please Reply ? Please Recycle QUOTE PRICE AND DELIVERY FOR THE FOLLOWING: 9 EA- FORGINGS PER DRAWING CS17-61556-2 Exhibit "1" Ilov iy u4 07:41a ?v -4 31 oa? 0C) a :3 C , • ri z : h d C-3 Z h -%a of m , .- m N p : w C I* , • A 0 Af C a -1 ro - .-• N++-n 00 7 01 -1 0 ? 1700 w np?ai Ul (11 M V°j -4 "' L ~ (C t!1 x ?D q . ° D 7 . +K ti r) ° N m 3 m?m-c ioc?i Cl. ? 2 ? 113 3) ' fll I o0 u 11 mrn rnn?!!: W;o z l z --1 rn Zc r rn c7 ?7t7 Ds2? zQrD? Ip?.D...... r-Ib - --T ? •. O ZI CA --1 ? mss. m o x Tr = i+ .- H rn i (n xzz2 o+ 0 (A) r rn Qm[? . I... DD m -4C Oil , rn M a )t t WM-44 ?a2 to V DO?i2 -1 a- S w C7 w 3 G r- n No I D 0 - vzN :2 In rn .. co -z .. -fSm-ofac7 m x O° --- m r o + v z ? - r + 00 ? clo 0 _ O m 7 fn rn?pp m m >u ° r f - b '-' z A c7 J*R t D -1 ?N rC m - m 0-4 r ;o mm N -? 1 rn ?? M D z 4' N W m a cy ?M b r m Z; o Z W WM -4 4 ? rA z z W CD Z H z i CD b v o fn -U 0 O A D Z O rn O ? ? try C7 ? xL CRLRBRESE d SONS 7176976506 p.2 ??*J afcafornrfe 0.f(VClABIE tliP?iRvfie.EL Lenape Forge Inc. 1334 Lenape Road West Chester, Pa 19382 U.S.A. Ph: 610-T93-1500 Fax: 610.793-0391 Invoice Number. 41209-1 Oats: Ot?-DeF2004 To Ship To Calabrese 8 Sons Calabrese & Sons 406 Brandy Lane Mechanicsburg, PA 17055 Page 1 or 1 Exhibit "2" LL LL FAX Lergv Forge 1334 Lenape Rd West Chester, PA 19382 610-793-1500 ext222 610-793-3240 fax woodrina(c le=efor eg`com TO: 9Ue C.AA 7 RE: aQ / ?G DATE: (2 f t 3 ,?w 0 On Le - 9 4 --t-u -e,4 4 ?& 64,1 34,-73 U,fV J? w VC4-,, 9,L- LQX"?, Lc 3c) Exhibit "3" I?C/1w R Lenape Forge Inc. 11334 Lenape Road West Chester, Pa 19382 U.S.A. Ph: 610.793-1500 Fax: 610-793-0391 Invoice Number: 41209.1 Date: o"ec2M To Ship To Calabrese & Sons Calabrese & Sons 406 Brandy Lane Mechanicsburg, PA 17055 cage 1 or CALABRESE & SONS, Inc. P.O. Box 1667 Mechanicsburg, Pennsylvania 17055 (717) 766-4771 (717) 697-6506 FAX Sold to: DFAS COLUMBUS CENTER NORTH ENTITLEMENT OPERATIONS PO BOX 182266 COLUMBUS, OH 43218-2266 INVOiCE -4: F04 11 Invoice date Customer Num. Purchase Order # Payment terms Sales tax due Job Number 11 02/02/05 1 II N0038304CP019 II No 704 Quantity Nomenclature Description Unit Price Price 1 ADVANCED PAYMENT FOR CONTRACT 37,011.00 N00383-04-C-P019 NSN 1720-01-309-8239 BILLET MATERIAL Delivery Ticket : Completed or Partial Unpaid invoices beyond 30 days vAN be assessed a 1 1/2% Monthly Service Charge. Sub-Total : 37,011.00 Sales tax 6%: 0.00 The Invoice Number should appear on all payments, memos & Total : 37,011.00 correspondence to insure proper crediting to your account. Shipping Invoice# TOTAL AMOUNT DUE I 37,011.00 703 Exhibit "4" ,? CYCLEU PAPER `? RECYCLABLE CALABRESE & SONS, Inc. Precision Machine Products 406 Brandy Lane P.O. Box 1667 Mechanicsburg, Pennsylvania 17055 PHONE: (717) 766-4771 FAX: (717) 697-6506 Purchase Order Number 704 'This number must appear on all correspondence, invoices, shipping papers & packages. INVOICE AND SHIP TO ADDRESS ABOVE Date Terms Vendor Ship Via Delivery F.O.B. Point Payable Quote No. 12/09/2004 PRIORITY RATING: DQA1 Quote By W.B. WOODRING Certified for National Defense Under DMS Regulations 1. You are required to follow provisions of DMS Regulation 1 and of all other applicable regulations and orders of 8DSA in obtaining controlled materials and other products and materials needed to fill this order, provided it contains a DO and/or DX orioritv ratina. Quantity Descri tion Price 9 EACH FORGING BILLET PER AMS-S-6758, 4130 $37,011.10 LOT CERTS ARE REQUIRED AND MUST ACCOMPANY MATERIAL MERCURY FREE CERTIFICATE APPLIES. MATERIAL MUST BE SHIPPED COMPLETE. ACKNOWL EDGEMENT: PLEASE SIGN AND FAX BACK: We will comply with all provisions of Executive Order 10925 sign & date of March 6, 1961, and of the rules, regulations, and relevant APPROVED BY rs f the President's Committee on Equal Employment office use: de L o nity cre ated thereby. MATERIAL RECEIVED office use: Exhibit "5rr r ',+ ? Q,s MKKYCABIEYCLEEI --- 1334 Lenape Road West Chester, Pa. Phone 610 793 1500 X202, Fax 610 793 3240! LENAPE FORGE FAX 86 FAX: TO -5? J0?ls , ATTENTION-161/ e FROM: H. J. MYERS, EXT. 244 ; REF: MESSAGE: Ac PAGE 1 OF DATE -y l0 ,2-0 r L ?JZ MAY Pe--le-WA, P?GAE ?tIWTA-Tjt? A L AW,-D tJ rTN A- lI Vtr7 0,o, wc- 4 Ae4 4iy yaeg L-1 TO- Exhibit "6" . SUMMMOL Lanapo Fwpa Me. 1334 Lanapo Road Wilt Garb, Pa 1 OM u.s.A Ph: 810-7113`1500 Fox 610-793-03p1 Invoice ti+mbar 41200.1 DO& 224Awoh 1006 To sblp To Lam . "m. 4oe a n %WWOM a st. Ana O.am1dd7 PO B S Maolw?io?bL% PA 17066 . A M ?hnfcaburp, PA 17066 u SA rave 1 a I 6xltj?-c ? ?? RECYCLED PAPER v RKYCARLf 2006-Dec-02 02:49 AM Integrity Bank 7179204904 1/1 Current Date: December 01, 2006 Account Number: 2201002387 Capture Date: Item Number: Posted Date: Posted Item Number. Amount: Record Type: CALABRESE & SONS INC 406 BRANDY LANE MECHANICSBURG PA 17055 June 13, 2005 30007152667 June 13, 2005 164000032 $37,411.02 Debit CUBRESEA SONS, JAC 0 011041 PD BOX 1667 Inte?eYh. 4MBRODYLANE DATE CHECK l?sEiMMMAM, PA. 1700 Bo-te?oas Mema: BRANCH' Jum7,MM 0110417 CFtECitAMOUNT PAY lWy-%virr Thousand FourHndmd Ewen and=(D Dabs S37'.4i1.02 TO THE LENAPE FORGE, INC ORDER 1334 LUAMPEROAD OF WFST( STEM, RA 102 a'DiiD41i?' r;03131878??: 22Di002387a' .?'D003?4iiD???' X v > a G a G7 m rte ;aG 4 f ~ . 0115363040 o6 i32005 f ?. ci 03J000040 P'RB-111+11"'O re a D , ET1T=0820 T?rC=O?Y;t_",P ? g v 3 no _ r' ='r K ?o3iooooit? ?. ? ; N -? lbiJ1A ?15?752 3799'r PtiIiA, PA 65;8a:9G5 I3?K `?` ? ? ? ;? - -= --- - Mm Exhibit "7" 4(x??k/4 ? ?? RKYCYED PAPER RFCVUBLE CALABRESE & SUNS, Inc. Precision Machine Products 406 Brandy Lane P.O. Box 1667 Mechanicsburg, Pennsylvania 17055 PHONE: (717) 766-4771 FAX: (717) 697-6506 Purchase Order Number F- 704 7-1 This number must appear on all correspondence, invoices, shipping papers & packages. INVOICE AND SHIP TO ADDRESS ABOVE Date 06/22/05 Terms N-30 Vendor Ship Via CALL C+SI Delivery 09/28/05 F.O.B. Point WEST CHESTER Payable Quote No. 12-02-20042785 REV PRIORITY RATING: DOA1 Quote By DAVE HERSHBELL Certified for National Defense Under DMS Regulations 1. You are required to follow provisions of DMS Regulation 1 and of all other applicable regulations and orders of 8DSA in obtaining controlled materials and other products and materials needed to fill this order, provided it contains a DO and/nr n Y nrinrity rmfinn Quantity Description Price 9 EACH FORGING PER CALABRESE DRAWING 17-61556-2 $13,054.01 REVISED PURCHASE ORDER DO NOT DUPLICATE CERTS ARE REQUIRED AND MUST ACCOMPANY MATERIAL MERCURY FREE CERTIFICATE APPLIES. MATERIAL MUST BE SHIPPED COMPLETE. ACKNOWL EDGEMENT: PLEASE SIGN AND FAX BACK: We will comply with all provisions of Executive Order 10925 sign & date i of March 6, 1961, and of the rules, regulations, and relevant APPROVED orders of the President's Committee on Equal Employment office use: %' Opportunity created thereby. MATERIAL RECEIVED office use: Exhibit "8" a CL m c c r C d a « e? o •- •0 a, tcia N m? - M I .z 0GL ;EL mca W CL O w W? a A X. m N r ? 9 e0 • c N } m ?o 9 v t? a Tr a. r ' > LM LL Z a m LLI . C7 -9 V o a 12 Ff,3 ?m? LL to 0 S CL Co EL ? a ? FP c] g 4°' m ui _8 ° w E 2o .0 0) z 30 0,0112 W ;; S m _ 0 1 J lug `o 5.0 ca LL LL ? ? m m ? ?> J:J a ? f?w , t 9 +A ¦ECraeo rufx 7? RenunF it Lenape Forged Products Corp. 1334 Lenape Road West Chester, PA 19382 October 11, 2005 Calabrese .& Son, Inc. 406 Brandy Lane PO Box 1667 Mechanicsburg,PA 17055 We are pleased to announce our new company name and contact information: Our new main phone #: (610) 793-5090 Sales & Engr Fax #: (610) 793-3070 Acctg/Main office Fax#: (610) 793-3059 All extension numbers have remained the same. E-mail addresses and the Lenape Forge domain name (Lenape.com) have also remained the same. Exhibit "9" VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., acknowledge I have the authority to execute this Verification on behalf of Calabrese & Sons, Inc., and certify the facts asserted in the foregoing document are true and correct to the best of my knowledge, information and belief. To the extent the content of the document is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904. Calabrese & Sons, Inc. J eph 'dalabrese 1 c - - v C) «w FT -7 l ] r. U7 ~t r WHITE AND WILLIAMS LLP BY: Steven E. Ostrow/Joseph G. Gibbons Identification No(s). 50568/60378 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7074 NOTICE TO PLEAD TO: Plaintiff You are hereby notified to file a written response to the following Preliminary Objections within twenty (20) days of service hereof or a judgment may be entered against you. --?A Atto e s for De endant, Lenape Forged Products Co . Attorneys for Defendant, Lenape Forged Products Corp. CALABRESE & SONS, INC. Plaintiff, V. LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION Defendant. CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 07-428 CIVIL ACTION - LAW PRELIMINARY OBJECTIONS OF DEFENDANT, LENAPE FORGED PRODUCTS CORP., TO PLAINTIFF'S COMPLAINT Defendant, Lenape Forged Products Corp. ("Products")', through its counsel, White and Williams LLP, hereby asserts the following preliminary objections to Plaintiff s Complaint and in support thereof avers as follows: t The Complaint identifies defendant, Lenape Forged Products Corp., as Lenape Forged Products Corporation. To the extent material to this dispute, Lenape Forged Products Corp. reserves the right to raise any and all defenses available to it including, but not limited to, the right to assert that Plaintiff brought this action against the wrong party and/or failed to join all necessary parties. PHLDMS 1 3073729v.3 I BACKGROUND 1. Plaintiff commenced this action on or about January 24, 2007 by filing a Complaint (the "Complaint") against Lenape Forge, Inc. ("LFI") and Products. A true and correct copy of the Complaint is attached hereto and marked as Exhibit "A." 2. The Complaint is divided into four counts, two of which are asserted against LFI and two of which are asserted against Products. 3. Count II is styled in the form of a breach of contract claim against Products. Count IV is styled as a claim for common law fraud against Products. 4. The Complaint seeks to recover the amount of $37,411.02 which Plaintiff allegedly paid to LFI pursuant to a quotation that was submitted to Plaintiff by LFI on or about December 2, 2004. 5. Pursuant to the quotation, Plaintiff allegedly forwarded $37,011.10 to LFI on or about June 7, 2005. 6. The allegations contained in the Complaint related to Products consist of: (a) Products is a Pennsylvania corporation with a place of business in Chester County.z See Complaint at ¶ 2; (b) Products is engaged in the business of producing raw forgings. See Complaint at ¶ 6; (c) Products is currently listed as an active business with the Commonwealth of Pennsylvania's Department of State. See Complaint at ¶ 7; (d) Products regularly conducted and conducts business in Cumberland County through business contacts with Plaintiff and others. See Complaint at ¶ 9; 2 Defendant, Lenape Forged Products Corp. is not a Pennsylvania corporation but a Delaware corporation that is duly authorized to conduct business in Pennsylvania. -2- PHLDMS 1 3073729v.3 (e) When Plaintiff demanded that Products reimburse Plaintiff for amounts it paid LFI, Products refused. See Complaint at ¶ 21; (f) On October 11, 2005, Products forwarded a document to Plaintiff attached to the Complaint as Exhibit "9" announcing a new company name and contact information. See Complaint at ¶ 22; (g) On December 21, 2006, Products, through its agents, allegedly promised to remediate the disappearance of the funds which Plaintiff paid to LFI. See Complaint at ¶ 32; (h) Products failed to submit a proposal to Plaintiff or contact Elwood City Steel in an attempt to remediate such disappearance. See Complaint at 134; (i) Products informed Plaintiff that it is not the same company as LFI. See Complaint at ¶ 37. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO TRANSFER VENUE PURSUANT TO PA. R. CIV. P. 1006(e) 7. Pursuant to Pa. R. Civ. P. 1028(a)(1) a defendant may assert an objection based upon improper venue. 8. With respect to the proper venue in which to assert a claim against a corporation, the Pennsylvania Rules of Civil Procedure provide: (a) Except as otherwise provided by an act of assembly or by subdivision (b) of this Rule [addressing venue of actions against insurance companies], a personal action against a corporation or similar entity may be brought in and only in: (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) a county where the cause of action arose; or (4) a county where a transaction or occurrence took place out of which the cause of action arose. -3- PHLDMS 1 3073729v.3 Pa. R. Civ. P. 2179. 9. Products is a Delaware corporation which was formed on December 15, 2005 and which purchased certain assets of LFI from LFI's foreclosing secured creditor. See Certification of John D. Wilbur ("Wilbur Certification") at T¶ 2, 7, attached hereto and marked as Exhibit "B." 10. Products' sole place of business in Pennsylvania is located at 1334 Lenape Road, West Chester, Chester County, Pennsylvania. See Wilbur Certification at $ 3. 11. Although Products occupies the facility formerly operated by LFI, the two corporations are distinct, Products having purchased certain personal property of LFI at foreclosure sales conducted by the secured creditors of LFI. See Wilbur Certification at ¶¶ 5-7. 12. Products purchased the foreclosed assets on January 1, 2006, more than 8 months after Plaintiff issued the purchase order to LFI and more than 6 months after Plaintiff forwarded payment to LFI. See Wilbur Certification ¶ 7. 13. From the date of its formation until the present, Products has neither conducted any business in Cumberland County, Pennsylvania nor engaged in any business transaction with any person or entity with a place of business in Cumberland County. See Wilbur Certification at ¶8 14. Because Products does not maintain any place of business in Cumberland County, does not regularly conduct business in Cumberland County and is a total stranger to the transaction between Plaintiff and LFI, there is no basis for venue in Cumberland County for either of the claims asserted against Products in the Complaint. WHEREFORE, Defendant, Lenape Forged Products Corp., respectfully requests this Court to dismiss Counts II and IV of Plaintiff's Complaint and require Plaintiff to file any such claims in Chester County or, in the alternative, to transfer this action to Chester County. -4- PHLDMS 1 3073729v.3 DEMURRER - FAILURE TO ALLEGE BREACH OF CONTRACT 15. Products incorporates by reference paragraphs 1 through 14 of these Preliminary Objections as fully as though each were set forth herein at length. 16. Count 11 of the Complaint purports to assert a claim against Products for breach of contract that Plaintiff admittedly entered into with LFI only. 17. Count II simply ignores the fact that, all of the transactions and occurrences out of which Plaintiff's cause of action arose, if it has one, occurred prior to the time when Products came into existence. 18. The Complaint asserts that Plaintiff entered into a contract with LFI (not Products) to produce a forging billet. See Complaint at ¶¶ 11-20. 19. Pursuant to its contract with LFI, Plaintiff alleges that it forwarded payment to LFI on or about June 7, 2005. See Complaint at ¶ 18. 20. Plaintiff further avers that despite receiving payment, LFI failed to deliver the forged billet on September 28, 2005 as promised. See Complaint at ¶ 38. 21. Products did not come into existence and purchase certain assets of LFI for approximately three (3) months after LFI allegedly failed to deliver the billet. See Wilbur Certification at ¶ 2. 22. Despite having a contract only with LFI, Plaintiff asked Products to refund its payment and Products refused. See Complaint at ¶ 21. 23. Because Products is a stranger to a contract between two third parties, Products has no liability to either party under the contract. 24. Accordingly, Plaintiff's Complaint fails to state a cause of action against Products for breach of contract. -5- PHLDMS 1 3073729v.3 WHEREFORE, Defendant, Lenape Forged Products Corp., respectfully requests this Court to dismiss Count II of Plaintiff s Complaint, as to Products, with prejudice. DEMURRER - FAILURE TO STATE A CAUSE OF ACTION FOR FRAUD 25. Products incorporates by reference paragraphs 1 through 24 of these Preliminary Objections as fully as though each were set forth herein at length. 26. To properly plead a cause of action for fraud, a plaintiff is required to allege (i) a misrepresentation, (ii) the fraudulent utterance thereof, (iii) the intention by the maker that the recipient will thereby be induced to act, (iv) justifiable reliance by the recipient upon the misrepresentation and (v) damage to the recipient as the proximate result. Scaife Company v. Rockwell Standard Corp., 446 Pa. 280, 285 A.2d 451 (1971). 27. The only representations which Plaintiff attributes to Products in the Complaint are that: (a) Products forwarded a notice of "New Company Name" to Plaintiff on or about October 11, 2005. See Complaint at ¶ 22; (b) On December 21, 2006, employees of Products promised that they would attempt to remediate the disappearance of the payment made by LFI through negotiations with Elwood Quality Steel. See Complaint at ¶ 32; (c) Employees of Products subsequently promised to provide Plaintiff with a proposal for recovery of Plaintiffs payment but failed to do so. See Complaint at ¶¶ 35, 36; and (d) Products informed Plaintiff that it is not the same company as LFI and not responsible for LFI's obligations. See Complaint at ¶¶ 37, 49. 28. Fatal to Plaintiff s claim for fraud is the fact that all of the alleged representations by Products occurred after Plaintiff had entered into the alleged contract with, and paid funds to, LFI and after Plaintiff allegedly sustained damages as a result of LFI's failure to perform. As a result, with respect to Products, the critical elements of justifiable reliance and proximate cause of damage would be impossible to establish even if Plaintiff could prove that Products had made -6- PHLDMS ] 3073729v.3 false representations with the intention that Plaintiff would rely upon same, which assertions Products expressly denies. 29. Moreover, pursuant to Pennsylvania law, the failure of a party to perform an act or pursue a course of conduct consistent with that party's prior representation does not render those prior representations fraudulent. Wood v. R.R. Donnelly Sons Company, 888 F.2d 313 (3d. Cir. 1989). Because the alleged representations attributed to Products constitute expressions of Products' purported intent to pursue a course of conduct at some time in the future, none of the representations attributed to Products could possibly constitute a misrepresentation of an existing fact. 30. Base upon the foregoing, Plaintiff s Complaint fails to allege a cause of action against Products for common law fraud. WHEREFORE, Defendant, Lenape Forged Products Corp., respectfully requests that Count IV of Plaintiff's Complaint be dismissed with prejudice. THE COMPLAINT FAILS TO PLEAD FRAUD WITH PARTICULARITY 31. Products incorporates by reference paragraphs 1 through 30 of these Preliminary Objections as fully as though each were set forth herein at length. 32. Pennsylvania Rule of Civil Procedure 1019(b) provides: Averments of fraud or mistake, shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally. As stated above, in order to plead a cause of action for fraud, a party must allege a misrepresentation, the fraudulent utterance thereof, an intention by the maker that the recipient will thereby be induced to act, justifiable reliance by the recipient on the misrepresentation and damage to the recipient as the proximate result. -7- PHLDMS 13073729v.3 33. As set forth more fully above, the Complaint fails to allege, with specificity, any statement of fact by Products which would establish a cause of action for fraud. 34. Plaintiff s conclusory statements contained in Count IV of the Complaint fail to satisfy the specificity requirements set forth in Pa. R. Civ. P. 1019(b). See Ski Roundtop, Inc. v. Hall, 265 Pa. Super. 266,401 A.2d 1203 (1979). 35. Accordingly, Count IV of Plaintiff Complaint must be stricken. WHEREFORE, Defendant, Lenape Forged Products Corp., respectfully requests that Count IV of Plaintiffs Complaint be stricken pursuant to Pa. R. Civ. P. 1028(a)(2) for failure to comply with Pa. R. Civ. P. 1019(b). Respectfully submitted, WHITE AND WILLIAMS LLP By: (7)'a't I Z? A?-- e T. Ostrow, Esquire StO Jo h G. Gibbons, Esquire 1800 One Liberty Place Philadelphia, PA 19103 Telephone (215) 864-7000 Telecopier (215) 864-7123 -8- PHLDMS 1 3073729v.3 ?b?? ? ? ?? r:lhILE5\DATAFILE\General\Cutrent\l 1093.1 I xomplaint\mas Created: 9/20i04 0:06PM Revised: 1/19/07 M09AM 11093.11 David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., Plaintiff, V. LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA % 4? NO. C/L l.r? CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED -J, NOTICE You have been sued in court. If you wish to defend against the claims set forth in the followings pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering n a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may t,> proceed without you and a judgment maybe entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 r 110G. V%Jr") -h?.ar+«.., ,s ?r Telephone (717) 249-3166 fn TeftOn *NW, I hem unto set ON Iv, -1d the seed at COW, ft. hiS- 6. Both Lenape Forge, Inc. and Lenape Forged Products are, upon information and belief, companies engaged in the business of inter alia producing raw forgings on order for machine shops such as Calabrese. Upon information and belief, both Lenape Forge, Inc. and Lenape Forged Products are listed as currently active business entities with the Commonwealth of Pennsylvania's Department of State Corporate Bureau. 8. Lenape Forge, Inc., during all times relevant to the transactions described in this Complaint, regularly conducted and conducts business in Cumberland County through its contacts and contracts with Calabrese and other customers and potential customers. 9. Lenape Forged Products, during all times relevant to the transactions described in this Complaint, regularly conducted and conducts business in Cumberland County through its business contacts with Calabrese and other customers and potential customers. 10. This suit is based upon payment by Calabrese & Sons, Inc., in the amount of $37,411.02, for Forging Billet (raw material) for a Calabrese & Sons, Inc., contract with Naval Inventory Control Point Philadelphia (NAVCP) 11. On or about November 18, 2004, Calabrese & Sons, Inc., sought quotes for nine (9) forgings per a drawing designated as CS 17-61556-2. Exhibit 1 attached and incorporated herein is a copy of the Request for Quotation, delivered to and received by Lenape Forge, Inc. 12. On or about December 2, 2004, Lenape Forge, Inc., submitted a successful Quotation #12-02-2004 2785, followed by a raw materials invoice 41209-1 dated December 9, 2004, and attached and incorporated herein as Exhibit 2. 13. On or about December 13, 2004, an authorized agent of Lenape Forge, Inc. transmitted to Calabrese's buyer, Joey Calabrese, an Invoice number 41209-1 for pre-payment ofraw material in the amount of $37,011.10. A copy ofthe transmittal sheet and invoice is attached and incorporated herein as Exhibit 3. 14. Calabrese in accordance with accepted defense contracting procedures made application through DFAS Columbus Center, a Federal Government Military procurement entity for Advanced Payment for Contract attached and incorporated herein as Exhibit 4. 15. Calabrese generated Purchase Order 704 dated March 14, 2005, in the amount of $37,011.10, attached and incorporated herein as Exhibit 5, transmitted to and received by Lenape Forge, Inc. 16. Lenape Forge, Inc., in turn submitted an invoice in the amount of $37,411.02, for pre- payment ofbillet, a Revised Invoice 41209-1, dated April 8, 2005, the transmittal message from Harry Myers of Lenape Forge Inc and invoice are attached and incorporated herein as Exhibit 6. 17. The Revised Invoice attached as Exhibit 6 includes the note that "Funds will be sent directly to Ellwood Quality Steel upon recipe of funds from Calabrese & Sons, Inc." 18. Payment was made by Calabrese via check number 011041 dated June 7, 2005, in the amount of $37,411.02 and deposited in Lenape Forge Account # 713-07024. A copy of the check, front and reverse with endorsements, is attached and incorporated herein as Exhibit 7. 19. Despite the representations on its invoice, and verbal assurances made on more than one occasion by its officers and agents Lenape Forge, Inc., did not transmit the raw material payment to Ellwood Quality Steel. 20. On June 22, 2005, David Hershbell transmitted a "Revised Purchase Order" attached and incorporated herein as Exhibit 8, indicating a scheduled delivery of 09/28/05 of the forged parts. 21. Both Lenape Forge, Inc. and Lenape Forged Products, through their officers and representatives, refused to return the funds to Calabrese & Sons, Inc. 22. On or about October 11, 2005, Lenape Forged Products transmitted the document attached as Exhibit 9 and incorporated herein by reference, to Calabrese and, upon information and belief, other customers of Lenape Forge, Inc., advising of a "new company name" and contact information. 23. The note attached at Exhibit 9 represents that ..."[t]here is a new company name; that all extension numbers within the new company have remained the same as with Lenape Forge, Inc.; and that e-mail addresses and the Lenape Forge, Inc., domain name (Lenape.com) remained the same." 24. Upon information and belief, the domain name and website was established by Lenape Forge, Inc., in the calendar year 2004 or 2005 (please see Exhibit 2). 25. Calabrese & Sons, Inc.'s contact through Lenape Forged Products is the same individual who transmitted the Revised Invoice at Exhibit 8, on behalf of Lenape Forge, Inc., David Hershbell. 26. Hershbell had advised Joe Calabrese, President ofCalabrese that Lenape Forge, Inc.'s personnel had "underpriced" their initial quote to Calabrese, and Joe Calabrese, therefore, agreed to the revised price for the final product represented in Exhibit 8. 27. Moreover, Hershbell advised Joe Calabrese that Lenape Forge, Inc., did indeed receive the payment transmitted by Calabrese, but that those funds were no longer available, through no fault of Calabrese & Sons, Inc. 28. At no time in calender year 2005 did Hershbell or any employee of Lenape Forge, Inc., advise Calabrese that Lenape Forge Inc., did not intend to fulfill its obligation to Calabrese. 29. In fact, at the time (June 2005) he was negotiating with Joe Calabrese to revise and increase the amount of the final contract price for the parts, Hershbell was aware that Lenape Forge, Inc., was suffering financial difficulties, and that the payment for Billett had been diverted to recipient[s] other than the intended and promised Ellwood Quality Steel. 30. Moreover, Hershbell was aware, and has acknowledged to Joe Calabrese in person that he was aware that the funds submitted by Calabrese were an advance on contract payments received from the government. 31. Lenape Forge, Inc. and Lenape Forged Products are both experienced Government contractor companies, and through their common employees and directors, including but not limited to Hershbell, are aware, and have acknowledged personally to Joe Calabrese that the disappearance of advanced government funds is very problematic to Calabrese, with the actual and potential effect of damaging Calabrese's standing as a Federal contractor, with actual and potential loss of business, profits, and contracting opportunities a direct consequence of the failure of Lenape Forge, Inc. and Lenape Forged Products to make good on their contract, and promises to work in good faith to remedy the harm to Calabrese. 32. Lenape Forged Products, through David Hershbell and Erich Stolz, promised and represented to Joe Calabrese, the President of Calabrese & Sons, Inc., in a December 21, 2006, meeting at the common West Chester address of both Lenape Forge, Inc. and Lenape Forged Products that they would attempt to remediate the disappearance of the Calabrese billet payment through a renegotiated contract with Ellwood Quality Steel and with Calabrese & Sons, Inc., for the production of the required forgings. 33. Lenape Forged Products and Lenape Forge, Inc., were expressly reminded of the facts they already knew at the December 21, 2006 meeting that the funds that had been forwarded to Lenape Forge, Inc., were federal government contract pre-payment funds and that the disappearance of those funds, while in Lenape Forge, Inc.'s custody, was causing serious problems to Calabrese's relationship with one of its primary military contract buyers. 34. Despite their knowledge of the seriousness of the situation, Lenape Forge, Inc. and Lenape Forged Products' representatives nevertheless failed to submit any proposal to Calabrese, and upon information and belief, failed, contrary to their representations, to contact Ellwood City Steel to determine options for obtaining the billet that Calabrese had paid for. 35. Hershbell and Stolz expressly acknowledged the damage that was being caused to Calabrese, acknowledging that a lawsuit was the least mutually acceptable manner in which to resolve the dispute, and promised to take action and provide Calabrese with a proposal. 36. Instead, on behalf of Lenape Forge, Inc. and Lenape Forged Products they did nothing, knowing full well and intending that further harm would befall Calabrese in its relationship with primary military procurement customers. 37. Lenape Forged Products has taken the position that it is not the same company as Lenape Forge, Inc. 38. Once it became apparent that Hershbell and Stolz had no intention to fidfill the obligations and promises they made on behalf of Lenape Forge, Inc. and Lenape Forged Products, Calabrese was forced to obtain materials through alternative sources and continues to suffer the consequences of the improper retention of its down payment funds by Lenape Forge, Inc., which further benefitted Lenape Forged Products. COUNT I - BREACH OF CONTRACT Calabrese & Sons, Inc. v. Lenape Forge, Inc. 39. The averments of the preceding paragraphs 1 through 38 of this Complaint are incorporated herein by reference as fully set forth. 40. Lenape Forge, Inc.'s actions constitute ofbreach of contract with Calabrese & Sons, Inc., for reasons stated in this Complaint. WHEREFORE, PlaintiffCalabrese & Sons, Inc., request that this Honorable Court enter judgment in its favor for the down payment fiords in the amount of $3 7,411.02, together with statutory interest, costs and such other relief as the Court deems just and reasonable under the circumstances. COUNT II - BREACH OF CONTRACT Calabrese & Sons, Inc. v. Lenape Forged Products Corporation 41. The averments of the preceding paragraphs 1 through 40 of this Complaint are incorporated herein by reference as fully set forth. 42. Lenape Forged Products' actions constitute a breach of contract with Calabrese & Sons, Inc., for reasons stated in this Complaint. WHEREFORE, PlaintiffCalabrese & Sons, Inc., request that this Honorable Court enter judgment in its favor for the down payment funds in the amount of $37,411.02, together with statutory interest, costs and such other relief as the Court deems just and reasonable under the circumstances. COUNT III - FRAUD Calabrese & Sons, Inc. v. Lenape Forge, Inc. 43. The averments of the preceding paragraphs 1 through 42 of this Complaint are incorporated herein by reference as fully set forth. 44. Lenape Forge, Inc., through its officers and/or agents improperly and knowingly converted the raw material deposit funds transmitted by Calabrese & Sons, Inc., and have consistently refused to either reimburse Calabrese & Sons, Inc., for the missing funds or to produce raw materials required under the contract. 45. Lenape Forge, Inc., undertook these actions knowing and intending that those actions would cause damages, embarrassment and loss of business and potential serious consequences in Calabrese's contracting relationship with the federal government. 46. Said actions and intent to cause harm constitute a fraud upon Calabrese & Sons, Inc., and punitive damages, including but not limited to, attorney's fees are appropriate. WHEREFORE, PlaintiffCalabrese & Sons, Inc., respectfully prays that this Honorable Court will enter an Order in its favor granting payment of the raw material invoices paid in the amount of $37,411.02, plus statutory interest costs, attorney's fees, punitive damages and such other relief as the Court deems just and reasonable under the circumstances. COUNT IV - FRAUD Calabrese & Sons. Inc. v. Lenape Forged Products Corporation 47. The averments of the preceding paragraphs 1 through 46 of this Complaint are incorporated herein by reference as fully set forth. 48. Upon information and belief, Lenape Forged Products takes the position and intended through its incorporation, to succeed to the assets of Lenape Forge, Inc., and to avoid legitimate obligations of Lenape Forge, Inc. 49. Representatives of Lenape Forged Products formerly or currently employed by Lenape Forge, Inc., have advised Calabrese & Sons, Inc., that Lenape Forged Products does not acknowledge any obligation to Calabrese & Sons, Inc. for the raw material funds down payment. 50. Upon information and belief, Lenape Forged Products' position is an attempt to improperly separate the assets from the liabilities of Lenape Forge, Inc., and deny Calabrese & Sons, Inc., access to its funds which Lenape Forge, Inc., and Lenape Forged Products acknowledge were received from Calabrese & Sons, Inc., which actions are in violation of the intent of the successor liability doctrine. 51. Lenape Forge, Inc., and Lenape Forged Products undertook these actions knowing and intendingthat those actions would cause damage, embarrassment and loss of business and potential serious consequences in Calabrese's contracting relationship with the federal government. 52. Said actions and intent to cause harm constitute a fraud upon Calabrese & Sons, Inc., and punitive damages, including but not limited to, attorney's fees are appropriate. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfullyprays that this Honorable Court will enter an Order in its favor granting payment of the raw material invoices paid in the amount of $37,411.02, plus statutory interest costs, attorney's fees, punitive damages and such other relief as the Court deems just and reasonable under the circumstances. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO B Y\ David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: January 19, 2007 Attorneys for Plaintiff 406 BRANDY LANE s MECHANICSBURG, PA 17055 PHONE 717-766-4771 FAX 717-697-6506 ftx To: QUOTING DEPARTMENT From, JOEY CALABRESE Fax: Pages: 1 OF 2 Phone: Date: 11118/2004 Re: 704 CC: O Urgent 0 For Review ? Please Comment O Please Reply 0 Please Recycle QUOTE PRICE AND DELIVERY FOR THE FOLLOWING: 9 EA- FORGINGS PER DRAWING CS17-61556-2 Exhibit "1" ?v 0 W r! -4 :r to It _T ro M.. ' SK.-y ?3 xM o c.v, M o . Z- Elfin n t,, d rD: ??+ in CL C r rn L. N -%Rw t D r : : H( Uf ? "' N :: mo A a r- m is a ?e n •J r4 4-+ ?-' no - m ?.b ° CA •• C ? ;nOc n (fI N ? 1C t) ? N iTI 3 co?mt iocbi? ;in y :' rn :15 (A I MM IL O R&I;g m .. as M?+m O ! „ p ? rn ?p r~N? ??mor+ul Aat N ? ? ? r rn» ?, rn prnp-a... r- ? ° . ?r P o3 N? •? y9t.r mMM I m to Z wfnw A -1 t t -4 CA?'+ * Wrn mw- IOx o D D M ?w y v Z AC ? cn a w a7 osOODOG ? • N m t7=? ?tiii! r ?w a p ?yww ft :a M4 r-+ N Ww9 .. S'imZ MM =C D m M 00 - ? m a r m I c-) cn D W M O N C D z ;0 z N G-) Cl C> rn _u 0 -+. ti7 W m D? Gd .a --I rn o °~ n ?. in z c 70 Lenaps Forge Inc. 1334 Lenape Road West Chester, Pa 19382 U.S.A. Ph: 610.793.1500 Fax: 610.793.0391 Invoice Number: 41209-1 Cate: 09-099- 04 Ship To Calabrese d Sons Calabrese & Sons 406 Brandy Lane Mechanicsburg, PA 17055 Tema Due Data Ship via sd"P NM Due Upon Receipt Upon Receipt QwM" Dmirlpl{on Unit Price Mnounl 8 pcs 4130 Billet per AMI.-S-6758(8) 7208 Its par pie= $0.464b $37,011.1 Calabrese PO 704 progress billing approved by J. Calabrese Saks Tarr $0.00 Invoice Total: $97,011.1 Amount Pal& $0.00 Amount Due: $37,011.1 ?ape i of IT Exhibit "2" To Lenape Fargo Inc. 1334 Lenape Road West Cheater, Pa 19392 U.S.A. Ph: 610.793-1500 Fax: 610.793.0391 Invoice Numbar: 41209.1 irate: 09-Dec-2004 Ship To Calabrese & Sons Calabrese & Sons 406 Brandy Lane Mechanicsburg, PA 17055 Teens Due Dabs ship Via sdm"nm Due Upon Receipt Upon Receipt Quanft Deeeription Uri" P'1oe Amount 9 pes 4130 Billet per MILS-6758(61 7205 The per piece $0.464b $37.011.1 Calabrese PO 704 Progress billing approved by J. Calabrese Sol" Tax $0.00 Invoice Total: 537,011.1 Amount Paid: SOHO Amount Due: 537,011.1 Page 1 of 1 UALABRESE & SONS, Inc. P.O.?Box 1667 Mechanicsburg, Pennsylvania 17055 (717) 766-4771 (717) 697-6506 FAX Sold to: DFAS COLUMBUS CENTER NORTH ENTITLEMENT OPERATIONS PO BOX 182266 COLUMBUS, OH 43218-2266 Invoice date 02/02/05 Customer Num. Purchase Order # N0038304CP019 Payment terms Sales tax due No Job Number 704 Quantity Nomenclature Description Unit Price Price 1 ADVANCED PAYMENT FOR CONTRACT 37,011.00 N00383-04-C-P019 NSN 1720-01-309-8239 BILLET MATERIAL Delivery Ticket : Completed or Partial Unpaid invoices beyond 30 days wig be assessed a 11/2% Monthly Service Charge. Sub-Total : 37,011.00 Sales tax 6% : 0.00 The Invoice Number should appear on all payments, memos & Total : 37,011.00 correspondence to insure proper crediting to your account. Shipping : Invoice4 TOTAL AMOUNT DUE: 37,011.00 1 rots :J Exhibit "4" CALABRESE & SONS, Inc. Precision Machine Products 406 Brandy Lane P.O. Box 1667 Mechanicsburg, Pennsylvania 17055 PHONE: (717) 766-4771 FAX: (717) 697-6506 Purchase Order Number 704 This number must appear on all correspondence. invoices. INVOICE AND SHIP TO ADDRESS ABOVE Date Terms Vendor Ship Via Delivery F.O.B. Point Payable Quote No. PRIORITY RATING: DOA1 Quote By Certified for National Defense Under DMS Regulations 1. You are required to follow provisions of DMS Regulation regulations and orders of BDSA in obtaining controlled materials and other products and materials needed to fill this of nndinr M nriori?v retina shipping papers & packages. 03/14/05 N-30 WEST CHESTER 12/09/2004 W.B. WOODRING 1 and of all other applicable der, provided it contains a DO Quantity Description r Price 9 EACH FORGING BILLET PER AMS-S-6758, 4130 $37,011.10 LOT CERTS ARE REQUIRED AND MUST ACCOMPANY MATERIAL MERCURY FREE CERTIFICATE APPLIES. MATERIAL MUST BE SHIPPED COMPLETE. ACKNOWLEDGEMENT: PLEASE SIGN AND FAX BACK: We will comply with all provisions of Executive Omer 10925 sign & date of March 6, 1961, and of the rules, regulations, and relevant APPROVED BY orders of the President's Committee on Equal Employment office use: ; Opportunity created thereby. MATERIAL RECEIVED office use: Exhibit "5" 1334 Lenape Road West Chester, Pa. " Phone 610 793 1500 X202, Fax 610 793 3240 LENAPE FAX L FAX: PAGE 1 OF L ?TO -5? Jogs DATE r? .? ?? Jlr ? L u ATTENTION -6 e56r FROM: H. J. MYERS, EXT. 244 !{? t tL4? • r ? REF: PO, ' , L MESSAGE: ?. JOE ? 4 ??, ?avt? Ca?varS?-rt?.1 A: rD r f R',5'-?(tjo Ai, 0. W, W,?(-AXN istj yv"- 0 il-H 47?4"j ??Lc wW cam- rv ?r WCL- s k acid mle7g'-? / 4 4 Myres Exhibit "6" LsnWe Forgo Inc. 1334 L.onapa Road Waal ChwW, Pa 19352 U.SA Ph: 610.763-1600 Fax: 610.793-0361 Invoice Number. 41276.1 DaW 22-Morph 2006 To Ship To t4kbraw li Son, Inc. Calabnw & Son, Ina. 405 &W* Low 406 Brandy Lane P.O. am 1667 P.O. Box 1w Medw* sharp, PA 17066 M-- '--V-6PA 17036 USA USA -100 Tinny 1 0( 1004111 slip VIA Salaapa OM Due On R4eaipt 1 ~ 2M Qua"" 0mumpllat Utdt Pali. AO MM SM4052 b. $37,411. Raw MdOwW kw,*i% PO 704 92,100 In 3 Pco - 31 • ad 4130 Cylindrical inpols chemiltry ony to M644755(5) Capable to yMld. (S) pa O 6599 In Jd*2057 (1) pc Q 7304 Job# 3067-DA %-101, Rw6 Now 1,$3,12Ap* Amouat Oue. SA411-02 NOW. This is a rwi w to Invoice 41209-1 dated 0943ac-04 Funds WHI be cent dkWly to EEllwwood QuWl)r SMd upon Oeoelpt of funds from Caleb M & Son, Inc. Pape l of 1 CALABRESE & SONS INC 406 BRANDY LANE MECHANICSBURG PA 17055 Account Number: 2201002387 Capture Date: June 13, 2005 Item Number: 30007152667 Posted Date: June 13, 2005 Posted Item Number: 164000032 Amount: $37,411.02 Record Type: Debit Current Date: December 01, 2006 GUORESEWNS.INA PO BOX 1667 4MBRANDYLANE A#XMNiMBf K PA. 1705 Memo: PAY TO Txe ORM OF O 011041 <rhon ity DATE aorn.?.ea..+•e+.rxrw++ 6a?eta??s 6Nr WH I dune 7 2Q06 011041 CNEX&OM lhkly? %ve? Thousand Pour l avhd Seven W 02MM Doha A11.02 LENAPEFORG, ING IM4 L54APEROAD WES O EMA PA 19082 001101,11' 1:0313187874 2 20 100 2 313V .+'000344ii02?' ' X z ? 9 (n ?j Fr ? ?? p G 0J1535304 A 0. ^ cs ~ ? ? D '?5 005 e r n 06!32 033 000040 PRB-r+11;1 iP w rt; - + ? i, [TJ . BXT=0820 TVC-080 4 v s T? Y+ia .3 ez W N ? ?; r V ?.. .? z r W .j "? ol M PNAA, FA (Aloft M ?O 41 •2L 0524 ?L s n. W 6 , - ? a z m Exhibit "7" CALABRESE & SVNS, Inc. Purchase Order Number Precision Machine Products 700 406 Brandy Lane This number must appear on P.O. BOX 1667 all correspondence, invoices, Mechanicsburg, Pennsylvania 17055 shipping papers & packages. PHONE: (717) 766-4771 FAX: (717) 697-6506 INVOICE AND SHIP TO ADDRESS ABOVE Date 06/22/05 Terms N-30 Vendor Ship Via CALL C+SI Delivery 09/28/05 F.O.B. Point WEST CHESTER Payable Quote No. 12-02-20042785 REV PRIORITY RATING: DOAI Quote By 11 DAVE HERSHBELL I Certified for National Defense Under DMS Regulations 1. You are required to follow provisions of DMS Regulation 1 and of all other applicable regulations and orders of BDSA in obtaining controlled materials and other products and materials needed to fill this order, provided it contains a DO endlar DX ndnr tv rntina. Quantity Description Price 9 EACH FORGING PER CALABRESE DRAWING 17-61556-2 $13,054.01 REVISED PURCHASE ORDER DO NOT DUPLICATE CERTS ARE REQUIRED AND MUST ACCOMPANY MATERIAL MERCURY FREE CERTIFICATE APPLIES. MATERIAL MUST BE SHIPPED COMPLETE. ACKNOWLEDGEMENT: PLEASE SIGN AND FAX BACK: sign & date We will comply with all provisions of Executive Order 10925 D' of March 6, 1961, and of the rules, regulations, and relevant APPROVE orders of the Presidents Committee on Equal Employment office use: i,, Opportunity created thereby. MATERIAL RECEIVED office use: Exhibit rr8n ai o _ w N 40 z 40 to A t- .0 ? Gr. • is a?- i U 0 4• Z ?w oc ? 0 rn U. ? ago ,; 4.84% - ul-A s 0) a o ?. w v+ t!N g' ? c c ?? o i 13 0 ? as h, O) cu i i I W Z Q t- a Lenape Forged Products Corp. 1334 Lenape Road West Chester, PA 19382 October 11, 2005 Calabrese.& Son, Inc. 406 Brandy Lane PO Box 1667 Mechanicsburg,PA 17055 We are pleased to announce our new company name and contact information: Our new main phone #: (610) 793-5090 Sales & Engr Fax #: (610) 793-3070 Acctg/Main office Fax#: (610) 793-3059 All extension numbers have remained the same. E-mail addresses and the Lenape Forge domain name (Lenape.com) have also remained the same. Exhibit "9" VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., acknowledge I have the authority to execute this Verification on behalf of Calabrese & Sons, Inc., and certify the facts asserted in the foregoing document are true and correct to the best of my knowledge, information and belief. To the extent the content of the document is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904. Calabrese & Sons, Inc. J eph alabrese t z ?11? ? 13 FROM 4?WHITt AND WILLIAMS LLP (TVE) U. .1 4 CERTMCATIt3N I, John D. wilbux hereby submit this Certification in Mort of the Preliminary Objections of Defendant, Lenape Forged Products Corp. to Plaintiff's Complaint and hereby certify as follows: I . I am the President of defendant, Lenape Forged Products Corp. (" Lenape Products') and I am authorized to make thim Certification on its behalf. 2. Lenapo Products is a Delaware corporation incorporated on December 15, 2005. See Good Standing Certificate of Secretary of State of Delaware attached bereto as Exhibit 'W'- I Lenape Products' place of business is located at 1334 Lenape Road, Cheater County, Pennsylvania (the "Chester County Facility", and has no other places of business in the Commonwealth of Pennsylvania. 4. Defendant Leuape Forge, Inc. C Lenape Forge'), is a Pennsylvania corporation formed in 1983. See Pennsylvania Department of State corporate search attached hereto as Exhibit "B". 5. Lenape Forge formerly conducted business at the Chaster County Facility and, upon information and belief, defaulted an loans provided by its seamed lender, Merrill Lynch Business Financial Services, Inc. {"Merrill Lynch'). 6. Lenape Products and Lenape Forge are separatc, unaffiliated companies. Lenape Products neither owns nor cozttrols Lenape Forge and none of the owners or officers of Lenape Forge own or control Lenape Products. 7. On or about January 1, 2006, Lenape Products purchased certain assets of Lenapc Fnrce incated at the Chester County Facility pursuant to & private foreclosure sale conducted by 990-d Z00/100'd Y11-1 99vt9MOZl+ 161M ss ING-ROH WPM 10-90-UVA MOM OWHITE AND WILLIAM9 LLP t'1'UIsJ ?. b UI 10!U'CJU1. 1U. FJiJRWO iu•.•?.... Merrill Lynch. 8. Lenape ProducCS does not have any customers in Cumberland County, Pe=sylvanid, and does not conduct any business there. 9. L =ape Products is not a panty to the alleged contract between the plaiutiff and Lcaape Forge that is the subject of the plaiztti S complaint. In fact, Lenapo Products did not even exist at the time that allegcd contract was made. 1 o. The swuments made herein are true and correct to the best of my knowledge information and belief. 11. The undersigned further understands that the Statements made herein are made subject to the penalties of 18 Pa.C.S.A- § 4904 relating to unswOrn falsifications to authorities. Y)W, ? john D. Wilbur 990-d 200/200'd Y21-1 99YY9v9Z021+ JSIUGO SSBU MS-AM NdZY:90 10-90-SVA t t 1 v EXHIBIT "A" It tI . Defaware ?° T& q7rst State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY °LENAPE POPZM PRODUCTS CORP." IS DULY INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE AND IS- IN GOOD SANDING AND HA3 A LEGAL CORPORATE EXISTENCE SO PAR AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE EIGHTEENTH DAY OF DECEMBER, A.D. 2006. AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO DATE. AND I DO`HSRSBY FURTHER CERTIFY THAT THE FRANCHISE TARES HAVE BEEN PAID TO DATE. AND I DO HEREBY FURTHER CERTIFY THAT THE SAID "LENAPE FORGED PRODUCTS CORP." WAS INCORPORATED ON THE FIFTEENTH DAY OF DECEMBER, A.D. 2005. 4077850' 8300 061158983 HMMSMOh ftKb r, Secretary Of Shft AUTHENTICATION: 5289181 DATE: 12-18-06 n 1 y a EXHIBIT "B" 1 Corporations Corporations Forms Contact Corporations Business ServiceE Business Entity Filing History Date: 3/5/2007 (Select the link above to view the Business Entity's Filing History) Business Name History Name LENAPE FORGE, INC. Business Corporatioi Entity Number: Status: Entity Creation Date: Name Type Current Name i - Domestic - Information 778230 Active 9/14/1983 State of Business.: PA Principal Office Address: 17 WEST MINER STREET WEST CHESTER PA 19380-0 Mailing Address: No Address Officers Name: KREMPA,FRANK S Title: President Address: 1280 LENAPE RD BOX 536 WEST CHESTER PA 19382-0 Name: HORVAT,PETER D Title: Treasurer Address: 1280 LENAPE RD BOX 536 WEST CHESTER PA 19382-0 Name: HORVAT,PETER D Title: Vice President Address: 1280 LENAPE RD BOX 536 WEST CHESTER PA 19382-0 Home I Site Map Site Feedback I View as Text Only Employment w:,r Home Copyright © 2002 Pennsylvania Department of State. All Rights Reserved. Commonwealth of PA Privacy Statement • CERTIFICATE OF SERVICE I, Joseph G. Gibbons, Esquire, hereby certify that I caused a true and correct copy of the foregoing Preliminary Objections to be served upon counsel for Plaintiff on March 7, 2007 via regular first-class mail, postage prepaid, at the following address: David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 Dated:. 1 -7 d PHLDMS 1 3073729v.3 _.a David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., Plaintiff, V. LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORP., Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-428 CIVIL ACTION - LAW : JURY TRIAL DEMANDED AMENDED COMPLAINT TO: LENAPE FORGE, INC. LENAPE FORGED PRODUCTS CORP., Defendant, and its attorney, JOSEPH G. GIBBONS, ESQ. YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED AMENDED COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW comes the Plaintiff, Calabrese & Sons, Inc., by its attorneys, MARTSON LAW OFFICES, and avers the following in support of its claim: 1. Plaintiff, Calabrese & Sons, Inc. ("Calabrese"), is a Pennsylvania corporation with a principal place of business located at 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, Lenape Forge, Inc., is a Pennsylvania corporation with a place of business located at 1334 Lenape Road, West Chester, Chester County, Pennsylvania 19382. 3. Defendant, Lenape Forged Products Corp. ("Lenape Forged Products"), is a Delaware corporation with a place of business located at 1334 Lenape Road, West Chester, Chester County, Pennsylvania 19832. 4. Calabrese & Sons, Inc., is a machine shop in the business of producing machined parts for commercial and military customers. 5. In the normal course of business, Calabrese contracts with forging companies for the production of raw forgings which Calabrese then machines into final finished parts for its customers. 6. Both Lenape Forge, Inc. and Lenape Forged Products are, upon information and belief, companies engaged in the business of inter alia producing raw forgings on order for machine shops such as Calabrese. 7. Upon information and belief, both Lenape Forge, Inc. and Lenape Forged Products are listed as currently active business entities with the Commonwealth of Pennsylvania's Department of State Corporate Bureau. 8. Lenape Forge, Inc., during all times relevant to the transactions described in this Complaint, regularly conducted and conducts business in Cumberland County through its contacts and contracts with Calabrese and other customers and potential customers. 9. Lenape Forged Products, during all times relevant to the transactions described in this Complaint, regularly conducted and conducts business in Cumberland County through its business contacts with Calabrese and other customers and potential customers. 10. This suit is based upon payment by Calabrese & Sons, Inc., in the amount of $37,411.02, for Forging Billet (raw material) for a Calabrese & Sons, Inc., contract with Naval Inventory Control Point Philadelphia (NAVCP). 11. On or about November 18, 2004, Calabrese & Sons, Inc., sought quotes for nine (9) forgings per a drawing designated as CS17-61556-2. Exhibit 1 attached and incorporated herein is a copy of the Request for Quotation, delivered to and received by Lenape Forge, Inc. 12. On or about December 2, 2004, Lenape Forge, Inc., submitted a successful Quotation #12-02-2004 2785, followed by a raw materials invoice 41209-1 dated December 9, 2004, and attached and incorporated herein as Exhibit 2. 13. On or about December 13, 2004, an authorized agent of Lenape Forge, Inc. transmitted to Calabrese's buyer, Joey Calabrese, an Invoice number 41209-1 for pre-payment of raw material in the amount of $37,011.10. A copy of the transmittal sheet and invoice is attached and incorporated herein as Exhibit 3. 14. Calabrese in accordance with accepted defense contracting procedures made application through DFAS Columbus Center, a Federal Government Military procurement entity for Advanced Payment for Contract attached and incorporated herein as Exhibit 4. 15. Calabrese generated Purchase Order 704 dated March 14, 2005, in the amount of $37,011.10, attached and incorporated herein as Exhibit 5, transmitted to and received by Lenape Forge, Inc. 16. Lenape Forge, Inc., in turn submitted an invoice in the amount of $3 7,411.02, for pre- payment of billet, a Revised Invoice 41209-1, dated April 8, 2005, the transmittal message from Harry Myers of Lenape Forge Inc and invoice are attached and incorporated herein as Exhibit 6. 17. The Revised Invoice attached as Exhibit 6 includes the note that "Funds will be sent directly to Ellwood Quality Steel upon receipt of funds from Calabrese & Sons, Inc." 18. Payment was made by Calabrese via check number 011041 dated June 7, 2005, in the amount of $37,411.02 and deposited in Lenape Forge Account # 713-07024. A copy of the check, front and reverse with endorsements, is attached and incorporated herein as Exhibit 7. 19. Despite the representations on its invoice, and verbal assurances made on more than one occasion by its officers and agents Lenape Forge, Inc., did not transmit the raw material payment to Ellwood Quality Steel. 20. On June 22, 2005, David Hershbell transmitted a "Revised Purchase Order" attached and incorporated herein as Exhibit 8, indicating a scheduled delivery of 09/28/05 of the forged parts. 21. Both Lenape Forge, Inc. and Lenape Forged Products, through their officers and representatives, refused to return the funds to Calabrese & Sons, Inc. 22. On or about October 11, 2005, Lenape Forged Products transmitted the document attached as Exhibit 9 and incorporated herein by reference, to Calabrese and, upon information and belief, other customers of Lenape Forge, Inc., advising of a "new company name" and contact information. 23. The note attached at Exhibit 9 represents that ..."[t]here is a new company name; that all extension numbers within the new company have remained the same as with Lenape Forge, Inc.; and that e-mail addresses and the Lenape Forge, Inc., domain name (Lenape.com) remained the same." 24. Upon information and belief, the domain name and website was established by Lenape Forge, Inc., in the calendar year 2004 or 2005 (please see Exhibit 2). 25. Calabrese & Sons, Inc.'s contact through Lenape Forged Products is the same individual who transmitted the Revised Invoice at Exhibit 8, on behalf of Lenape Forge, Inc., David Hershbell. 26. Hershbell had advised Joe Calabrese, President of Calabrese that Lenape Forge, Inc.'s personnel had "underpriced" their initial quote to Calabrese, and Joe Calabrese, therefore, agreed to the revised price for the final product represented in Exhibit 8. 27. Moreover, Hershbell advised Joe Calabrese that Lenape Forge, Inc., did indeed receive the payment transmitted by Calabrese, but that those funds were no longer available, through no fault of Calabrese & Sons, Inc. 28. At no time in calender year 2005 did Hershbell or any employee of Lenape Forge, Inc., advise Calabrese that Lenape Forge Inc., did not intend to fulfill its obligation to Calabrese. 29. In fact, at the time (June 2005) he was negotiating with Joe Calabrese to revise and increase the amount of the final contract price for the parts, Hershbell was aware that Lenape Forge, Inc., was suffering financial difficulties, and that the payment for Billett had been diverted to recipient[s] other than the intended and promised Ellwood Quality Steel. 30. Moreover, Hershbell was aware, and has acknowledged to Joe Calabrese in person that he was aware that the funds submitted by Calabrese were an advance on contract payments received from the government. 31. At no time during the relevant calendar year of 2005 did Hershbell advise Calabrese that his employer was sold, insolvent or in any relevant way unable or unwilling to fulfill its obligations to Calabrese. 32. Lenape Forge, Inc. and Lenape Forged Products are both experienced Government contractor companies, and through their common employees and directors, including but not limited to Hershbell, are aware, and have acknowledged personally to Joe Calabrese that the disappearance of advanced government funds is very problematic to Calabrese, with the actual and potential effect of damaging Calabrese's standing as a Federal contractor, with actual and potential loss of business, profits, and contracting opportunities a direct consequence of the failure of Lenape Forge, Inc. and Lenape Forged Products to make good on their contract, and promises to work in good faith to remedy the harm to Calabrese. 33. Lenape Forged Products, through David Hershbell and Erich Stolz, promised and represented to Joe Calabrese, the President of Calabrese & Sons, Inc., in a December 21, 2006, meeting at the common West Chester address of both Lenape Forge, Inc. and Lenape Forged Products that they would attempt to remediate the disappearance of the Calabrese billet payment through a renegotiated contract with Ellwood Quality Steel and with Calabrese & Sons, Inc., for the production of the required forgings. 34. Mr. Calabrese justifiably relied on the representations and promises from Lenape Forged Products that it would attempt to remediate the disappearance of the Calabrese billet payment. 35. Lenape Forged Products and Lenape Forge, Inc., were expressly reminded of the facts they already knew at the December 21, 2006 meeting that the funds that had been forwarded to Lenape Forge, Inc., were federal government contract pre-payment funds and that the disappearance of those funds, while in Lenape Forge, Inc.'s custody, was causing serious problems to Calabrese's relationship with one of its primary military contract buyers. 36. Despite their knowledge of the seriousness of the situation, Lenape Forge, Inc. and Lenape Forged Products' representatives nevertheless failed to submit any proposal to Calabrese, and upon information and belief, failed, contrary to their representations, to contact Ellwood City Steel to determine options for obtaining the billet that Calabrese had paid for. 37. Hershbell and Stolz expressly acknowledged the damage that was being caused to Calabrese, acknowledging that a lawsuit was the least mutually acceptable manner in which to resolve the dispute, and promised to take action and provide Calabrese with a proposal. 38. Instead, on behalf of Lenape Forge, Inc. and Lenape Forged Products they did nothing, knowing full well and intending that further harm would befall Calabrese in its relationship with primary military procurement customers. 39. Lenape Forged Products has taken the position that it is not the same company as Lenape Forge, Inc. 40. Once it became apparent that Hershbell and Stolz had no intention to fulfill the obligations and promises they made on behalf of Lenape Forge, Inc. and Lenape Forged Products, Calabrese was forced to obtain materials through alternative sources and continues to suffer the consequences of the improper retention of its down payment funds by Lenape Forge, Inc., which further benefitted Lenape Forged Products. 41. At a meeting on December 21, 2006, Lenape Forged Products, though David Hershbell and Erich Stolz, represented to Joe Calabrsese, the President of Calabrese & Sons, Inc., that it would attempt to remediate the disappearance of the Calabrese billet payment through a renegotiated contract with Ellwood Quality Steel and Calabrese & Sons, Inc. for the production of the required forgings. 42. Calabrese & Sons, Inc. justifiably relied on the representations and promises from Lenape Forged Products that it would attempt to remediate the disappearance of the Calabrese billet payment. 43. Lenape Forged Products' representatives nevertheless failed to submit any proposal to Calabrese, and upon information and belief, failed, contrary to their representations, to contact Ellwood City Steel to determine options for obtaining the billet that Calabrese had paid for. 44. Calabrese & Sons, Inc. has been prejudiced by relying on the misrepresentations of Lenape Forged Products' representatives and upon the representations of the mailings attached to this pleading. Consequently, Lenape Forged Products is estopped from denying its representations and from repudiating its conduct. COUNT I - BREACH OF CONTRACT Calabrese & Sons, Inc. v. Lenape Forge, Inc. 45. The averments of the preceding paragraphs 1 through 44 of this Complaint are incorporated herein by reference as fully set forth. 46. Lenape Forge, Inc.'s actions constitute of breach of contract with Calabrese & Sons, Inc., for reasons stated in this Complaint. WHEREFORE, Plaintiff Calabrese & Sons, Inc., request that this Honorable Court enter judgment in its favor for the down payment funds in the amount of $37,411.02, together with statutory interest, costs and such other relief as the Court deems just and reasonable under the circumstances. COUNT II - BREACH OF CONTRACT Calabrese & Sons, Inc v Lenape Forged Products Corporation 47. The averments of the preceding paragraphs 1 through 46 of this Complaint are incorporated herein by reference as fully set forth. 48. Lenape Forge, Inc. transferred its assets to Lenape Forged Products in an attempt to hinder, delay or defraud its creditors, including Calabrese & Sons, Inc. Consequently, the conveyance between Lenape Forge, Inc. and Lenape Forged Products violated the Pennsylvania Uniform Transfer Act. 49. Lenape Forged Products' actions constitute a breach of contract with Calabrese & Sons, Inc., for reasons stated in this Complaint. WHEREFORE, Plaintiff Calabrese & Sons, Inc., request that this Honorable Court enter judgment in its favor for the down payment funds in the amount of $37,411.02, together with statutory interest, costs and such other relief as the Court deems just and reasonable under the circumstances. COUNT III - FRAUD Calabrese & Sons, Inc. v. Lenape Forge, Inc. 50. The averments of the preceding paragraphs 1 through 49 of this Complaint are incorporated herein by reference as fully set forth. 51. Lenape Forge, Inc., through its officers and/or agents improperly and knowingly converted the raw material deposit funds transmitted by Calabrese & Sons, Inc., and have consistently refused to either reimburse Calabrese & Sons, Inc., for the missing funds or to produce raw materials required under the contract. 52. Lenape Forge, Inc., undertook these actions knowing and intending that those actions would cause damages, embarrassment and loss of business and potential serious consequences in Calabrese's contracting relationship with the federal government. 53. Said actions and intent to cause harm constitute a fraud upon Calabrese & Sons, Inc., and punitive damages, including but not limited to, attorney's fees are appropriate. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfully prays that this Honorable Court will enter an Order in its favor granting payment of the raw material invoices paid in the amount of $37,411.02, plus statutory interest costs, attorney's fees, punitive damages and such other relief as the Court deems just and reasonable under the circumstances. COUNT IV - FRAUD Calabrese & Sons. Inc. v. Lenape Forged Products Corporation 54. The averments of the preceding paragraphs I through 53 of this Complaint are incorporated herein by reference as fully set forth. 55. Lenape Forge, Inc. transferred its assets to Lenape Forged Products in an attempt to hinder, delay or defraud its creditors, including Calabrese & Sons, Inc. Consequently, the conveyance between Lenape Forge, Inc. and Lenape Forged Products violated the Pennsylvania Uniform Transfer Act. 56. Upon information and belief, Lenape Forged Products takes the position and intended through its incorporation, to succeed to the assets of Lenape Forge, Inc., and to avoid legitimate obligations of Lenape Forge, Inc. 57. Representatives of Lenape Forged Products formerly or currently employed by Lenape Forge, Inc., have advised Calabrese & Sons, Inc., that Lenape Forged Products does not acknowledge any obligation to Calabrese & Sons, Inc. for the raw material funds down payment. 58. Upon information and belief, Lenape Forged Products' position is an attempt to improperly separate the assets from the liabilities of Lenape Forge, Inc., and deny Calabrese & Sons, Inc., access to its funds which Lenape Forge, Inc., and Lenape Forged Products acknowledge were received from Calabrese & Sons, Inc., which actions are in violation of the intent of the successor liability doctrine. 59. Lenape Forge, Inc., and Lenape Forged Products undertook these actions knowing and intending that those actions would cause damage, embarrassment and loss of business and potential serious consequences in Calabrese's contracting relationship with the federal government. 60. Said actions and intent to cause harm constitute a fraud upon Calabrese & Sons, Inc., and punitive damages, including but not limited to, attorney's fees are appropriate. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfully prays that this Honorable Court will enter an Order in its favor granting payment of the raw material invoices paid in the amount of $37,411.02, plus statutory interest costs, attorney's fees, punitive damages and such other relief as the Court deems just and reasonable under the circumstances. Respectfully submitted, MARTSON LAW OFFICES By Z J) ) David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: y + 07 Attorneys for Plaintiff VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., hereby verify that I am authorized to sign this Verification and have reviewed the foregoing document and to the extent that the foregoing document contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. Calabrese & Sons, Inc, Date: y /55/07 J eph Calabrese P:1F,rks10ATAMZC,MMRCurh!M%itM%I 1093.11 wm2 406 BRANDY LANE MECHANICSBURG, PA 17055 PHONE 717-766-4771 FAX 717-697-6506 0 To: QUOTING DEPARTMENT From: JOEY CALABRESE Fax: Pages: 1 OF 2 Phone: Date: 11/18/2004 Re: 704 CC: ? Urgent m For Review ? Please Comment ? Please Reply ? Please Recycle QUOTE PRICE AND DELIVERY FOR THE FOLLOWING: 9 EA- FORGINGS PER DRAWING CS17-61556-2 Exhibit "1" ltl V -n%2 1'T'1 N m 0 M x ? Z07?O; f O? • D. -1 I/C4 - . m • ? U7 • f11 VI NON ul N f11 - Z f O M C0 m z r m An 32 Cl> F- MCU m (n Z ? D WM _ xz V J w N A D Z o ? Cn G d ? CD - 4 41 Xgrnr-"a? ?A 9 O ro-4t-4-4 -4 =Z@7X0 -a m-ow ?z-4 0m U.,=;2 or" ,. ..4s?.oracr S x •'??.9s OUR ?n?od ?+xse r C7 A a Tr 7C M O m w ? M v41$ -a SR '? T % V C6; 4O'- ?C? 1 ^m c Y v?aC^ N -w Q {p If-- la ?+ pl r r.7CA o¢ Q, 1 a _On 7 41.4 in na-V 0 nptat ra'T O n ih m o ?m?• N M co To n °o• ?m s rn N C C) Zg b? m .,ww LnBn„=. ffa Lenape Forge Inc. 1334 Lenape Road West Cheste(. Pa 19392 U.S.A. Ph: 610.793-ISM Fax: 610-793-0391 Invoice Number. 41209.1 Oate: 09-Dec-2004 To Ship To Calabrese & Sons Calabrese & Sons 406 Grandy Lane Mechanicsburg, PA 17055 Tom* Due Dabs! Ship Via Due Upon Receipt Upon Recut Quandly Description Unit Peke Asnowd 9 pq 4130 Gillet per MIL-$6758(8) 720816s per piece $0.46116 $37,011.1 Calabrese PO 704 Progress bdiing approved by J. Calabrese Sales TOM 50.00 Invoice Totel: $37.011.1 Amount Pald: $0.00 Amount Due: $37,011.1 Elf(IMD Page 1 of 1 Exhibit "2" L?= 11 1,ensFa Fa?ge M app 1932 6?L?93.12? e? 3 ? fa e.co bw1o0o-??9fi3 n 2a Y DA"? 1Z? t3 ,( ? U,Lo 9A J Ji ie - d? y`°? djA E%hibit it' jMXL. • ?:.:? Lenape Forge Inc. 1334 Lenaps Road West Cheater, Pa 19382 U.S.A. Ph: 610.7934500 Fax: 610.793-0391 To Invoice Number 4`1209-11 Oate: G"ec-=4 Ship To Calabrese 3 Sons Calabrese & Sons 408 Brandy Lane Mechanicsburg, PA 17055 Toms Due Dab ship via 32111ppe Due Upon Receipt Upon Receipt Quanft Description Unit PHoe Amount 8 pee 4130 Billet per MILS-6756(81 7206 The per piece $0.4611b $37,011.1 Calabrese PO 704 Progress billing approved by J. Calabese Sates Tax $0.00 Invoice To* $37.011.1 Amount Pakt $0.00 Amount Due: 537.011.1 Page 1 of 1 %OALAOMCOC at ounal Inc. KID. Box 1667 Mechanicsburg, Pennsylvania 17055 (717) 7664771 (717) 697-6506 FAX Sold to: DFAS COLUMBUS CENTER NORTH ENTITLEMENT OPERATIONS PO BOX 182266 COLUMBUS, OH 43218-2266 Invoice date 02/02/05 Customer Num. Purchase Order # N0038304CP019 Payment terms Sales tax due No Job Number 704 1 -1 QQuantity Nomenclature Description Unit Price Price -? 1 ADVANCED PAYMENT FOR CONTRACT 37,011.00 N00383-04-C-P019 NSN 1720-01-309-8239 BILLET MATERIAL Delivery Ticket : Completed or Partial Unpaid Invoices beyond 30 days vAl be assessed a 1 W% Monthly Service Charge. Sub-Total : 379011.00 Sales tax 6% : 0.00 The Invoice Number should appear on all payments, memos & Total : 379011.00 cowespondence to insure proper crediting to your account. Shipping : Invoice# TOTAL AMOUNT DUE:11 37,011.00 Exhibit "4" CALABRESE & SONS, Inc. Precision Machine Products 406 Brandy Lane P.O. Box 1667 Mechanicsburg, Pennsylvania 17055 PHONE: (717) 766-4771 FAX: (717) 697-6506 Purchase Order Number IF- 704 -j This number must appear on INVOICE AND SHIP TO ADDRESS ABOVE Date Terms Vendor Ship Via Delivery F.O.B. Point Payable Quote No. PRIORITY RATING: DOA1 Quote By Certified for National Defense Under DMS Regulations 1. You are required to follow provisions of DMS Regulatior regulations and orders of BDSA in obtaining controlled materials and other products and materials needed to fill this o and/or DX oriority ratina. all correspondence. invoices. shipping papers & packages. 03/14105 N-30 WEST CHESTER 12/09/2004 W.B. WOODRING 1 and of all other applicable rder, provided it contains a DO Quantity Description Price 9 EACH FORGING BILLET PER AMS-S-6758, 4130 $37,011.10 LOT CERTS ARE REQUIRED AND MUST ACCOMPANY MATERIAL MERCURY FREE CERTIFICATE APPLIES. MATERIAL MUST BE SHIPPED COMPLETE. ACKNOWLEDGEMENT: PLEASE SIGN AND FAX BACK: We will comply with all provisions of Executive Order 10925 sign & date C of March 6, 1961, and of the rules, regulations, and relevant APPROVED BY orders of the President's Committee on Equal Employment office use: i Opportunity created thereby. MATERIAL RECEIVED office use: Exhibit 'r5" 1334 Lenape Road West Chester, Pa. Phone 610 7931500 X202, Fax 610 793 3240 LENAPE FORGE INC. ds? " FAX FAX: TO -s? Sods , ATTENTION -k6 al4&656- I FROM: H. J. MYERS, EXT. 244, ? REF: If PAGE 1 OF f 06 DATE MESSAGE: ?. Joe . ©up, D?1ma? (v?,rsa-n A-r?-a I ?'?t -?rND /nl MfZ-- P0. Ujo- -36L)a mucw6- wr?4 0'-p, ?Je-4n4,4?4 IVOUR. 04944, Exhibit "6" OL Lonapa Farp Inc. 1334 Laaapa Road Watt Chadw, Pa 19302 U.S.A Ph: 810.7934500 Ftuc 610.793-0391 Invoice Number. 41200.1 Data: 22-Mavh 2W5 To Ship To 8 apt, Inc. aleb wo 3 Son, Inc 400 Bandy Lana 400 &a* Lana P.O. Boat 1e07 P.O. Sax 1007 Madwftdx% PA 17055 Modw-, , PA V055 USA USA Tines Do Dale aiM f VY p Dw on r16=0 00-April 200.5 Qwwupt Daaalptlaa Uel! Pr1M ANmm Raw MsWW Mw*kq PO 704 02,`100 ft $44002 k =37.411. 3 Pcs - 31 • ad 4130 CyDtdr W inpals elmnlWy only to MA-3-675ND) Capable to ylaid: (0) Pa o 8099 on JOW857 (1) Pc Q 7304 rase 20674)A Q-101, Rare Natsa 1.2,3,12 Apply Amount Dtw SP.411. Nobs. This is a rwWm to invoice 41200-1 dated 09-Dec-04 Funds wNl be sent &o* to Ehvood Quality Steel upon recelpt d funds from calm 6 Stet, lnc. Paps 1 of 1 Current Date: December 01, 2006 CALABRESE & SONS INC 406 BRANDY LANE MECHANICSBURG PA 17055 Account Number: 2201002387 Capture Date: June 13, 2005 Item Number: 30007152667 Posted Date: June 13, 2005 Posted Item Number: 164000032 Amount: $37,411.02 Record Type: Debit cuffs asms'lm PO BOX IM7 40MBRANDYLANE AfXMNtCS9tJ W, PA.17055 Memw. PITY TO THE MEA OF 011041 am CHMK HM asrrrer..i•m,.N.w,mn sa?d?ea>, eaures? ,tuMt 7, 2005 011041 CHMAMOURr V*-%mTtiomndFoi/'fyi mhdSevenwdOZl1GO olm "**"n'S37A11.QZ LENAPEFORGA INC. 04 LEMPEROAD WMtCKM13k PA I= .Y`0003741i02?' ' 00110411' l:0313&B787C 2 20 100 2 38 799 p p° ' os13c!0050x0' ' Jam" Cs P !r - M M ?" s Ik 03J 000040 VlrL W FM- ; W Ex7=0820 TVC=0114SA ,?f .p v - 3 F- L1 4•M ~'S o v? ? Z QQ ? N O xx a z N Z n ? C ?' ppqq?? ?? kA S4C75Z ?{ ? .:.. c w ? ? r ? . -C N rl • " ' FEIIU, PA ibS92945 ILK v t . r s ip n ,,, n ., z - m Exhibit "7" CALABRESE & SUNS, Inc. 'Precision Machine Products 406 Brandy Lane P.O. Box 1667 Mechanicsburg, Pennsylvania 17055 PHONE: (717) 766-4771 FAX: (717) 697-6506 Purchase Order Number 704 This number must appear on all correspondence, invoices, shipping papers & packages. INVOICE AND SHIP TO ADDRESS ABOVE Date 06122105 Terms N-30 Vendor Ship Via CALL C+SI Delivery 09128105 F.O.B. Point WEST CHESTER Payable Quote No. 12-02-20042785 REV PRIORITY RATING: DOAI Quote By DAVE HERSHBELL Certified for National Defense Under DMS Regulations 1. You are required to follow provisions of DMS Regulation 1 and of all other applicable regulations and orders of 8DSA in obtaining controlled materials and other products and materials needed to fill this order, provided it contains a 00 Price Quanta Description 9 EACH FORGING PER CALABRESE DRAWING 17-61556-2 $13,054.01 REVISED PURCHASE ORDER DO NOT DUPLICATE CERTS ARE REQUIRED AND MUST ACCOMPANY MATERIAL MERCURY FREE CERTIFICATE APPLIES. MATERIAL MUST BE SHIPPED COMPLETE. ACKNOWLEDGEMENT: PLEASE SIGN AND FAX BACK: _ We will comply with all provisions of Executive Order 10925 sign & date APPROVE6`70 of March 6, 1961, and of the rules, regulations, and relevant orders of the President's Committee on Equal Employment office use: j Opportunity created thereby. MATERIAL RECEIVED office use: Exhibit "8r' I? a 0 .? a ON Qdg +' N 0 Ila v? N 3 i m? 4 a a o es r pro C oA M Al9 M { V V ?_Ji lip 0 U. W ?IRmp„ J ? 01 O r= 40 0 ? i r e Arl r Q S-0 - O ZQO?x + a Br T o .. pqr v .0 4) St c a aS . 07- - S7 M v O .OUO.s i? 3?Oa O rn 0 1. t a Il! z 7 Q „a ? tr VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., acknowledge I have the authority to execute this Verification on behalf of Calabrese & Sons, Inc., and certify the facts asserted in the foregoing document are true and correct to the best of my knowledge, information and belief. To the extent the content of the document is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904. Calabrese & Sons, Inc. 2?1)1?dalabrese ? V -4 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Joseph G. Gibbons White and Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Lenape Forge, Inc. 1280 Lenape Road Box 536 West Chester, PA 19382 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER Y ` 'Tricia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: * j- 6. 0100 7 F\FILES\DATAFILE\General\Cument\11093\1 1093.11 c=2 _ `t !u0 J NOTICE TO PLEAD WHITE AND WILLIAMS LLP BY: Steven E. Ostrow/Joseph G. Gibbons Identification No(s). 50568/60378 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7074 CALABRESE & SONS, INC. TO: Plaintiff You are hereby notified to file a written response to the following Preliminary Objections within twenty (20) days of service hereof or a judgment may be entered against Y."? C?? Atto e for Defendant, I.enape Forged Products Co Attorneys for Defendant, Lenape Forged Products Corp. CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, V. NO. 07-428 LENAPE FORGE, INC., and : CIVIL ACTION - LAW LENAPE FORGED PRODUCTS CORPORATION : Defendant. PRELIMINARY OBJECTIONS OF DEFENDANT, LENAPE FORGED PRODUCTS CORP., TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Lenape Forged Products Corp. ("Products")', through its counsel, White and Williams LLP, hereby asserts the following preliminary objections to Plaintiff s Amended Complaint and in support thereof avers as follows: ' The Amended Complaint identifies defendant, Lenape Forged Products Corp., as Lenape Forged Products Corporation. To the extent material to this dispute, Lenape Forged Products Corp. reserves the right to raise any and all defenses available to it including, but not limited to, the right to assert that Plaintiff brought this action against the wrong party and/or failed to join all necessary parties. PHLDMS] 3116083v.1 BACKGROUND Plaintiff commenced this action on or about January 24, 2007 by filing a Complaint (the "Complaint") against Lenape Forge, Inc. ("LFI") and Products. 2. On or about March 8, 2007, Products filed and served upon Plaintiff its preliminary objections to the Complaint. 3. In response to Products' preliminary objections to the Complaint, on or about April 5, 2007, Plaintiff filed the Amended Complaint (the "Amended Complaint"). A true and correct copy of the Amended Complaint is attached hereto and marked as Exhibit "A." 4. The Amended Complaint is substantially identical to the Complaint with the exception of the additions of paragraphs 31, 34, 41-44, 48 and 55. See Amended Complaint. 5. The Amended Complaint is divided into four counts, two of which are asserted against LFI and two of which are asserted against Products. 6. Count II is styled in the form of a breach of contract claim against Products. Count IV is styled as a claim for common law fraud against Products. 7. The Amended Complaint seeks to recover the amount of $37,411.02 which Plaintiff allegedly paid to LFI pursuant to a quotation that was submitted to Plaintiff by LFI on or about December 2, 2004. 8. Pursuant to the quotation, Plaintiff allegedly forwarded $37,011.10 to LFI on or about June 7, 2005. 9. The allegations related to Products in the Amended Complaint that are essentially the same as those set forth in the Complaint are: (a) Products is a Delaware corporation with a place of business in Chester County. See Amended Complaint at ¶ 2; -2- PHLDMS 1 3116083v.1 (b) Products is engaged in the business of producing raw forgings. See Amended Complaint at ¶ 6; (c) Products is currently listed as an active business with the Commonwealth of Pennsylvania's Department of State. See Amended Complaint at ¶ 7; (d) Products regularly conducted and conducts business in Cumberland County through business contacts with Plaintiff and others. See Amended Complaint at ¶ 9; (e) When Plaintiff demanded that Products reimburse Plaintiff for amounts Plaintiff allegedly paid LFI, Products refused. See Amended Complaint at $ 21; (f) On October 11, 2005, Products forwarded a document to Plaintiff attached to the Amended Complaint as Exhibit "9" announcing a new company name and contact information. See Amended Complaint at ¶ 22; (g) On December 21, 2006, Products, through its agents, allegedly promised to remediate the disappearance of the funds which Plaintiff allegedly paid to LFI. See Amended Complaint at ¶ 33; (h) Products failed to submit a proposal to Plaintiff or contact Elwood City Steel in an attempt to remediate such alleged disappearance. See Amended Complaint at ¶ 36; (i) Products informed Plaintiff that it is not the same company as LFI. See Amended Complaint at 139. 10. In an attempt to remedy the defects highlighted in Products' preliminary objections to the Complaint, Plaintiff added the following allegations to the Amended Complaint: -3- PHLDMS 1 3116083v.1 (a) LFI employees did not inform Plaintiff that LFI was insolvent and unable to perform its obligations under the contract between Plaintiff and LFI. See Amended Complaint at ¶ 31. (b) Mr. Calabrese relied upon certain representations allegedly made on December 21, 2006 by alleged employees of Products. See Amended Complaint at ¶ 34, 42; (c) Calabrese has been prejudiced by its reliance on misrepresentations allegedly made by Products' representatives at a meeting that allegedly took place in December 2006 and in the mailing attached to the Amended Complaint at Exhibit "9." See Amended Complaint ¶ 44; and (d) LFI transferred certain assets to Products in an attempt to hinder delay and defraud its creditors in violation of the "Pennsylvania Uniform Transfer Act." See Amended Complaint at ¶ 48 and 55. 11. Like the original Complaint, the Amended Complaint fails to allege a cause of action against Products for either breach of contract or fraud including, but not limited to, constructive fraud under the Pennsylvania Uniform Fraudulent Transfer Act, 12 Pa. C.S.A. § 5101 et seq. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO TRANSFER VENUE PURSUANT TO PA. R. CIV. P. 1006(e) 12. Pursuant to Pa. R. Civ. P. 1028(a)(1) a defendant may assert a preliminary objection based upon improper venue. 13. With respect to the proper venue in which to assert a claim against a corporation, the Pennsylvania Rules of Civil Procedure provide: (a) Except as otherwise provided by an act of assembly or by subdivision (b) of this Rule [addressing venue of actions against insurance companies], a personal action against a corporation or similar entity may be brought in and only in: -4- PHLDMS 13116083v. I (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) a county where the cause of action arose; or (4) a county where a transaction or occurrence took place out of which the cause of action arose. Pa. R. Civ. P. 2179. 14. Products is a Delaware corporation which was formed on December 15, 2005 and which purchased certain assets of LFI from LFI's foreclosing secured creditors. See Certification of John D. Wilbur ("Wilbur Certification") at ¶¶ 2, 7, attached hereto and marked as Exhibit "B." 15. Products' sole place of business in Pennsylvania is located at 1334 Lenape Road, West Chester, Chester County, Pennsylvania. See Wilbur Certification at 13. 16. Although Products occupies the facility formerly operated by LFI, the two corporations are distinct, Products having purchased certain property of LFI at foreclosure sales conducted by the secured creditors of LFI. See Wilbur Certification at ¶¶ 5-7. 17. Products purchased the foreclosed assets on January 1, 2006, more than 8 months after Plaintiff issued the purchase order to LFI and more than 6 months after Plaintiff forwarded payment to LFI. See Wilbur Certification ¶ 7. 18. From the date of its formation until the present, Products has neither conducted any business in Cumberland County, Pennsylvania nor engaged in any business transaction with any person or entity with a place of business in Cumberland County. See Wilbur Certification at ¶ 8. 19. Because Products does not maintain any place of business in Cumberland County, does not regularly conduct business in Cumberland County and is a total stranger to the -5- PHLDMS 1 3116083v.1 transaction between Plaintiff and LFI, there is no basis for venue in Cumberland County for either of the claims asserted against Products in the Amended Complaint. WHEREFORE, Defendant, Lenape Forged Products Corp., respectfully requests this Court to dismiss Counts II and IV of Plaintiff s Amended Complaint and require Plaintiff to file any such claims in Chester County or, in the alternative, to transfer this action to Chester County. DEMURRER - FAILURE TO ALLEGE BREACH OF CONTRACT 20. Products incorporates by reference paragraphs 1 through 19 of these Preliminary Objections as fully as though each were set forth herein at length. 21. Count II of the Amended Complaint purports to assert a claim against Products for breach of contract that Plaintiff admittedly entered into with LFI only. 22. Count II simply ignores the fact that, all of the transactions and occurrences out of which Plaintiff s cause of action arose, if it has one, occurred prior to the time when Products came into existence. 23. The Amended Complaint asserts that Plaintiff entered into a contract with LFI (not Products) to produce a forging billet. See Amended Complaint at ¶¶ 11-20. 24. Pursuant to its contract with LFI, Plaintiff alleges that it forwarded payment to LFI on or about June 7, 2005. See Amended Complaint at ¶ 18. 25. Plaintiff further avers that despite receiving payment, LFI failed to deliver the forged billet on September 28, 2005 as promised. See Amended Complaint at ¶ 40. 26. Products did not come into existence and purchase certain assets of LFI for approximately three (3) months after LFI allegedly failed to deliver the billet. See Wilbur Certification at ¶ 2. 27. Despite having a contract only with LFI, Plaintiff asked Products to refund its payment and Products refused. See Amended Complaint at ¶ 21. -6- PHLDMS 1 3116083v.1 28. Because Products is a stranger to a contract between two third parties, Products has no liability to either party under the contract. 29. Accordingly, Plaintiff's Amended Complaint fails to state a cause of action against Products for breach of contract. WHEREFORE, Defendant, Lenape Forged Products Corp., respectfully requests this Court to dismiss Count II of Plaintiff's Amended Complaint, as to Products, with prejudice. DEMURRER - FAILURE TO STATE A CAUSE OF ACTION FOR FRAUD 30. Products incorporates by reference paragraphs 1 through 29 of these Preliminary Objections as fully as though each were set forth herein at length. 31. To properly plead a cause of action for fraud, a plaintiff is required to allege (i) a misrepresentation, (ii) the fraudulent utterance thereof, (iii) the intention by the maker that the recipient will thereby be induced to act, (iv) justifiable reliance by the recipient upon the misrepresentation and (v) damage to the recipient as the proximate result. Scaife Company v. Rockwell Standard Corp., 446 Pa. 280, 285 A.2d 451 (1971). 32. The only representations which Plaintiff attributes to Products in the Amended Complaint are that: (a) Products forwarded a notice of "New Company Name" to Plaintiff on or about October 11, 2005. See Amended Complaint at T 22; (b) On December 21, 2006, employees of Products promised that they would attempt to remediate the disappearance of the payment made by LFI through negotiations with Elwood Quality Steel. See Amended Complaint at 133; (c) Employees of Products subsequently promised to provide Plaintiff with a proposal for recovery of Plaintiff's payment but failed to do so. See Amended Complaint at TT 36, 37, 38; and (d) Products informed Plaintiff that it is not the same company as LFI and not responsible for LFI's obligations. See Amended Complaint at IT 39, 57. -7- PHLDMSi 3116083v.1 33. Fatal to Plaintiff's claim for fraud is the fact that Plaintiff concedes that all of the representations by Products, if any, occurred after Plaintiff had entered into the alleged contract with, and paid funds to, LFI and after Plaintiff allegedly sustained damages as a result of LFI's failure to deliver the forging billet on September 28, 2005. As a result, with respect to Products, the critical elements of justifiable reliance and proximate cause of damage would be impossible to establish even if Plaintiff could prove that Products had made false representations in October 2005 and December 2006, as alleged in the Amended Complaint, and even if Products intended for Plaintiff to rely upon same, which assertions Products expressly denies,2 34. Moreover, pursuant to Pennsylvania law, the failure of a party to perform an act or pursue a course of conduct consistent with that party's prior representation does not render those prior representations fraudulent. Wood v. R.R. Donnelly Sons Company, 888 F.2d 313 (3d. Cir. 1989). Because the alleged representations attributed to Products constitute expressions of Products' purported intent to pursue a course of conduct at some time in the future, none of the representations attributed to Products could possibly constitute a misrepresentation of an existing fact. 35. Based upon the foregoing, Plaintiff's Amended Complaint fails to allege a cause of action against Products for common law fraud. WHEREFORE, Defendant, Lenape Forged Products Corp., respectfully requests that Count IV of Plaintiff's Amended Complaint be dismissed with prejudice. ` In response to this same objection raised by Products in its preliminary objections to the original Complaint, Plaintiff included in the Amended Complaint paragraph 34 (Mr. Calabrese relied upon certain representations made by alleged employees of Products at a December 26, 2006 meeting) and paragraph 44 (Calabrese has been prejudiced by representations made by alleged employees of Products in October 2005 and December 2006). However, Plaintiff fails to allege that it was damaged in any way as a result of such reliance. It is clear from the face of the Amended Complaint that any damage incurred by Plaintiff was incurred prior to the October 2005 letter that Plaintiff attributes to Products. -8- PHLDMS 1 3116083v.1 DEMURRER - FAILURE TO ALLEGE VIOLATION OF THE PENNSYLVANIA UNIFORM FRAUDULENT TRANSFER ACT 36. Products incorporates by reference paragraphs 1 through 35 of these Preliminary Objections as fully as though each were set forth herein at length. 37. Although it fails to cite the relevant portions of the Pennsylvania statute or identify the correct name of the act, the Amended Complaint appears to assert that the purchase by Products of assets formerly owned by LFI, was fraudulent under the Pennsylvania Uniform Fraudulent Transfer Act, 12 Pa. C.S.A. § 5101 et seq. (the "PAUFTA") because it was conducted "in an attempt to hinder, delay, or defraud [LFI's] creditors, including Calabrese & Sons, Inc." See Amended Complaint at ¶ 48. 38. Initially, the PAUFTA defines a transfer as "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset. The terms include payment of money, release, lease and creation of a lien or other encumbrance." See 12 Pa. C.S.A. § 5101(b). Under the PAUFTA, the definition of asset expressly excludes "property to the extent it is encumbered by a valid lien." Id. 39. Accordingly, if property that is transferred is encumbered by a valid security interest that exceeds the value of the property, the transfer of that property does not constitute a "transfer" under the PAUFTA. In re Blatstein, 226 B.R. 140 (E.D. Pa. 1998). 40. In addition, a non-collusive, procedurally proper Sheriff Sale may not be invalidated as a fraudulent conveyance. In re Sheilds, 148 B.R. 783 (Bankr. E.D. Pa. 1993); see also U.S. v. Gleneagles Inv. Co. Inc., 571 F.Supp. 935 (M.D. Pa. 1983), aff'd. 803 F.2d 1288, cert. den. 107 S. Ct. 3229, 483 U.S. 1005 (actions of mortgagee and prospective purchasers of mortgages in formulating strategy and acting to obtain subject land at tax sale free and clear of -9- PHLDMS 1 3116083v.1 claims of other creditors, did not constitute fraudulent conveyance where evidence did not establish any conspiracy involving mortgagor). 41. On April 3, 2007, prior to the date on which the Amended Complaint was filed, Products forwarded to Plaintiff via telecopier, copies of a Sheriff s Deed and a Private Sale Agreement between Products and one of LFI's secured creditors which demonstrate that Products purchased the assets of LFI from two separate foreclosing creditors pursuant to non- collusive arms length transactions of which LFI was not a party.3 A true and correct copy of Products' letter dated April 3, 2007 with confirmation of transmission but without exhibits is attached hereto as Exhibit "C." 42. The conclusory allegations of intent contained in paragraphs 48 and 55 of the Amended Complaint, are contrary to the documentation provided to Plaintiff by Products which established the arms length nature of the transactions between Products and LFI's secured creditors and the lack of any factual basis to support the allegations contained in the Amended Complaint. 43. In resolving preliminary objections in the nature of a demurrer, a court must ordinarily confine its review to the facts as pleaded in the complaint. However, where, as here, a plaintiff is in possession of facts which conclusively refute the allegations in the Amended Complaint, the Plaintiff cannot completely ignore those facts. See Pa. R. Civ. P. 1023.1. 3 By letter dated April 24, 2007, counsel for Products served notice upon counsel for Calabrese that Products believes that the Amended Complaint violates Pennsylvania Rules of Civil Procedure 1023.1(c) and of its intention to seek sanctions under Rule 1023.2 unless the Amended Complaint is withdrawn within twenty-eight (28) days as required by Rule 1023.2(b). Because these Preliminary Objections must be filed prior to the deadline for the withdrawal of the Amended Complaint under Rule 1023.2, the underlying factual basis of the request are being included herein. -10- PHLDMSI 3116083v.1 44. Because Plaintiff cannot ignore facts within its possession in formulating its pleading just to get past the preliminary objection stage, this Court can consider such facts in resolving these preliminary objections to the Amended Complaint. 45. Based upon the foregoing, the Amended Complaint does not and, in fact, Plaintiff cannot, allege facts which, if proven, would establish a violation of the PAUFTA, and Count IV of the Amended Complaint, to the extent it relies upon such violation, must be dismissed with prejudice. WHEREFORE, Defendant, Lenape Forged Products Corp., respectfully requests that Count IV of Plaintiff s Amended Complaint be dismissed with prejudice. THE AMENDED COMPLAINT FAILS TO PLEAD FRAUD WITH PARTICULARITY 46. Products incorporates by reference paragraphs 1 through 45 of these Preliminary Objections as fully as though each were set forth herein at length. 47. Pennsylvania Rule of Civil Procedure 1019(b) provides: Averments of fraud or mistake, shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally. As stated above, in order to plead a cause of action for fraud, a party must allege a misrepresentation, the fraudulent utterance thereof, an intention by the maker that the recipient will thereby be induced to act, justifiable reliance by the recipient on the misrepresentation and damage to the recipient as the proximate result. 48. As set forth more fully above, the Amended Complaint fails to allege, with specificity, any statement of fact by Products which would establish a cause of action for fraud. 49. Plaintiffs conclusory statements contained in Count IV of the Amended Complaint fail to satisfy the specificity requirements set forth in Pa. R. Civ. P. 1019(b). See Ski Roundtop, Inc. v. Hall, 265 Pa. Super. 266, 401 A.2d 1203 (1979). -11- PHLDMS ] 3116083v.1 50. Accordingly, Count IV of Plaintiff Amended Complaint must be stricken. WHEREFORE, Defendant, Lenape Forged Products Corp., respectfully requests that Count IV of Plaintiffs Amended Complaint be stricken pursuant to Pa. R. Civ. P. 1028(a)(2) for failure to comply with Pa. R. Civ. P. 1019(b). Respectfully submitted, WHITE AND WILLIAMS LLP By: (31r?tq Z? St e . Ostrow, Esquire Jo h G. Gibbons, Esquire 1800 One Liberty Place Philadelphia, PA 19103 Telephone (215) 864-7000 Telecopier (215) 864-7123 -12- PHLDMS 1 3116083v.1 CERTIFICATE OF SERVICE I, Joseph G. Gibbons, Esquire, hereby certify that I caused a true and correct copy of the foregoing Preliminary Objections to be served upon counsel for Plaintiff on April 24, 2007 via regular first-class mail, postage prepaid, at the following address: David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 Dated: Z//O? y 6j Jose .Gibbons PHLDMS 1 3116083v.1 ,?,x ki?f ? t+ David A. Fitzsimons, Esquire fl I.D. No. 41722 - " Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON LAW OFFICES = = } 10 East High Street Carlisle, PA 17013 c,, °=> (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-428 CIVIL ACTION - LAW LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORP., Defendants. : JURY TRIAL DEMANDED AMENDED COMPLAINT TO: LENAPE FORGE, INC. LENAPE FORGED PRODUCTS CORP., Defendant, and its attorney, JOSEPH G. GIBBONS, ESQ. YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED AMENDED COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW comes the Plaintiff, Calabrese & Sons, Inc., by its attorneys, MARTSON LAW (0 O OFFICES, and avers the following in support of its claim: 1. Plaintiff, Calabrese & Sons, Inc. ("Calabrese"), is a Pennsylvania corporation with a principal place of business located at 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, Lenape Forge, Inc., is a Pennsylvania corporation with a place of business located at 1334 Lenape Road, West Chester, Chester County, Pennsylvania 19382. 3. Defendant, Lenape Forged Products Corp. ("Lenape Forged Products"), is a Delaware corporation with a place of business located at 1334 Lenape Road, West Chester, Chester County, Pennsylvania 19832. 4. Calabrese & Sons, Inc., is a machine shop in the business of producing machined parts for commercial and military customers. 5. In the normal course of business, Calabrese contracts with forging companies for the production of raw forgings which Calabrese then machines into final finished parts for its customers. 6. Both Lenape Forge, Inc. and Lenape Forged Products are, upon information and belief, companies engaged in the business of inter alia producing raw forgings on order for machine shops such as Calabrese. 7. Upon information and belief, both Lenape Forge, Inc. and Lenape Forged Products are listed as currently active business entities with the Commonwealth of Pennsylvania's Department of State Corporate Bureau. 8. Lenape Forge, Inc., during all times relevant to the transactions described in this Complaint, regularly conducted and conducts business in Cumberland County through its contacts and contracts with Calabrese and other customers and potential customers. 9. Lenape Forged Products, during all times relevant to the transactions described in this Complaint, regularly conducted and conducts business in Cumberland County through its business contacts with Calabrese and other customers and potential customers. 10. This suit is based upon payment by Calabrese & Sons, Inc., in the amount of $37,411.02, for Forging Billet (raw material) for a Calabrese & Sons, Inc., contract with Naval Inventory Control Point Philadelphia (NAVCP). 11. On or about November 18, 2004, Calabrese & Sons, Inc., sought quotes for nine (9) forgings per a drawing designated as CS 17-61556-2. Exhibit 1 attached and incorporated herein is a copy of the Request for Quotation, delivered to and received by Lenape Forge, Inc. 12. On or about December 2, 2004, Lenape Forge, Inc., submitted a successful Quotation #12-02-2004 2785, followed by a raw materials invoice 41209-1 dated December 9, 2004, and attached and incorporated herein as Exhibit 2. 13. On or about December 13, 2004, an authorized agent of Lenape Forge, Inc. transmitted to Calabrese's buyer, Joey Calabrese, an Invoice number 41209-1 for pre-payment of raw material in the amount of $37,011.10. A copy of the transmittal sheet and invoice is attached and incorporated herein as Exhibit 3. 14. Calabrese in accordance with accepted defense contracting procedures made application through DFAS Columbus Center, a Federal Government Military procurement entity for Advanced Payment for Contract attached and incorporated herein as Exhibit 4. 15. Calabrese generated Purchase Order 704 dated March 14, 2005, in the amount of $37,011.10, attached and incorporated herein as Exhibit 5, transmitted to and received by Lenape Forge, Inc. 16. Lenape Forge, Inc., in turn submitted an invoice in the amount of $37,411.02, for pre- payment of billet, a Revised Invoice 41209-1, dated April 8, 2005, the transmittal message from Harry Myers of Lenape Forge Inc and invoice are attached and incorporated herein as Exhibit 6. 17. The Revised Invoice attached as Exhibit 6 includes the note that "Funds will be sent directly to Ellwood Quality Steel upon receipt of funds from Calabrese & Sons, Inc." 18. Payment was made by Calabrese via check number 011041 dated June 7, 2005, in the amount of $37,411.02 and deposited in Lenape Forge Account # 713-07024. A copy of the check, front and reverse with endorsements, is attached and incorporated herein as Exhibit 7. 19. Despite the representations on its invoice, and verbal assurances made on more than one occasion by its officers and agents Lenape Forge, Inc., did not transmit the raw material payment to Ellwood Quality Steel. 20. On June 22, 2005, David Hershbell transmitted a "Revised Purchase Order" attached and incorporated herein as Exhibit 8, indicating a scheduled delivery of 09/28/05 of the forged parts. 21. Both Lenape Forge, Inc. and Lenape Forged Products, through their officers and representatives, refused to return the funds to Calabrese & Sons, Inc. 22. On or about October 11, 2005, Lenape Forged Products transmitted the document attached as Exhibit 9 and incorporated herein by reference, to Calabrese and, upon information and belief, other customers of Lenape Forge, Inc., advising of a "new company name" and contact information. 23. The note attached at Exhibit 9 represents that ..."[t]here is a new company name; that all extension numbers within the new company have remained the same as with Lenape Forge, Inc.; and that e-mail addresses and the Lenape Forge, Inc., domain name (Lenape.com) remained the same." 24. Upon information and belief, the domain name and website was established by Lenape Forge, Inc., in the calendar year 2004 or 2005 (please see Exhibit 2). 25. Calabrese & Sons, Inc.'s contact through Lenape Forged Products is the same individual who transmitted the Revised Invoice at Exhibit 8, on behalf of Lenape Forge, Inc., David Hershbell. 26. Hershbell had advised Joe Calabrese, President of Calabrese that Lenape Forge, Inc.'s personnel had "underpriced" their initial quote to Calabrese, and Joe Calabrese, therefore, agreed to the revised price for the final product represented in Exhibit 8. 27. Moreover, Hershbell advised Joe Calabrese that Lenape Forge, Inc., did indeed receive the payment transmitted by Calabrese, but that those funds were no longer available, through no fault of Calabrese & Sons, Inc. 28. At no time in calender year 2005 did Hershbell or any employee of Lenape Forge, Inc., advise Calabrese that Lenape Forge Inc., did not intend to fulfill its obligation to Calabrese. 29. In fact, at the time (June 2005) he was negotiating with Joe Calabrese to revise and increase the amount of the final contract price for the parts, Hershbell was aware that Lenape Forge, Inc., was suffering financial difficulties, and that the payment for Billett had been diverted to recipient[s] other than the intended and promised Ellwood Quality Steel. 30. Moreover, Hershbell was aware, and has acknowledged to Joe Calabrese in person that he was aware that the funds submitted by Calabrese were an advance on contract payments received from the government. 31. At no time during the relevant calendar year of 2005 did Hershbell advise Calabrese that his employer was sold, insolvent or in any relevant way unable or unwilling to fulfill its obligations to Calabrese. 32. Lenape Forge, Inc. and Lenape Forged Products are both experienced Government contractor companies, and through their common employees and directors, including but not limited to Hershbell, are aware, and have acknowledged personally to Joe Calabrese that the disappearance of advanced government funds is very problematic to Calabrese, with the actual and potential effect of damaging Calabrese's standing as a Federal contractor, with actual and potential loss of business, profits, and contracting opportunities a direct consequence of the failure of Lenape Forge, Inc. and Lenape Forged Products to make good on their contract, and promises to work in good faith to remedy the harm to Calabrese. 33. Lenape Forged Products, through David Hershbell and Erich Stolz, promised and represented to Joe Calabrese, the President of Calabrese & Sons, Inc., in a December 21, 2006, meeting at the common West Chester address of both Lenape Forge, Inc. and Lenape Forged Products that they would attempt to remediate the disappearance of the Calabrese billet payment through a renegotiated contract with Ellwood Quality Steel and with Calabrese & Sons, Inc., for the production of the required forgings. 34. Mr. Calabrese justifiably relied on the representations and promises from Lenape Forged Products that it would attempt to remediate the disappearance of the Calabrese billet payment. 35. Lenape Forged Products and Lenape Forge, Inc., were expressly reminded of the facts they already knew at the December 21, 2006 meeting that the funds that had been forwarded to Lenape Forge, Inc., were federal government contract pre-payment funds and that the disappearance of those funds, while in Lenape Forge, Inc.'s custody, was causing serious problems to Calabrese's relationship with one of its primary military contract buyers. 36. Despite their knowledge of the seriousness of the situation, Lenape Forge, Inc. and Lenape Forged Products' representatives nevertheless failed to submit any proposal to Calabrese, and upon information and belief, failed, contrary to their representations, to contact Ellwood City Steel to determine options for obtaining the billet that Calabrese had paid for. 37. Hershbell and Stolz expressly acknowledged the damage that was being caused to Calabrese, acknowledging that a lawsuit was the least mutually acceptable manner in which to resolve the dispute, and promised to take action and provide Calabrese with a proposal. 38. Instead, on behalf of Lenape Forge, Inc. and Lenape Forged Products they did nothing, knowing full well and intending that further harm would befall Calabrese in its relationship with primary military procurement customers. 39. Lenape Forged Products has taken the position that it is not the same company as Lenape Forge, Inc. 40. Once it became apparent that Hershbell and Stolz had no intention to fulfill the obligations and promises they made on behalf of Lenape Forge, Inc. and Lenape Forged Products, Calabrese was forced to obtain materials through alternative sources and continues to suffer the consequences of the improper retention of its down payment funds by Lenape Forge, Inc., which further benefitted Lenape Forged Products. 41. At a meeting on December 21, 2006, Lenape Forged Products, though David Hershbell and Erich Stolz, represented to Joe Calabrsese, the President of Calabrese & Sons, Inc., that it would attempt to remediate the disappearance of the Calabrese billet payment through a renegotiated contract with Ellwood Quality Steel and Calabrese & Sons, Inc. for the production of the required forgings. 42. Calabrese & Sons, Inc. justifiably relied on the representations and promises from Lenape Forged Products that it would attempt to remediate the disappearance of the Calabrese billet payment. 43. Lenape Forged Products' representatives nevertheless failed to submit any proposal to Calabrese, and upon information and belief, failed, contrary to their representations, to contact Ellwood City Steel to determine options for obtaining the billet that Calabrese had paid for. 44. Calabrese & Sons, Inc. has been prejudiced by relying on the misrepresentations of Lenape Forged Products' representatives and upon the representations of the mailings attached to this pleading. Consequently, Lenape Forged Products is estopped from denying its representations and from repudiating its conduct. COUNT I - BREACH OF CONTRACT Calabrese & Sons, Inc. v. Lenape Forge, Inc. 45. The averments of the preceding paragraphs 1 through 44 of this Complaint are incorporated herein by reference as fully set forth. 46. Lenape Forge, Inc.'s actions constitute of breach of contract with Calabrese & Sons, Inc., for reasons stated in this Complaint. WHEREFORE, Plaintiff Calabrese & Sons, Inc., request that this Honorable Court enter judgment in its favor for the down payment funds in the amount of $37,411.02, together with statutory interest, costs and such other relief as the Court deems just and reasonable under the circumstances. COUNT II - BREACH OF CONTRACT Calabrese & Sons, Inc. v. Lenape Forged Products Corporation 47. The averments of the preceding paragraphs 1 through 46 of this Complaint are incorporated herein by reference as fully set forth. 48. Lenape Forge, Inc. transferred its assets to Lenape Forged Products in an attempt to hinder, delay or defraud its creditors, including Calabrese & Sons, Inc. Consequently, the conveyance between Lenape Forge, Inc. and Lenape Forged Products violated the Pennsylvania Uniform Transfer Act. 49. Lenape Forged Products' actions constitute a breach of contract with Calabrese & Sons, Inc., for reasons stated in this Complaint. WHEREFORE, Plaintiff Calabrese & Sons, Inc., request that this Honorable Court enter judgment in its favor for the down payment funds in the amount of $37,411.02, together with statutory interest, costs and such other relief as the Court deems just and reasonable under the circumstances. COUNT III - FRAUD Calabrese & Sons, Inc. v. Lenape Forge, Inc. 50. The averments of the preceding paragraphs 1 through 49 of this Complaint are incorporated herein by reference as fully set forth. 51. Lenape Forge, Inc., through its officers and/or agents improperly and knowingly converted the raw material deposit funds transmitted by Calabrese & Sons, Inc., and have consistently refused to either reimburse Calabrese & Sons, Inc., for the missing funds or to produce raw materials required under the contract. 52. Lenape Forge, Inc., undertook these actions knowing and intending that those actions would cause damages, embarrassment and loss of business and potential serious consequences in Calabrese's contracting relationship with the federal government. 53. Said actions and intent to cause harm constitute a fraud upon Calabrese & Sons, Inc., and punitive damages, including but not limited to, attorney's fees are appropriate. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfully prays that this Honorable Court will enter an Order in its favor granting payment of the raw material invoices paid in the amount of $37,411.02, plus statutory interest costs, attorney's fees, punitive damages and such other relief as the Court deems just and reasonable under the circumstances. COUNT IV - FRAUD Calabrese & Sons. Inc. v. Lenape Forged Products Corporation 54. The averments of the preceding paragraphs I through 53 of this Complaint are incorporated herein by reference as fully set forth. 55. Lenape Forge, Inc. transferred its assets to Lenape Forged Products in an attempt to hinder, delay or defraud its creditors, including Calabrese & Sons, Inc. Consequently, the conveyance between Lenape Forge, Inc. and Lenape Forged Products violated the Pennsylvania Uniform Transfer Act. 56. Upon information and belief, Lenape Forged Products takes the position and intended through its incorporation, to succeed to the assets of Lenape Forge, Inc., and to avoid legitimate obligations of Lenape Forge, Inc. 57. Representatives of Lenape Forged Products formerly or currently employed by Lenape Forge, Inc., have advised Calabrese & Sons, Inc., that Lenape Forged Products does not acknowledge any obligation to Calabrese & Sons, Inc. for the raw material funds down payment. 58. Upon information and belief, Lenape Forged Products' position is an attempt to improperly separate the assets from the liabilities of Lenape Forge, Inc., and deny Calabrese & Sons, Inc., access to its funds which Lenape Forge, Inc., and Lenape Forged Products acknowledge were received from Calabrese & Sons, Inc., which actions are in violation of the intent of the successor liability doctrine. 59. Lenape Forge, Inc., and Lenape Forged Products undertook these actions knowing and intending that those actions would cause damage, embarrassment and loss of business and potential serious consequences in Calabrese's contracting relationship with the federal government. 60. Said actions and intent to cause harm constitute a fraud upon Calabrese & Sons, Inc., and punitive damages, including but not limited to, attorney's fees are appropriate. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfully prays that this Honorable Court will enter an Order in its favor granting payment of the raw material invoices paid in the amount of $37,411.02, plus statutory interest costs, attorney's fees, punitive damages and such other relief as the Court deems just and reasonable under the circumstances. Respectfully submitted, MARTSON LAW OFFICES By-,O J David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: 4 + S' 0 7 Attorneys for Plaintiff VERIFICATIOLq I, Joseph Calabrese, President of Calabrese & Sons, Inc., hereby verify that I am authorized to sign this Verification and have reviewed the foregoing document and to the extent that the foregoing document contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Calabrese & Sons, Inc. Date: q J?57107 j eph Calabrese P:I IXX$?OATAFIIXCmereACuffm%t1093%1100.I Lwm2 406 BRANDY LANE MECHANICSBURG, PA 17055 PHONE 717-766-4771 FAX 717-697-6506 40 To: QUOTING DEPARTMENT From: JOEY CALABRESE Fax: Pages: 1 OF 2 Phone: Date: 11110004 Re: 704 CC: ? Urgent 0 For Review O Please Comment ? Please Reply ? Please Recycle QUOTE PRICE AND DELIVERY FOR THE FOLLOWING: 9 EA- FORGINGS PER DRAWING CS17-61556-2 Exhibit "i" V cu !2qmn O S O? 4 : f i .- r i J tll N rn z Q rn W ? tl m rn o r m? -us-44-4 etg- *to 8 RE H N 'v N = - r M D H rn M r n Q(n M ? o rn a N Z: ..y FV ut -00 1 :D Z o z . -TI o Ln o 6 J[ r ri N 1.+ IC 0 i q a N W N N -tip ?r r+ K L1 - 1 71% • i Ts n ft p 11 10 m H rl < H s" a Z N ? m 'J i? • N 00" 0 a. VII a nrd ? a c-z NC -?+ R 10 n pt r rr? C r+ va ti ?. o n o -•-•a ?Lr• (C n ? V ta?1 A d a~ N ?N n ? N o? ?o r? n a 7 MMM . 'I O Fl." To Lenape Forge Inc. 1334 Lenape Road West Chester, Pa 19392 U.S.A. Pit: 610.793-1500 Fax: 610.793.0391 Invoice Number 41209-1 Date: 09-Dec2004 Ship To Calabrese & Sons Calabrese & Sons 406 Brandy Lane Mechanicsburg, PA 17055 Tama Due cob Shlp vla sataparsm Due Upat Receipt Upon Receipt Guanift DewpNon Unit PH" Amaurt goo 4130 81let per MIL-Sd375HM) 7206 Ibe per piees $0.461111) $37.011.1 Calabrese PO 704 Pnapress billing approv®d try J. Caiabresa Sales Tax $0.00 Invoice Total: $31,011.1 Amount Paid: $0.00 Amount Due: $37,0111.110 Page 1 of 1 Exhibit "2" LL LL FAX LenW Forge 1334 Lenape Rd West Chester, PA 19382 610-793-1500 ext 222 610-793-3240 fax woodring a lenaneFor e.com T0: 96(e (X G RE: hen, aQ DATE: 12 3 -tu _eli 60, l1q, -7 vflv 4L -Ialv?o 4L Vol w ? Lax,,-tt- 3ci cg Exhibit "3" 1.?1C1] r A L To Lienape Fargo Inc. 1334 Lampe Road West Cheater, Pa 19332 U.S.A. ph: 610.793.1500 Fax: 610.793-0391 Invoice Numbar. 41209.1 Oate: 03-09o-3004 Ship To Calabrese & Sons Calabrese & Soria 406 Brandy Lane Mechanicsburg, PA 17055 Tarns Due Cab ship via Stlesperson Due Upon Receipt Upon Receipt Quanft DeerApdon Unit Fries Amount goo 4130 9Ulat par MIL-38738(81 7206 ibe per plots $0.46111) $37,011.1 Calabma PO 704 Progress billing approved by J. Calabrese Sal" Tax 50.00 Invoice Totak $37,011.1 Amount Paid" 50.00 Amount Due: $37,011.1 Page t of 1 P.O. Box 1667"? Mechanicsburg, Pennsylvania 17055 (717) 766-4771 (7117) 697-6506 FAX Sold to: DFAS COLUMBUS CENTER NORTH ENTITLEMENT OPERATIONS PO BOX 182266 COLUMBUS, OH 43218-2266 Invoice date Customer Num. Purchase Order # Payment terms Sales tax due Job Number 02/02/05 N0038304CP019 No 704 Quantity Nomenclature Description Unit Price Price 1 ADVANCED PAYMENT FOR CONTRACT 37,011.00 N00383-04-C-P019 NSN 1720-01-309-8239 BILLET MATERIAL Delivery Ticket : Completed or partial Unpaid Invokes beyond 30 days will be assessed a 11/2% Monthly Service Charge. Sub-Total : 37,011.00 Sales tax 6%: 0.00 The Invoice Number should appear on all payments, memos 8 Total : 37,011.00 correspondence to insure proper crediting to your account. Shipping invoiceT TOTAL AMOUNT DUE: 37,011.00 L 0 Exhibit "4" vM>Lt?vr?l??ic Ot QvivJ, II1G. Precision Machine Products 406 Brandy Lane P.O. Box 1667 Mechanicsburg, Pennsylvania 17055 PHONE: (717) 766-4771 FAX: (717) 697-6506 Purchase Urder Number (- 704 11 This number must appear an all correspondence. invoices. INVOICE AND SHIP TO ADDRESS ABOVE Date Terms Vendor Ship Via Delivery F.O.B. Point Payable Quote No. PRIORITY RATING: DOA1 Quote By Certified for National Defense Under DMS Regulations 1. You we required to follow provisions of DMS Regulatior regulations and orders of 8DSA in obtaining controlled materials and other products and materials needed to fill this o mrUnr r»( nrinrily rRtinn_ shipping papers & packages. 03/14/05 N-30 WEST CHESTER 12/09/2004 W.B. WOODRING 1 and of all other applicable der, provided it contains a DO Quantity Description Price 1 EACH FORGING BILLET PER AMS-8-6758, 4130 $37,011.10 LOT CERTS ARE REQUIRED AND MUST ACCOMPANY MATERIAL MERCURY FREE CERTIFICATE APPLIES. MATERIAL MUST BE SHIPPED COMPLETE. ACKNOWLEDGEMENT: PLEASE SIGN AND FAX BACK: We will comply with all provisions of Executive Order 10925 sign & date of March 6, 1961, and of the rules, regulations, and relevant APPROVED BY orders of the President's Committee on Equal Employment office use: ; Opportunity created thereby. MATERIAL RECEIVED office use: Exhibit "5" 1 004 Lenape moaa west Unester, Pa. Phone 610 793 (15500 X202, Fax 610 793 3240 FAX e Fnx: t -Gq2 GSA TO C_.A?BRr-SE ? SOtJs ?^. ATTENTION l6Z FROM: H.J. MYERS, EXT. 244 t, - REF: ?40, 70-( MESSAGE: JOE PAGE 1 OF 11)'f 4' Lr,x? r G DATE r? jGy Z1 ?c C.L ?? OJR ?? Ce`+vuso.,ta.1-?a?a7 A-daWen Ai" 0. Uv?-pjla-pwtsti ?? iJITH A- IlMr7 Sew Wka? c?.? r?nrE OBzZ *r t,Ja.Skould r?nrE rvt+?ua?- A-?0``rD,.'E (?,? ?-P?+?? yam. c??c /?4/?Yagg Exhibit "6" To brow 8 Son, inc. &WWI Lane sax 1x67 hw icebma PA 17066 Lm" Fap Inc. 1334 Lou" Road West Chester, Ps 19382 U.SA Ph: M-7WISM Far 610.793-0301 Invoice Nurrietr: 41206-1 Dift 22-Me" 2006 Ship To Galabreee 8 Um Inc. 406 Bra" Lena P.O. sox 1667 Mechoftebxg PA 17036 USA Tanm oft Deb amp Vw satupwsml Dus on Receipt 06-AWN 2005 -do-an" pMMipp UNt Pt1M AMMWA $Q4062Nt~ 137.411. Rear Metsriat Mwoicft PO 701 92,100 the 3 Pa - 31 ' od 4130 CyNndrlW tnpots chemistry onyt to PA 467-Will) CAP" to YW. (s) Pa 0 SM lba dab#2057 (1) pc Q 7304 Jabs 20674)A Q-101, RwA Notes 1,2.3,12 Apply AM MM OM $V.411.02 Note: This is a revision to Invoice 412091 dated WDwAM Funds will be sent di 9* to Bwnod Quality Steel upon receipt d funds from Caftrese 6 Son, Inc. Paps 1 of 1 Current Date: December 01, 2006 Account Number: 2201002387 Capture Date: June 13, 2005 Item Number: 30007152667 Posted Date: June 13, 2005 Posted Item Number. 164000032 Amount: $37,411.02 Record Type: Debit CALABRESE & SONS INC 406 BRANDY LANE MECHANICSBURG PA 17055 CALJlMME&SONVAM o 011041 F0 BOX 1x 7 4068AWYLANE L' ?' ? MEONAN OMM, PA.11053 6 19MI3 rau+an 4=7,mm 011041 Memo: CRECKMM PAY 'b*avm ThDunnd F@trHi11 kd Be B wd O2MM Dob3 e411.? To'M LENAPEFORGAINC ORDER 1334LEWEROAG OF WESTdiEMA PA 102 kt. e'OiLOtiiE' x.031318?8??: 22Qi00'c38?+? .x`00t3l"14 020X 0 a x ? V)-1.y-4 f?Cy ?j •^a ,.? p O cs ? ? ?5 0 1153W040^ O a 06138005 / *s f-3oW31 #x. rt; .t: 03J000040 Zlff-08P0 7$C-01541: t? 9 f.0 '4 r• 3 i? ?M o, c, ? ? ? %G !03 40001 ? ?.• ? ?' .a . P:II1R, PA ibl$? 137( ? ` ? ? z m Exhibit "7" CALABRESE & SUNS, Inc. ' Precision Machine Products 406 Brandy Lane P.O. Box 1667 Mechanicsburg, Pennsylvania 17055 PHONE: (717) 7664771 FAX: (717) 697-6506 Purchase Order Number 704 This number must appear on all correspondence, invoices, shipping papers & packages. INVOICE AND SHIP TO ADDRESS ABOVE Date 06/22/05 Terms N-30 Vendor Ship Via CALL C+SI Delivery 09/28/05 F.O.B. Point WEST CHESTER Payable Quote No. 12-02-20042785 REV PRIORITY RATING: DOA1 Quote By u DAVE HERSHBELL q 11 Certified for National Defense Under DMS Regulations 1. You we required to follow provisions of DMS Regulation 1 and of all other applicable regulations and orders of BDSAin obtaining controlled materials and other products and materials needed to fill this order, provided it contains a DO and/or DX oriori1v ratina_ Quanta Description r Price 9 EACH FORGING PER CALABRESE DRAWING 17-61556-2 $13,054.01 REVISED PURCHASE ORDER DO NOT DUPLICATE CERTS ARE REQUIRED AND MUST ACCOMPANY MATERIAL MERCURY FREE CERTIFICATE APPLIES. MATERIAL MUST BE SHIPPED COMPLETE. ACKNOWLEDGEMENT: PLEASE SIGN AND FAX BACK: We will comply with all provisions of Executive Order 10925 sign & date ?' of March 6, 1961, and of the rules, regulations, and relevant APPROVED -- ' orders of the President's Committee on Equal Employment office use: Opportunity created thereby. MATERIAL RECEIVED office use: Exhibit "8" 0 a ?y ?'n wyiy ? v'C f ? O [07 Z 0 ?,? e? iL Lp ? p, t? ffi ? ?f r 'Q??' 4 z A a ? r C cla O9 N i7 v ? d • Z w 'Zol Ii i r 0-o U. %4( lu 'Oat a?!3lu Q 9-0 T,?iC tT ? cr c a ggo ?bt 0 c o o°a? N c 3 3 r ?- 7s z ?b a ?'a o U. it cs? r 0 e co Ia O N Lenape Forged Products Corp. 1334 Lenape Road West Chester, PA 19382 October 11, 2005 Calabrese.& Son, Inc, 406 Brandy Lane PO Box 1667 Mechanicsburg,PA 17055 We are pleased to announce our new company name and contact information: Our new main phone #: (610) 793-5090 Sales & Engr Fax #: (610) 793-3070 Acctg/Main office Fax#: (610) 793-3059 All extension numbers have remained the same. E-mail addresses and the Lenape Forge domain name (Lenape.com) have also remained the same. Exhibit "9" VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., acknowledge I have the authority to execute this Verification on behalf of Calabrese & Sons, Inc., and certify the facts asserted in the foregoing document are true and correct to the best of my knowledge, information and belief. To the extent the content of the document is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904. Calabrese & Sons, Inc. J epb alabrese CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Joseph G. Gibbons White and Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Lenape Forge, Inc. 1280 Lenape Road Box 536 West Chester, PA 19382 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER 4 y Tricia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: *j6, c200-1 F.\FILES\DATAFILE\General\Current\I 1093\11093.1 Lc=2 CERTIFICATION I, John D. Wilbur hereby submit this Certification in support of the Preliminary Objections of Defendant, Lenape Forged Products Corp. to Plaintiffs Amended Complaint and hereby certify as follows: I am the President of defendant, Lenape Forged Products Corp. ("Lenape Products") and I am authorized to make this Certification on its behalf. 2. Lenape Products is a Delaware corporation incorporated on December 15, 2005. See Good Standing Certificate of Secretary of State of Delaware attached hereto as Exhibit "A". 3. Lenape Products' place of business is located at 1334 Lenape Road, Chester County, Pennsylvania (the "Chester County Facility"), and has no other places of business in the Commonwealth of Pennsylvania. 4. Defendant Lenape Forge, Inc. ("Lenape Forge"), is a Pennsylvania corporation formed in 1983. See Pennsylvania Department of State corporate search attached hereto as Exhibit "B". Lenape Forge formerly conducted business at the Chester County Facility and, upon information and belief, defaulted on loans provided by its secured lender, Merrill Lynch Business Financial Services, Inc. ("Merrill Lynch"). 6. Lenape Products and Lenape Forge are separate, unaffiliated companies. Lenape Products neither owns nor controls Lenape Forge and none of the owners or officers of Lenape Forge own or control Lenape Products. 7. On or about January 1, 2006, Lenape Products purchased certain assets of Lenape Forge located at the Chester County Facility pursuant to a private foreclosure sale conducted by PHLDMS 13074995v.2 Merrill Lynch. 8. Lenape Products does not have any customers in Cumberland County, Pennsylvania, and does not conduct any business there. 9. Lenape Products is not a party to the alleged contract between the plaintiff and Lenape Forge that is the subject of the plaintiff s complaint. In fact, Lenape Products did not even exist at the time that alleged contract was made. 10. The statements made herein are true and correct to the best of my knowledge information and belief. 11. The undersigned further understands that the statements made herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsifications to authorities. 6 1 ?tl n ?t'? , I?XtAlj? 2 1)/14A,, At4 WAV---- John D. Wilbur P HLDMS 1 3074995v.2 XY=X•Y"X a?XY: XXX XTX:r +`. ? X X X *? ? R WY-.TL AN--- WIL7-iAMS LLU ?y ` " p\ D ?M*T D?Rq- PaG Si 1:i0DE ?.dE i GCUME , =RS X26 65i)-774 32#3#i7' Q31g5 X62tS[,4321#3#: 72431°5. ` White and Williams LLP W 1800 One Liberty Place Webstre: vvww.,vhiieandwilhains.eom Philadelphia, PA 19103-7395 Phone: 215.864.7000 Fax. 215.864.7123 Date: April 3.2007 FAX COVER LETTER IMPORTANT! if an international number, please include the international access code ;011), country code (e.g., '44" for united Kingdom). and City Cod: dapplicabl a ie.g., -11" for London, "2" for Brusses. etc.) TO COMPANY PHONE NO. FAX NO. David o , Fitzsimons, Es uire l 0.17) 243-3341 i (717) 243-1850 Flom Joseph G. Gibbons Direct Dial: 215.864.7074 Re. Direct Fax. 215.789.7614 Comments. Attorney I.D. #: 2262 File # 0030432-00003 3 File Name: CALABRESE & SONS, INC. IRS Circular 230 Notice: To ensure compliance with certain regulations promulgated by the U.S. Internal Revenue Service, we inform you that any faderal tax advice contained in this communication ' I (including any attachments) is not intended or writtetm'to be used, and cannot be used, by any taxpayer for j the purpose of (1) avoiding tax-related penalties under #bc U.S. Intomal Revcnuc Code, or (2) promoting, } marketing or recommending to another party any tax-related matters addressed herein, unless expressly stated otherwise. This facsimile contains confidential information Intended only for the use of the addressee(s) named above and may contain information that Is legally privileged If you are not the addressee, or the person responsible for delivering it to the addressee, you are hereby notified that I reading, disseminating or copying this facsimile is strictly prohibited. If you have received this facsimile by ` mistake; please immediately notify us by telephone and retm the original message to us at the address above via `Postal Semce (we will reimburse postage). That'll: you. Vnn ohn„ 14 _e..e...,, ____i_ . . . * It White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Phone: 215.864.7000 Fax: 215.864.7123 April 3, 2007 VIA FACSIMILE (717) 243-1850 David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 Joseph G. Gibbons Counsel Direct Dial: 215.864.7074 Direct Fax: 215.789.7614 gibbonsj@whiteandwilliams.com RE: Calabrese & Sons, Inc. v. Lenape Forge Inc. and Lenape Forged Products Corp., et al. Dear Mr. Fitzsimons: As you know, this law firm represents Lenape Forged Products Corp. only, in the above- referenced matter (the "Action"). On Monday, March 26, 2007, we received a copy of Plaintiff's Notice to Take Default Judgment against Defendant, Lenape Forge Inc., in the Action. An examination of both the cover letter and the Certificate of Service affixed to the Notice of Default indicates that Plaintiff attempted to make service on Lenape Forge, Inc., at 1334 Lenape Road, West Chester, PA (the "Premises"). As my colleague, Steven Ostrow advised you, and as more fully set forth in its Preliminary Objections to the Complaint in the Action, our client, Lenape Forged Products Corp. owns the real and personal property located at the Premises as a result of its purchase of said property pursuant to execution sales conducted by the secured creditors of Lenape Forge Inc. copies of the Sheriff s deed and private sale agreement between Merrill Lynch Business Financial Services, Inc. are enclosed for your reference. Allentown, PA - Berwyn, PA - Cherry Hill, NJ New York, NY - Paramus, NJ - Pittsburgh, PA - Wilmington, DE PHLDMSI 3090580v.2 April 3, 2007 Page 2 Based upon the foregoing, both the Premises and all of the assets contained on the Premises are owned by our client Lenape Forged Products Corp. and not Lenape Forge, Inc. Accordingly, please be advised that we will consider any attempt to levy upon the Premises or any assets contained thereon in satisfaction of any judgment you obtain against Lenape Forge, Inc. an abuse of process for which we will seek appropriate sanctions. Please be guided accordingly. Very truly yours, WHITE AND WILLIAMS LLP By: *sh Gibbons JGG:da Enclosure cc: Steven E. Ostrow, Esquire Robert A. Kargen, Esquire PHLDMS 1 3090580v.2 t"z N C3 "Jr i E!'• Gil '",> -w .M SHERIFF'S RETURN - OUT OF COUNTY C.ZASE NO: 2007-00428 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CALABRESE & SONS INC VS LENAPE FORGE INC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: LENAPE FORGE INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of CHESTER County, Pennsylvania, to serve the within COMPLAINT & NOTICE On February 12th , 2007 , this office was in receipt of the attached return from CHESTER Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Chester Co 28.85 Postage 3.21 ,p1 69.06 ?;. Ik ' 02/12/2007 MDW&O So answ '` ?% i R.-Thomas Kl in&-_ Sheriff of Cumberland County Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-00428 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CALABRESE & SONS INC VS LENAPE FORGE INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: LENAPE FORGED PRODUCTS CORPORATION but was unable to locate Them deputized the sheriff of CHESTER in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On February 12th , 2007 , this office was in receipt of the attached return from CHESTER Sheriff's Costs: So answers ?- Docketing 6.00 Out of County .00 --- Surcharge 10.00 R. Thomas Kline .00 Sheriff of Cumberland County .00 16.00 y- .2 7 02/12/2007 MDW&O Sworn and subscribe to before me this day of , A. D. Feb. 6. 2007 1 4ti13PM, Cumberland vCo. She} f:a county Sheriff. Thankti 9996 . 3 In. The Court of Common Pleas of Cumberland County, Pennsylvania Calabrese & Sons Inc VS. Lenape Forge Inc et al SERVE: Lenape Forgo Inc No. 07-428 civil Now, Jar=axy 22, 2007. , I, SHERIFF OF CUMBERLAND hereby deputize the Sheriff of Chester A County to execute this Wr 1 deputation being made at the request and risk of the Plaintiff. •??„ ---------------- Sheriff of Cumberland County, PA Affidavit of Service Now, S,a^jvflzY 29 , 20 0-7 , ate o'clock M. served the Within 60HP6gIA17- upon /&-J r- '4446 a 6. at (aim '4aef--6 by handing to KEvav SWvw a 7-Rue . copy of the original (o?PUirv7- and made known to //11 " the contents thereof. So answers, I2? la-7 4 C ShWiff of County, PA Sworn ands bscribed before me this,3 of 20 0`1 b COSTS SERVICE S MILEAGE AFFIDAVIT NOTARIAL SEAL Rebecca S. Yepremian, Notary Public West Chester Boro., Chester County My commission expires August 6, 2008 Feb. 6. 2007, 4-13PM Cumberland Co. Sheriff No.9996 r,. 4 ricaoc „ipil !ctutil of z,,mLvi.uG Lu %,utiut=jLc?!d County Sheriff. Thank yuu. do The Court of Compton Pleas of Cumberland County, Pennsylvania. Calabrese & Sans Inc VS. Lp,nape Fbrge Inc et al SERVE: L,enape Fbrged Products Corporation No. 07-428 civil Now, January 22, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do d i? hereby deputize the Sheriff of Chester County to execute this , t+ deputation being made at the request and risk of the Plaintiff. .N _ O Q 7 A??4 ?C-el e Sberiff of Cumberland County, PA 'a N s' J ' Affidavit of Service Now, 3&vwd9&,, 29 , 20 0 7 , at -3 `45 o'clock t'?I' M. served the within (40 0,V1*-Apr upon Tta af- 4~0 ??Co?rx?s at 6i v?osh .4mg s by handing to //6vwz &?(w a TREE . Cps Sh of County. PA and made known to W ",/ the contents thereof. So answers, Sworn and labscribed before me thia 3 O 'day o , 20 0-1 copy of the original C. "vMPLN„ COSTS SERVICE MILEAGE AFFIDAVIT Fcq IAL FE/ mian, Noiu public ro .. Chcs'wr county v;" e:Ug4. 5.2008 ` I WHITE AND WILLIAMS LLP BY: Steven E. Ostrow, Esquire Identification No.: 50568 1800 One Liberty Place Philadelphia, PA 19103 (215) 864-6248 Attorneys for Defendant Lenape Forged Products Corporation CALABRESE & SONS, INC. CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, V. . NO. 07-428 LENAPE FORGE, INC., and : CIVIL ACTION - LAW LENAPE FORGED PRODUCTS CORPORATION, Defendants. PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. 1. State matter to be argued: Preliminary Objections of Defendant Lenape Forged Products Corporation to Amended Complaint 2. Identify counsel who will argue case: (a) for Plaintiff: David A. Fitzsimmons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlise, PA 17013 (b) for Defendant Lenape Forged Products Corporation: Steven E. Ostrow, Esquire Joseph G. Gibbons, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 PHLDMS 1 3264282v.1 J, 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 3, 2007 WHITE AND WILLIAMS LLP By: - f-?- zi S even E. Ostrow, Esquire Attorney for Lenape Forged Products Corporation Date: August 15, 2007 PHLDMS 1 3264282v.1 -2- fi G=i r; ` T1 - ?„ ?; __ TI 16 Calabrese & Sons, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. Lenape Forge, Inc., and Lenape Forged Products Corporation NO. 2007-428 CIVIL TERM ORDER OF COURT AND NOW, October 4, 2007, by agreement of counsel, the above-captioned matter is continued from the October 3, 2007 Argument Court list. Counsel is directed to relist the case when ready. By the Edgar B. Bayley, J. David A. Fitzsimmons, Esquire For the Plaintiff o ?f o 7 61 Steven Ostrow, Esquire For the Defendant Court Administrator kam Ct. C' "1 - +_s':?: ??;?; - - c'i`? = Lt.' ??. .F? .. - U_ .? r c-? ??? ?.? ..J WHITE AND WILLIAMS LLP BY: Steven E. Ostrow, Esquire Identification No.: 50568 1800 One Liberty Place Philadelphia, PA 19103 (215) 864-6248 Attorneys for Defendant Lenape Forged Products Corporation CALABRESE & SONS, INC. CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, V. ; NO. 07-428 LENAPE FORGE, INC., and CIVIL ACTION - LAW LENAPE FORGED PRODUCTS CORPORATION, : Defendants. PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. 1. State matter to be argued: Preliminary Objections of Defendant Lenape Forged Products Corporation to Amended Complaint 2. Identify counsel who will argue case: (a) for Plaintiff: David A. Fitzsimmons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlise, PA 17013 (b) for Defendant Lenape Forged Products Corporation: Steven E. Ostrow, Esquire Joseph G. Gibbons, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 PHLDMS 13264282v.2 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 21, 2007 WHITE AND WILLIAMS LLP By: f?'- '?% - Steven E. Ostrow, Esquire Attorney for Lenape Forged Products Corporation Date: October 19, 2007 -2- PHLDMS 1 3264282v.2 hJ - .a Him F? i am J .{ C mac, r, 4 FARLESTfients\1 1093\1 1093. 1 LPraecipe.Default.Judgment.LenapeForge.wN David A. Fitzsimons, Esquire I.D. No. 41722 Trudy E. Fehlinger, Esquire I.D. No. 202753 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 07=24* CIVIL ACTION -LAW LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants TO THE PROTHONOTARY: orl -Nag JURY TRIAL DEMANDED PRAECIPE Enter default judgment in the above-captioned action in favor of Plaintiff and against Defendant Lenape Forge, Inc. in the amount of $37,411.02, plus statutory interest, costs, attorney's fees, punitive damages, and such other relief as the Court deems just and reasonable under the circumstances as prayed for in the Amended Complaint for Defendant Lenape Forge, Inc.'s failure to file an answer to the Amended Complaint. I do hereby certify that a written notice of intention to file this Praecipe (in the form attached hereto) was mailed to the Defendant at the address indicated thereon, on March 21, 2007, which date was subsequent to the date default occurred and at least ten days prior to the date of this Praecipe. MARTSON LAW OFFICES 1B .? David . itzsimons, Esquire I.D. No. 41722 Trudy E. Fehlinger, Esquire I.D. No. 202753 MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: December 7, 2007 Attorneys for Plaintiff . r- gr -v X 4 s? F.' FILES\DATAFILE\Genaral\Current\I1093\1lr ' t 1 h1daynoUte\tde ' Created. 9'20;04 0 OOPM Re% ised: 3 _ 1, 07 10 43AM 1 1093 1 1 d 0 David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., Plaintiff, V. LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-248 CIVIL ACTION -LAW : JURY TRIAL DEMANDED IMPORTANT NOTICE TO: LENAPE FORGE, INC., PROSE DEFENDANT YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone:(717) 249-3166 MA TSON LAW OFFICES By David A. Fitzsimons, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: March 21, 2007 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing 10 Day Notice was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven E. Ostrow, Esquire WHITE & WILLIAMS, LLP 1800 One Liberty Place Philadelphia, PA 19103 Lenape Forge, Inc. 1334 Lenape Road West Chester, PA 19832 MARTSON LAW OFFICES LA -41 Tricia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 21, 2007 David A. Fitzsimons, Esquire I.D. No. 41722 Trudy E. Fehlinger, Esquire I.D. No. 202753 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., Plaintiff, V. LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-248 CIVIL ACTION -LAW : JURY TRIAL DEMANDED COMMONWEALTH OF PENNSYLVANIA ) : SS COUNTY OF CUMBERLAND Trudy E. Fehlinger, Esquire, being duly sworn according to law, deposes and says that he is an employee of MARTSON, DEARDORFF, WILLIAMS OTTO GILROY & FALLER, attorneys for the Plaintiff in the above captioned matter and that pursuant to the provisions of the Pennsylvania Rules of Civil Procedure, a notice of intention to enter default judgment against the Defendant Lenape Forge, Inc. was given to Defendant Lenape Forge, Inc. by mail at 1334 Lenape Road, West Chester, Pennsylvania 19832 on March 21, 2007. Sworn to and sub nbed before me this day of bf(, 206-7 C, 6- Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Mersa A. Scholly, Notary Public Carlisle Boro, Cumberland County My Commission Expires Jan. 19, 2010 Member, Pennsylvania Assoolatlon of Notaries r Trudy E. Fe finger, Esquire CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent of Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe to Enter Default Judgment was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven E. Ostrow, Esquire WHITE & WILLIAMS, LLP 1800 One Liberty Place Philadelphia, PA 19103 Lenape Forge, Inc. 17 West Miner Street West Chester, PA 19380 MARTSON LAW OFFICES Tfti5 'D. Eckenroad' Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: December 7, 2007 ? "'(, Q Q ? c ,? a v D ?4 a {^; n.a _ c`:a ?:_. u ?? C:? . ?- -.a `rli {' ? I ?" ?; ! _'? ???" - , _. ,? - ?' ??? ;; <?? r ==? T i David A. Fitzsimons, Esquire I.D. No. 41722 Trudy E. Fehlinger, Esquire I.D. No. 202753 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., Plaintiff, V. LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-248 CIVIL ACTION -LAW : JURY TRIAL DEMANDED NOTICE OF ENTRY OF DEFAULT JUDGMENT TO: LENAPE FORGE, INC., DEFENDANT You are hereby notified that on &0± 7 , 2007, the following Judgment was entered against you in the above-captioned case in favor of Plaintiff in the amount of $37,411.02, plus statutory interest, costs, attorney's fees, punitive damages, and such other relief as the Court deems just and reasonable under the circumstances as prayed for in the Amended Complaint for your failure to file an answer to the Amended Complaint. Date: December 7, 2007 r thonotary I hereby certify that the name and address of the proper person to receive this notice under Pa.R.Civ.P. 236 is: Lenape Forge, Inc. 17 West Miner Street West Chester, PA 19380 'v MARTSON LAW OFFICES By Da " A. Fi zs' ons, Esquire I.D. No. 417 2 Trudy E. Fehlinger, Esquire I.D. No. 202753 MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: December 7, 2007 Attorneys for Plaintiff CALABRESE & SONS, INC., Plaintiff vs. LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-428 CIVIL JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF LENAPE FORGED PRODUCTS CORPORATION BEFORE BAYLEY, P.J., AND HESS, J. ORDER AND NOW, this /3' day of December, 2007, following argument thereon, the preliminary objections of Lenape Forged Products Corporation are DENIED. BY THE COURT, L //? / Hess, J. avid Fitzsimons, Esquire Trudy E. Fehlinger, Esquire For the Plaintiff Xteven E. Ostrow, Esquire Joseph G. Gibbons, Esquire For the Defendant Lenape Forged Products Corporation nape Forge, Inc. 1280 Lenape Road Box 536 West Chester, PA 19382 rlm J n ?? -Hi ? ? NOTICE TO PLEAD WHITE AND WILLIAMS LLP BY: Steven E. Ostrow/Joseph G. Gibbons Identification No(s). 50568160378 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7074 TO: Plaintiff You are hereby notified to file a written response to the following Answer and New Matter within twenty (20) days of service hereof or a judgment may be entered against you. n Ats for Defendant, Lenape Forged Products cg;; Attorneys for Defendant, Lenape Forged Products Corp. CALABRESE & SONS, INC. CUMBERLAND COUNTY : COURT OF COMMON PLEAS Plaintiff, V. : NO. 07-428 LENAPE FORGE, INC., and CIVIL ACTION - LAW LENAPE FORGED PRODUCTS CORPORATION Defendant. ANSWER AND NEW MATTER OF DEFENDANT, LENAPE FORGED PRODUCTS CORP., TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Lenape Forged Products Corp. ("Products"), through its counsel, White and Williams LLP, hereby asserts the following Answer and New Matter to Plaintiff's Amended Complaint and in support thereof avers as follows: PHLDMS 1 3854293v.3 Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 1 and therefore said allegations, to the extent material, are denied. 2. Denied. Paragraph 2 is directed at parties other than Products and therefore no response is required. To the extent a response is required, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 2 and therefore, to the extent material, said allegations are denied. Upon information and belief, Defendant, Lenape Forge, Inc. ("LFI") is no longer in business. 3. Admitted. 4. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 4 and therefore, to the extent material, said allegations are denied. 5. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 5 and therefore, to the extent material, said allegations are denied. 6. Admitted in part, denied in part. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations relating to defendant, LFI, and therefore, to the extent material, said allegations are denied. It is admitted that Products is engaged in the business of producing raw forgings. It is expressly denied that Products ever produced any raw forgings for plaintiff, Calabrese and Sons, Inc. ("Calabrese") or that Products ever entered into any business transaction with Calabrese. 2 PHLDMS 1 3854293v.3 7. Admitted in part, denied in part. It is admitted that Products has obtained authorization from the Secretary of State of the Commonwealth of Pennsylvania to conduct business operations in the Commonwealth. Products, however, lacks sufficient knowledge with which to form a belief as to the truth of the assertions related to defendant, LFI, and therefore, to the extent material, said allegations are denied. 8. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 8 and therefore, to the extent material, said allegations are denied. 9. Denied. Paragraph 9 consists of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, at no time has Products conducted any business transactions with Calabrese in Cumberland County or elsewhere. By way of further response, at no time has Products conducted any business operation in Cumberland County or with any parties located in Cumberland County, Pennsylvania. 10. Denied. Paragraph 10 contains no allegation with respect to or directed at Products and therefore no response is required. To the extent that any allegation in paragraph 10 is deemed to relate to Products, Products lacks sufficient information with which to form a belief as to the truth of any allegations related to any alleged contract between Calabrese and LFI and therefore, to the extent material, said allegations are denied. 11. Denied. Paragraph 11 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 11 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, PHLDMS 1 3854293v.3 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 12. Denied. Paragraph 12 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 12 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 13. Denied. Paragraph 13 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 13 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 14. Denied. Paragraph 14 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 14 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 4 PHLDMS 1 3854293v.3 15. Denied. Paragraph 15 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 15 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 16. Denied. Paragraph 16 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 16 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 17. Denied. Exhibit 6 to Plaintiff's Complaint is a written document the terms of which speak for themselves and Plaintiff's characterization thereof is expressly denied. 18. Denied. At the time of the transaction alleged in paragraph 18, Products did not exist. Products was not formed until December 15, 2005; conducted no business until January 1, 2006; and lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 18. Accordingly, said allegations are denied. 19. Denied. The allegations contained in paragraph 19 are directed at parties other than Products and therefore no response is required. By way of further response but not in derogation of the foregoing, Products lacks sufficient knowledge with which to form a belief as 5 PHLDMS 1 3854293v.3 to the truth of the allegations contained in paragraph 19 therefore, to the extent material, said allegations are denied. 20. Denied. Upon information and belief, Calabrese issued the purchase order in question to LFI. At the time of the transaction or occurrence alleged in paragraph 20, Products did not yet exist. Products was not formed until December 15, 2005 and lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 20 therefore, to the extent material, said allegations are denied. 21. Admitted in part, denied in part. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 21 which are directed at LFI and therefore, to the extent material, said allegations are denied. It is admitted that Calabrese made demand on Products for payment of amounts which Calabrese allegedly paid to LFI and that Products refused to honor such demand. To the extent the allegations in paragraph 21 infer that Products has any obligation to Calabrese related to the alleged contract between Calabrese and LFI, said allegation is denied. 22. Denied. On October 11, 2005, Products did not yet exist. Products was not formed until December 15, 2005. Products neither forwarded the alleged communication to Calabrese nor authorized anyone to forward such alleged communication on its behalf. 23. Products incorporates by reference paragraph 22 of this Answer as fully as though set forth herein at length. By way of further response, but not in derogation of the foregoing, Exhibit 9 to the Complaint is a written document the terms of which speak for themselves and Plaintiff s characterization thereof is expressly denied. 6 PHLDMS 13854293v.3 24. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 24 therefore, to the extent material, said allegations are denied. 25. Admitted in part, denied in part. It is admitted that David Hershbell is an employee of Products. Upon information and belief, Mr. Hershbell was previously employed by LFI and, on behalf of LFI, issued the revised quote attached to the Complaint as Exhibit 8. To the extent that paragraph 25 implies any action or inaction of Mr. Hershbell while employed by LFI or any other entity could be attributed to or binding on Products, such allegation is expressly denied. 26. Admitted in part, denied in part. Upon information and belief, Mr. Hershbell advised Calabrese that the quote needed to be revised. Products lacks sufficient knowledge regarding the state of mind of Mr. Calabrese and therefore the allegations related to his reason for agreeing to the revisions, to the extent material, are denied. 27. Admitted upon information and belief. 28. Denied. Upon information and belief, Mr. Calabrese was informed more than once between July 15, 2005 and December 21, 2005 that LFI had ceased all business operations. 29. Admitted in part, denied in part. Upon information and belief, Mr. Hershbell was aware of the financial difficulties of LFI in June 2005 but was not aware that any diversion of funds had occurred. 30. Admitted upon information and belief. 31. Denied. Upon information and belief, Mr. Calabrese was informed more than once between July 15, 2005 and December 21, 2005 that LFI had ceased all business operations. 7 PHLDMS 1 3854293v.3 32. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 32 related to LFI therefore, to the extent material, said allegations are denied. It is expressly denied that Products and LFI share any common employees, directors, officers or owners in any way. Upon information and belief, LFI ceased all business operations on July 15, 2005. Afterward, Products hired one or more former employees of LFI. At no time, however, was any person employed by both LFI and Products simultaneously and as set forth more fully above, Products was not and is not a party to the alleged contract between Calabrese and LFI as Products did not come into existence until after that alleged contract was purportedly breached by LFI. Neither Mr. Hershbell nor Mr. Stolz was employed by Products on December 21, 2005. By way of further response, Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations of damages which were allegedly incurred by Calabrese as a result of LFI's alleged breach of the alleged contract. 33. Denied. Neither Mr. Hershbell nor Mr. Stolz were employed by Products on December 21, 2005. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff's attorney on December 21, 2005 not 2006. Upon information and belief, Mr. Hershbell and Mr. Stolz agreed to contact Ellwood Quality Steel and obtain a price for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell and Mr. Stolz contacted Ellwood Quality Steel and obtained a price quote for raw materials for a potential new contract. 34. Denied. Paragraph 34 consists of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, 8 PHLDMS 1 3854293v.3 Neither Mr. Hershbell and Mr. Stolz was employed by Products on December 21, 2005. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 34 therefore, to the extent material, said allegations are denied. 35. Admitted in part, denied in part. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff s attorney on December 21, 2005 not 2006. On December 21, 2005 neither Mr. Hershbell nor Mr. Stolz were employed by Products. Upon information and belief Mr. Calabrese and Plaintiff s attorney communicated the message set forth in paragraph 35 at the December 21, 2005 meeting. Upon information and belief, Mr. Calabrese was told that LFI, the party responsible for the contract, had ceased operations on July 15, 2005. 36. Denied. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff s attorney on December 21, 2005 not 2006. Neither Mr. Hershbell nor Mr. Stolz were employed by Products on December 21, 2005. Upon information and belief, Mr. Hershbell and Mr. Stolz agreed to contact Ellwood Quality Steel and obtain a price for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell and Mr. Stolz contacted Ellwood Quality Steel and obtained a price quote for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell determined that a new contract to produce the billet requested by Plaintiff was not feasible. To the extent that paragraph 36 infers that Mr. Hershbell and/or Mr. Stolz were employees or representative of Products on December 21, 2005 9 PHLDMS 13854293v.3 or that any representative of Products could obtain billet from Ellwood Quality Steel' for which Ellwood Quality Steel had not received payment, said allegation is expressly denied. 37. Denied. Upon information and belief, no lawsuit was discussed at the December 21, 2005 meeting. To the extent paragraph 37 infers that Mr. Hershbell and Mr. Stolz were employees or representatives of Products on December 21, 2005, said allegation is denied. 38. Denied. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff's attorney on December 21, 2005 not 2006. Neither Mr. Hershbell nor Mr. Stolz were employed by Products on December 21, 2005. Upon information and belief, Mr. Hershbell and Mr. Stolz agreed to contact Ellwood Quality Steel and obtain a price for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell and Mr. Stolz contacted Ellwood Quality Steel and obtained a price quote for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell determined that a new contract to produce the billet requested by Plaintiff was not feasible. To the extent that paragraph 36 infers that Mr. Hershbell and/or Mr. Stolz were employees or representative of Products on December 21, 2005 or that any representative of Products could obtain billet from Ellwood Quality Steel for which Ellwood Quality Steel had not received payment, said allegation is expressly denied. 39. Admitted. 40. Denied. It is expressly denied that any amounts allegedly forwarded by Calabrese to LFI benefited Products in any way. Products was formed on December 15, 2005 Products purchased the real property previously owned by LFI at a regularly conducted sheriff sale after a 1) The Complaint contains a number of references to Ellwood City Steel in addition to Ellwood Quality Steel. Products believes that Calabrese intended for all such references to refer to Ellwood Quality Steel and has responded accordingly. In the event this assumption is incorrect, to the extent material, Products reserves the right to amend this Answer and New Matter to refer to the correct entity. 10 PHLDMS 1 3854293v.3 foreclosure by one of LFI's secured creditors. Products purchased certain personal property of LFI pursuant to a private UCC sale conducted by another foreclosing creditor of LFI. To the extent that paragraph 40 alleges that Products had any duty to Calabrese, said allegation is denied. Moreover, neither Mr. Hershbell nor Mr. Stolz was employed by Products at the time of the meeting alleged in the Complaint. Products lacks sufficient knowledge with which to form a belief as to the truth of the remaining allegations contained in paragraph 40 therefore, to the extent material, said allegations are denied. 41. Products incorporates by reference paragraph 33 of this Answer and New Matter as fully as though set forth herein at length. 42. Denied. It is denied that any employee of Products made any representation to Calabrese related to this matter. Products lacks sufficient knowledge with which to form a belief as to the truth of the remaining allegations contained in paragraph 42 therefore, to the extent material, said allegations are denied. 43. Denied. To the extent that paragraph 43 infers that Products had any obligation whatsoever to assist Calabrese in obtaining billet said allegation is expressly denied. To the extent paragraph 43 alleges that no one on behalf of Products contacted Ellwood Quality Steel in an attempt to obtain billet for Calabrese, said allegation is admitted. To the extent paragraph 43 alleges that no one from Products submitted a proposal to Calabrese for obtaining billet from Ellwood Quality Steel, said allegation is admitted. Upon information and belief, any attempt to contact Ellwood Quality Steel to obtain billet for which Ellwood Quality Steel had not received payment would have been futile. As a result, Calabrese was not and could not have been harmed as a result of any inaction by Products in this regard. 11 PHLDMS 13854293v.3 44. Denied. Paragraph 44 consists entirely of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, at the time alleged representations referred to in the Complaint were made, neither Mr. Hershbell nor Mr. Stolz was employed by Products. Moreover, based upon the allegations contained in the Complaint, any damages sustained by Calabrese occurred prior to the date upon which Products came into existence. Accordingly, it is factually impossible for Calabrese to have sustained damages resulting from any alleged representation or misrepresentation of Products. Moreover, Products neither forwarded the "mailings" referred to in paragraph 44 to Calabrese no authorized anyone to forward such alleged "mailings" on its behalf. COUNT I - BREACH OF CONTRACT Calabrese and Sons, Inc. v. Lenape Forge, Inc. 45. Products incorporates by reference paragraph 1 through 44 of this Answer and New Matter as fully as though each were set forth herein at length. 46. The allegations contained in paragraph 46 are directed at parties other than Products and therefore no response is required. WHEREFORE, Defendant, Products demands judgment in its favor and against Plaintiff together with attorneys' fees and costs of suit. COUNT II - BREACH OF CONTRACT Calabrese and Sons, Inc. v. Lenape Forged Products Corporation 47. Products incorporates by reference paragraph 1 through 46 of this Answer and New Matter as fully as though each were set forth herein at length. 12 PHLDMS 1 3854293v.3 48. Denied. At no time did LFI transfer any assets to Products. As set forth more fully above, Products purchased certain real property previously owned by LFI at a regularly conducted sheriff sale in a foreclosure action brought by a secured creditor of LFI. Products purchased certain personal property of LFI at a private UCC sale conducted by a different secured creditor of LFI. At no time did Products obtain any assets directly from LFI. To the extent that paragraph 48 alleges that Products' purchase of assets from any party violated the Pennsylvania Uniform Transfer Act or the Pennsylvania Uniform Fraudulent Transfers Act (the "PAUFTA"), said allegation consists of conclusions of law which are deemed denied. To the extent Products' purchase of the assets previously owned by LFI may be deemed a transfer, Products lacks sufficient knowledge with which to form a belief as to the intent of LFI. Therefore, to the extent material, such allegations are denied. 49. Denied. As set forth more fully above, Products neither entered into any contract with Calabrese nor assumed any other party's obligations under a contract with Calabrese. Based upon the allegations contained in the Complaint, if proven, LFI entered into and breached its contract with Calabrese long before Products ever came into existence. WHEREFORE, Products demands judgment in its favor and against Calabrese together with attorneys' fees and costs of suit. COUNT III - FRAUD Calabrese and Sons, Inc. v. Lenape Fore, Inc 50. Products incorporates by reference paragraph 1 through 49 of this Answer and New Matter as fully as though each were set forth herein at length. 13 PHLDMS] 3854293v.3 51. Denied. The allegations set forth in paragraph 51 are directed at parties other than Products and therefore no response is required. To the extent a response is deemed required, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 51 therefore, to the extent material, such allegations are denied. 52. Denied. The allegations set forth in paragraph 52 are directed at parties other than Products and therefore no response is required. To the extent a response is deemed required, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 52 therefore, to the extent material, such allegations are denied. 53. Denied. The allegations contained in paragraph 53 are directed at parties other than Products and therefore no response is required. To the extent a response is required, the allegations contained in paragraph 53 consist entirely of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 53 therefore, to the extent material, such allegations are denied. WHEREFORE, Products demands judgment in its favor and against Calabrese together with attorneys' fees and costs of suit. COUNT IV - FRAUD Calabrese and Sons, Inc. v. Lenape Forced Products Corporation 54. Products incorporates by reference paragraph 1 through 53 of this Answer and New Matter as fully as though each were set forth herein at length. 55. Denied. Paragraph 55 consists of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, as 14 PHLDMS] 3854293v.3 set forth more fully above, LFI never transferred any assets to Products. Products purchased certain real property previously owned by LFI at the regularly scheduled sheriff sale conducted in a foreclosure proceedings brought by a secured lender of LFI. Products purchased other assets previously owned by LFI at a private UCC sale conducted by another secured creditor of LFI. Both of these transactions arose out of good faith, arms-length negotiations between Products and the foreclosing creditors of LFI. 56. Denied. As set forth more fully above, Products purchased certain assets that were previously owned by LFI in two separate transactions. Certain real property previously owned by LFI was purchased at the regularly conducted sheriff sale pursuant to a judgment in foreclosure obtained by a secured creditor of LFI. Certain personal property previously owned by LFI was purchased pursuant to a good faith, arms-length private UCC sale conducted by the foreclosing creditor which had a lien on the personal property of LFI. It is admitted that Products has taken the position that it has no obligations to Calabrese or any other creditor of LFI arising out of transactions between those creditors and LFI. To the extent that paragraph 56 infers that Products has any liability arising out of any obligation of LFI to any creditor of LFI, said allegation is expressly denied. 57. Admitted in part, denied in part. It is admitted that certain employees of Products have informed certain employees or representative of Calabrese that Products has no obligation to Calabrese arising out of the transactions upon which this action are based. To the extent that paragraph 57 infers that any current or former officer, director, or shareholder of LFI is or ever was an officer, director, or shareholder of Products, said allegation is expressly denied. It is admitted that Products hired one or more employees of LFI after LFI ceased operation. To the 15 PHLDMS 1 3854293v.3 extent that paragraph 56 infers that Products has any liability arising out of any obligation of LFI to any creditor of LFI, said allegation is expressly denied. 58. Denied. To the extent that the allegations contained in paragraph 58 consist of conclusions of law, said allegations are deemed denied without further response. By way of further response, but not in derogation of the foregoing, as a matter of law, Products has no obligation whatsoever to Calabrese or any other creditor of LFI by virtue of its purchase of assets formerly owned by LFI from the foreclosing creditors of LFI. Moreover, Products neither entered into any contract with Calabrese nor received any of the funds that Calabrese allegedly forwarded to LFI pursuant to the alleged contract between those two entities. The assets which Products purchased were separated from the liabilities of LFI by operation of law at the time of the Sheriff's Sale of the real property and the UCC sale of the personal property. 59. Denied. No response is required to those allegations contained in paragraph 59 which are directed at parties other than Products. To the extent material, however, such allegations are denied. It is expressly denied that Products took any action in connection with its purchase of certain assets of LFI from the foreclosing creditors of LFI with the intent to cause, or with knowledge that such action would likely cause, damage, embarrassment, or loss of any kind to Calabrese or any other creditor of LFI. 60. Denied. Paragraph 60 consists entirely of conclusions of law which are deemed denied without further response. WHEREFORE, Products demands judgment in its favor and against Calabrese together with attorneys' fees and costs of suit. 16 PHLDMS 1 3854293v.3 NEW MATTER 61. Products incorporates by reference paragraph 1 through 60 of this Answer and New Matter as fully as though each were set forth herein at length. 62. Products is a Delaware corporation which was formed on December 15, 2005 and which purchased certain assets of LFI from certain foreclosing creditors of LFI. 63. Although Products occupies the facility formerly operated by LFI, the two corporations are distinct corporate entities. 64. Products neither owns nor controls LFI and none of the owners or officers of LFI owns or controls Products 65. Products purchased the foreclosed assets on January 1, 2006 more than eight (8) months after Calabrese allegedly issued the purchase order to LFI which is the subject matter of this action and more than six (6) months after Calabrese allegedly forwarded payment to LFI for the billets. 66. Because Products is not a party to any contract with Calabrese and did not assume or guaranty any obligations of any party to such alleged contract, it is not liable to Calabrese for breach of any contract which Calabrese entered into with LFI or any other party. 67. Fatal to Calabrese's claim for fraud is the fact that Calabrese does not allege, nor can it allege, that Products made any representation whatsoever to Calabrese prior to September 28, 2005 the date on which, Calabrese contends, it allegedly suffered damages as the result of LFI's failure to deliver the billets pursuant to its alleged contract with Calabrese. 17 PHLDMS 1 3854293v.3 68. The Amended Complaint does not and, in fact, Calabrese cannot, allege facts which, if proven, would establish a violation of the PAUFTA. 69. At all times material hereto, the amount which LFI owed to the secured creditor which sold the personal property to Products exceeded the value of LFI's personal property. Accordingly, no transfer occurred under the PAUFTA. See 12 Pa.C.S.A. § 5101(b) (property of debtor encumbered by a valid lean does not constitute an "asset" when determining if a transfer has occurred). 70. Moreover, pursuant to the express terms of the PAUFTA, the sale of those assets to Products was not fraudulent. See 12 Pa.C.S.A. § 5108(e) (transfer resulting from enforcement of security interest in compliance with Article 9 of the UCC is deemed not fraudulent). 71. Although the Complaint alleges that certain employees of Products made certain representations to Calabrese, the alleged representations were apparently made at a meeting that took place on or about December 21, 2005 and not December 21, 2006, as alleged. Moreover, those representations and were allegedly made by persons who were not, at the time, employees, representatives or agents of Products. Finally, such alleged representations were allegedly made after the alleged breach of contract by LFI and any resultant damage to Calabrese and Calabrese has not and cannot allege that it suffered any damages as a proximate result of such alleged representations. 72. Plaintiff's Complaint fails to state a claim against Products upon which relief can be granted. 73. Plaintiff's claims against Products are barred by the doctrine of estoppel. 74. Plaintiff's claims against Products are barred by the doctrine of laches. 18 PHLDMS 1 3854293v.3 75. Plaintiff's claims against Products are barred by accord and satisfaction. 76. Plaintiff's claims against Products are barred by Plaintiff's failure to cover and/or 11 otherwise mitigate claimed damages. 77. Plaintiff's claims against Products are barred by the doctrine of justification. 78. Plaintiff's claims against Products are barred by the Statute of Frauds and the Parole Evidence Rule. 79. Plaintiff's claims against Products are barred by the applicable Statute of Limitations. 80. Plaintiff's claims against Products are barred by the doctrine of waiver. 81. Plaintiff's claims against Products are barred by the lack of consideration. 82. Plaintiff's claims are barred by the doctrine of unclean hands and Plaintiff's misconduct, actions, and inactions. 83. Plaintiff's claims are barred by its own contributory causal conduct. 84. If Plaintiff sustained any damages, such damages were not caused by Products but were caused by the acts or failures to act of Plaintiff, LFI and/or other parties over which Products has no control or right of control. 85. Products did not breach any duty owed, if any, to Plaintiff. 86. Plaintiff's claims are barred pursuant to the applicable terms of the Uniform Commercial Code. 87. Plaintiff's claims are barred pursuant to the doctrines of set-off and recoupment. 19 PHLDMS 1 3854293v.3 WHEREFORE, Defendant, Products, demands judgment in its favor and against Plaintiff together with counsel fees and costs of suit. WHITE AND WILLIAMS LLP By: A'4-? § S2?? 4SSteevOstrow, Esquire Gibbons, Esquire 1800 One Liberty Place Philadelphia, PA 19103 Telephone (215) 864-7000 Telecopier (215) 864-7123 20 PHLDMS 1 3854293v.3 VERIFICATION I, John D. Wilbur, hereby verify that I am the President of Defendant, Lenape Forged Products Corp., and, as such am authorized to make this Verification on its behalf and that the facts set forth in the foregoing Answer are true and correct to the best of my knowledge, information and belief. The undersigned further understands that false statements made herein are subject to the penalties set forth in 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities. rIn 6 u1WM'?L- John D. Wilbur Dated: January 21, 2008 PHLDMS 1 3877434v.1 CERTIFICATE OF SERVICE I, Joseph G. Gibbons, Esquire, hereby certify that I caused a true and correct copy of the foregoing Answer of Defendant, Lenape Forged Products, Corp. to Plaintiff s Amended Complaint to be served upon counsel for Plaintiff on January -?/ , 2008 via Federal Express, at the following address: David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 Dated: Z1 G d Josn'. Gibbons PHLDMS 13854293v.3 r__i `' ,_. ' _ -ri - r? _? ['? , r .; a>, _. -:: -.- =-? _ t _., ? i ? ? _,` FARLESThents\ 11093\l 1093.1 l.po l mpd David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 0744t CIVIL ACTION -LAW LENAPE FORGE, INC., and Ha LENAPE FORGED PRODUCTS CORPORATION, Defendants : JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Lenape Forged Products Corporation c/o Steven E. Ostrow, Esquire Joseph G. Gibbons, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE PLAINTIFF'S PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. MARTSON LAW OFFICES B ?• Y David A. Fitzsimons, E uire Seth T. Mosebey, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 8, 2008 Attorneys for Plaintiff FARLESUients\ 11093\ 11093.11 .po l.wpd David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07e24'T' CIVIL ACTION - LAW LENAPE FORGE, INC., and qA LENAPE FORGED PRODUCTS CORPORATION, Defendants JURY TRIAL DEMANDED PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE NEW MATTER OF DEFENDANT LENAPE FORGED PRODUCTS CORP. TO: LENAPE FORGED PRODUCTS CORP., Defendant, and its attorneys, Steven E. Ostrow, Esquire Joseph G. Gibbons, Esquire YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes the Plaintiff, Calabrese & Sons, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby submits as follows: 1. On April 5, 2007, Plaintiff filed an Amended Complaint against Lenape Forge, Inc. and Lenape Forged Products Corp. 2. Plaintiff's Amended Complaint contained counts against Defendant Lenape Forged Products Corp. ("Defendant Products") alleging breach of contract and fraud arising out of a transfer of assets from Lenape Forge, Inc. to Defendant Products. 3. On April 25, 2007, Defendant Products filed Preliminary Objections to Plaintiff's Amended Complaint. 4. By Order dated December 13, 2007, following argument on Defendant Products' Preliminary Objections, Defendant Products' Preliminary Objections were denied. 5. Defendant Products requested, and Plaintiff's counsel agreed, to two requests for extensions of time to file an Answer and New Matter due to the holiday season; an Answer and New Matter to Plaintiff's Amended Complaint was filed on or about January 21, 2008. 6. On or about January 25, 2008, Plaintiff wrote to counsel for Defendant Products requesting that Defendant Products withdraw and amend the portions of its New Matter requesting counsel fees because no basis for such relief was pleaded in the New Matter, and costs of suit. 7. Counsel for Plaintiff was advised that Defendant Products refused to withdraw its request for counsel fees and costs of suit because this relief is part and parcel of its threat to file in the future a claim under the "Dragonetti Act." MOTION TO STRIKE FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA R.C.P. 1028 (a)(2) 8. The averments of the preceding paragraphs are incorporated by reference as if fully set forth herein. 9. Pennsylvania Rule of Civil Procedure 1028(a)(2) states, in part, that preliminary objections may be filed by any party to any pleading for "failure of a pleading to conform to law or rule of court." 10. Defendant Products' New Matter fails to conform to law or rule of court and should be stricken. 11. Pursuant to Pennsylvania Rule of Civil Procedure 1019(a), "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." 12. The "Wherefore" clause of Defendant Products' New Matter contains a demand for "counsel fees and costs of suit." 13. To the extent that the New Matter "Wherefore" clauses seek counsel fees and costs of suit, there is absolutely not one fact pleaded or evidence offered supporting such an inclusion of relief within the "Wherefore" clause, and Plaintiff respectfully requests that elements of any "Wherefore" clause or claim for recovery of fees and costs in the New Matter not consistent with the defense it supports be stricken for failure to conform to law or rule of court. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfully requests that this Honorable Court strike Defendant Products' claim for counsel fees and costs of suit contained in its New Matter for failure to conform to law or rule of court pursuant to Pa.R.C.P. 1028(a)(2). MOTION TO STRIKE FOR LEGAL INSUFFICIENCY (DEMURRER) PURSUANT TO Pa.R.C.P.1028(a)(4) 14. The averments of the preceding paragraphs are incorporated by reference as if fully set forth herein. 15. Pennsylvania Rule of Civil Procedure 1028(a)(4) states that preliminary objections may be filed by any party to any pleading due to "legal insufficiency of a pleading (demurrer)." 16. No element of Defendant Products' New Matter avers any fact supporting a conclusion or request for counsel fees and costs of suit, and Plaintiff respectfully submits that to the extent the New Matter contains a prayer for counsel fees and costs of suit, that claim be dismissed with prejudice. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfully requests that this Honorable Court strike Defendant Products' request for counsel fees and costs of suit for legal insufficiency (demurrer) pursuant to Pa.R.C.P. 1028(a)(4). MARTSON LAW OFFICES By J David A. Fitzsimons, E quire Seth T. Mosebey, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 8, 2008 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Plaintiff's Preliminary Objections to the New Matter of Defendant was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven E. Ostrow, Esquire Joseph G. Gibbons, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 MARTSON LAW OFFICES is D. Eckenroad en East High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 8, 2008 C`) n.a c,- ? 0 c r ci 3;) cD /V rTi 1 NOTICE TO PLEAD WHITE AND WILLIAMS LLP BY: Steven E. Ostrow/Joseph G. Gibbons Identification No(s). 50568/60378 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7074 TO: Plaintiff You are hereby notified to file a written response to the following Answer and New Matter within twenty (20) days of service hereof or a judgment may be entered against you. (--?w Atto e for Defendant, Lenape Forged Products Co Attorneys for Defendant, Lenape Forged Products Corp. CALABRESE & SONS, INC. CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, : V. ; NO. 07-428 LENAPE FORGE, INC., and ; CIVIL ACTION - LAW LENAPE FORGED PRODUCTS CORPORATION Defendant. AMENDED ANSWER AND NEW MATTER OF DEFENDANT, LENAPE FORGED PRODUCTS CORP., TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Lenape Forged Products Corp. ("Products"), through its counsel, White and Williams LLP, hereby asserts the following Amended Answer and New Matter to Plaintiff's Amended Complaint and in support thereof avers as follows: PHLDMS 1 4082021v.2 1. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 1 and therefore said allegations, to the extent material, are denied. 2. Denied. Paragraph 2 is directed at parties other than Products and therefore no response is required. To the extent a response is required, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 2 and therefore, to the extent material, said allegations are denied. Upon information and belief, Defendant, Lenape Forge, Inc. ("LFI") is no longer in business. 3. Admitted. 4. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 4 and therefore, to the extent material, said allegations are denied. 5. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 5 and therefore, to the extent material, said allegations are denied. 6. Admitted in part, denied in part. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations relating to defendant, LFI, and therefore, to the extent material, said allegations are denied. It is admitted that Products is engaged in the business of producing raw forgings. It is expressly denied that Products ever produced any raw forgings for plaintiff, Calabrese and Sons, Inc. ("Calabrese" or "Plaintiff') or that Products ever entered into any business transaction with Calabrese. 2 PHLDMS 1 4082021v.2 7. Admitted in part, denied in part. It is admitted that Products has obtained authorization from the Secretary of State of the Commonwealth of Pennsylvania to conduct business operations in the Commonwealth. Products, however, lacks sufficient knowledge with which to form a belief as to the truth of the assertions related to defendant, LFI, and therefore, to the extent material, said allegations are denied. 8. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 8 and therefore, to the extent material, said allegations are denied. 9. Denied. Paragraph 9 consists of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, at no time has Products conducted any business transactions with Calabrese in Cumberland County or elsewhere. By way of further response, at no time has Products conducted any business operation in Cumberland County or with any parties located in Cumberland County, Pennsylvania. 10. Denied. Paragraph 10 contains no allegation with respect to or directed at Products and therefore no response is required. To the extent that any allegation in paragraph 10 is deemed to relate to Products, Products lacks sufficient information with which to form a belief as to the truth of any allegations related to any alleged contract between Calabrese and LFI and therefore, to the extent material, said allegations are denied. 11. Denied. Paragraph 11 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph I 1 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 3 PHLDMS 1 4082021v.2 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 12. Denied. Paragraph 12 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 12 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 13. Denied. Paragraph 13 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 13 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 14. Denied. Paragraph 14 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 14 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 4 PHLDMS 1408202 t v.2 15. Denied. Paragraph 15 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 15 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 16. Denied. Paragraph 16 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 16 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 17. Denied. Exhibit 6 to Plaintiff s Complaint is a written document the terms of which speak for themselves and Plaintiff s characterization thereof is expressly denied. 18. Denied. At the time of the transaction alleged in paragraph 18, Products did not exist. Products was not formed until December 15, 2005; conducted no business until January 1, 2006; and lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 18. Accordingly, said allegations are denied. 19. Denied. The allegations contained in paragraph 19 are directed at parties other than Products and therefore no response is required. By way of further response but not in derogation of the foregoing, Products lacks sufficient knowledge with which to form a belief as 5 P14LDMS 1 4082021v.2 to the truth of the allegations contained in paragraph 19 therefore, to the extent material, said allegations are denied. 20. Denied. Upon information and belief, Calabrese issued the purchase order in question to LFI. At the time of the transaction or occurrence alleged in paragraph 20, Products did not yet exist. Products was not formed until December 15, 2005 and lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 20 therefore, to the extent material, said allegations are denied. 21. Admitted in part, denied in part. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 21 which are directed at LFI and therefore, to the extent material, said allegations are denied. It is admitted that Calabrese made demand on Products for payment of amounts which Calabrese allegedly paid to LFI and that Products refused to honor such demand. To the extent the allegations in paragraph 21 infer that Products has any obligation to Calabrese related to the alleged contract between Calabrese and LFI, said allegation is denied. 22. Denied. On October 11, 2005, Products did not yet exist. Products was not formed until December 15, 2005. Products neither forwarded the alleged communication to Calabrese nor authorized anyone to forward such alleged communication on its behalf. 23. Products incorporates by reference paragraph 22 of this Answer as fully as though set forth herein at length. By way of further response, but not in derogation of the foregoing, Exhibit 9 to the Complaint is a written document the terms of which speak for themselves and Plaintiff's characterization thereof is expressly denied. 6 PHLDMS 1 4082021v.2 24. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 24 therefore, to the extent material, said allegations are denied. 25. Admitted in part, denied in part. It is admitted that David Hershbell is an employee of Products. Upon information and belief, Mr. Hershbell was previously employed by LFI and, on behalf of LFI, issued the revised quote attached to the Complaint as Exhibit 8. To the extent that paragraph 25 implies any action or inaction of Mr. Hershbell while employed by LFI or any other entity could be attributed to or binding on Products, such allegation is expressly denied. 26. Admitted in part, denied in part. Upon information and belief, Mr. Hershbell advised Calabrese that the quote needed to be revised. Products lacks sufficient knowledge regarding the state of mind of Mr. Calabrese and therefore the allegations related to his reason for agreeing to the revisions, to the extent material, are denied. 27. Admitted upon information and belief. 28. Denied. Upon information and belief, Mr. Calabrese was informed more than once between July 15, 2005 and December 21, 2005 that LFI had ceased all business operations. 29. Admitted in part, denied in part. Upon information and belief, Mr. Hershbell was aware of the financial difficulties of LFI in June 2005 but was not aware that any diversion of funds had occurred. 30. Admitted upon information and belief. 31. Denied. Upon information and belief, Mr. Calabrese was informed more than once between July 15, 2005 and December 21, 2005 that LFI had ceased all business operations. 7 PHLDMS 1 4082021v.2 32. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 32 related to LFI therefore, to the extent material, said allegations are denied. It is expressly denied that Products and LFI share any common employees, directors, officers or owners in any way. Upon information and belief, LFI ceased all business operations on July 15, 2005. Afterward, Products hired one or more former employees of LFI. At no time, however, was any person employed by both LFI and Products simultaneously and as set forth more fully above, Products was not and is not a party to the alleged contract between Calabrese and LFI as Products did not come into existence until after that alleged contract was purportedly breached by LFI. Neither Mr. Hershbell nor Mr. Stolz was employed by Products on December 21, 2005. By way of further response, Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations of damages which were allegedly incurred by Calabrese as a result of LFI's alleged breach of the alleged contract. 33. Denied. Neither Mr. Hershbell nor Mr. Stolz were employed by Products on December 21, 2005. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiffs attorney on December 21, 2005 not 2006. Upon information and belief, Mr. Hershbell and Mr. Stolz agreed to contact Ellwood Quality Steel and obtain a price for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell and Mr. Stolz contacted Ellwood Quality Steel and obtained a price quote for raw materials for a potential new contract. 34. Denied. Paragraph 34 consists of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, 8 PHLDMS l 4082021v.2 Neither Mr. Hershbell and Mr. Stolz was employed by Products on December 21, 2005. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 34 therefore, to the extent material, said allegations are denied. 35. Admitted in part, denied in part. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff's attorney on December 21, 2005 not 2006. On December 21, 2005 neither Mr. Hershbell nor Mr. Stolz were employed by Products. Upon information and belief Mr. Calabrese and Plaintiff's attorney communicated the message set forth in paragraph 35 at the December 21, 2005 meeting. Upon information and belief, Mr. Calabrese was told that LFI, the party responsible for the contract, had ceased operations on July 15, 2005. 36. Denied. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff's attorney on December 21, 2005 not 2006. Neither Mr. Hershbell nor Mr. Stolz was employed by Products on December 21, 2005. Upon information and belief, Mr. Hershbell and Mr. Stolz agreed to contact Ellwood Quality Steel and obtain a price for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell and Mr. Stolz contacted Ellwood Quality Steel and obtained a price quote for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell determined that a new contract to produce the billet requested by Plaintiff was not feasible. To the extent that paragraph 36 infers that Mr. Hershbell and/or Mr. Stolz were employees or representative of Products on December 21, 2005 9 PHLDMS 1 408202 t v.2 or that any representative of Products could obtain billet from Ellwood Quality Steel' for which Ellwood Quality Steel had not received payment, said allegation is expressly denied. 37. Denied. Upon information and belief, no lawsuit was discussed at the December 21, 2005 meeting. To the extent paragraph 37 infers that Mr. Hershbell and Mr. Stolz were employees or representatives of Products on December 21, 2005, said allegation is denied. 38. Denied. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff's attorney on December 21, 2005 not 2006. Neither Mr. Hershbell nor Mr. Stolz were employed by Products on December 21, 2005. Upon information and belief, Mr. Hershbell and Mr. Stolz agreed to contact Ellwood Quality Steel and obtain a price for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell and Mr. Stolz contacted Ellwood Quality Steel and obtained a price quote for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell determined that a new contract to produce the billet requested by Plaintiff was not feasible. To the extent that paragraph 36 infers that Mr. Hershbell and/or Mr. Stolz were employees or representatives of Products on December 21, 2005 or that any representative of Products could obtain billet from Ellwood Quality Steel for which Ellwood Quality Steel had not received payment, said allegation is expressly denied. 39. Admitted. 40. Denied. It is expressly denied that any amounts allegedly forwarded by Calabrese to LFI benefited Products in any way. Products was formed on December 15, 2005 Products purchased the real property previously owned by LFI at a regularly conducted sheriff sale after a 1) The Complaint contains a number of references to Ellwood City Steel in addition to Ellwood Quality Steel. Products believes that Calabrese intended for all such references to refer to Ellwood Quality Steel and has responded accordingly. In the event this assumption is incorrect, to the extent material, Products reserves the right to amend this Amended Answer and New Matter to refer to the correct entity. 10 PHLDMS 14082021 v.2 foreclosure by one of LFI's secured creditors. Products purchased certain personal property of LFI pursuant to a private UCC sale conducted by another foreclosing creditor of LFI. To the extent that paragraph 40 alleges that Products had any duty to Calabrese, said allegation is denied. Moreover, neither Mr. Hershbell nor Mr. Stolz was employed by Products at the time of the meeting alleged in the Complaint. Products lacks sufficient knowledge with which to form a belief as to the truth of the remaining allegations contained in paragraph 40 therefore, to the extent material, said allegations are denied. 41. Products incorporates by reference paragraph 33 of this Answer and New Matter as fully as though set forth herein at length. 42. Denied. It is denied that any employee of Products made any representation to Calabrese related to this matter. Products lacks sufficient knowledge with which to form a belief as to the truth of the remaining allegations contained in paragraph 42 therefore, to the extent material, said allegations are denied. 43. Denied. To the extent that paragraph 43 infers that Products had any obligation whatsoever to assist Calabrese in obtaining billet said allegation is expressly denied. To the extent paragraph 43 alleges that no one on behalf of Products contacted Ellwood Quality Steel in an attempt to obtain billet for Calabrese, said allegation is admitted. To the extent paragraph 43 alleges that no one from Products submitted a proposal to Calabrese for obtaining billet from Ellwood Quality Steel, said allegation is admitted. Upon information and belief, any attempt to contact Ellwood Quality Steel to obtain billet for which Ellwood Quality Steel had not received payment would have been futile. As a result, Calabrese was not and could not have been harmed as a result of any inaction by Products in this regard. 11 PHLDMS 1 4082021v.2 44. Denied. Paragraph 44 consists entirely of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, at the time alleged representations referred to in the Complaint were made, neither Mr. Hershbell nor Mr. Stolz was employed by Products. Moreover, based upon the allegations contained in the Complaint, any damages sustained by Calabrese occurred prior to the date upon which Products came into existence. Accordingly, it is factually impossible for Calabrese to have sustained damages resulting from any alleged representation or misrepresentation of Products. Moreover, Products neither forwarded the "mailings" referred to in paragraph 44 to Calabrese nor authorized anyone to forward such alleged "mailings" on its behalf. COUNT I - BREACH OF CONTRACT Calabrese and Sons, Inc. v. Lenane Forge, Inc. 45. Products incorporates by reference paragraph 1 through 44 of this Amended Answer and New Matter as fully as though each were set forth herein at length. 46. The allegations contained in paragraph 46 are directed at parties other than Products and therefore no response is required. WHEREFORE, Defendant, Products demands judgment in its favor and against Plaintiff together with attorneys' fees and costs of suit. COUNT II - BREACH OF CONTRACT Calabrese and Sons, Inc. v. Lenane Forged Products Corporation 47. Products incorporates by reference paragraph 1 through 46 of this Amended Answer and New Matter as fully as though each were set forth herein at length. 12 PHLDMS 1 4082021v.2 48. Denied. At no time did LFI transfer any assets to Products. As set forth more fully above, Products purchased certain real property previously owned by LFI at a regularly conducted sheriff sale in a foreclosure action brought by a secured creditor of LFI. Products purchased certain personal property of LFI at a private UCC sale conducted by a different secured creditor of LFI. At no time did Products obtain any assets directly from LFI. To the extent that paragraph 48 alleges that Products' purchase of assets from any party violated the Pennsylvania Uniform Transfer Act or the Pennsylvania Uniform Fraudulent Transfers Act (the "PAUFTA"), said allegation consists of conclusions of law which are deemed denied. To the extent Products' purchase of the assets previously owned by LFI may be deemed a transfer, Products lacks sufficient knowledge with which to form a belief as to the intent of LFI. Therefore, to the extent material, such allegations are denied. 49. Denied. As set forth more fully above, Products neither entered into any contract with Calabrese nor assumed any other party's obligations under a contract with Calabrese. Based upon the allegations contained in the Complaint, if proven, LFI entered into and breached its contract with Calabrese long before Products ever came into existence. WHEREFORE, Products demands judgment in its favor and against Calabrese together with attorneys' fees and costs of suit. COUNT III - FRAUD Calabrese and Sons, Inc. v. Lenaue Foree. Inc. 50. Products incorporates by reference paragraph 1 through 49 of this Amended Answer and New Matter as fully as though each were set forth herein at length. 13 PHLDMS 1 408202 t v.2 51. Denied. The allegations set forth in paragraph 51 are directed at parties other than Products and therefore no response is required. To the extent a response is deemed required, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 51 therefore, to the extent material, such allegations are denied. 52. Denied. The allegations set forth in paragraph 52 are directed at parties other than Products and therefore no response is required. To the extent a response is deemed required, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 52 therefore, to the extent material, such allegations are denied. 53. Denied. The allegations contained in paragraph 53 are directed at parties other than Products and therefore no response is required. To the extent a response is required, the allegations contained in paragraph 53 consist entirely of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 53 therefore, to the extent material, such allegations are denied. WHEREFORE, Products demands judgment in its favor and against Calabrese together with attorneys' fees and costs of suit. COUNT IV - FRAUD Calabrese and Sons, Inc. v. Lenape Forged Products Corporation 54. Products incorporates by reference paragraph 1 through 53 of this Amended Answer and New Matter as fully as though each were set forth herein at length. 55. Denied. Paragraph 55 consists of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, as 14 PHLDMS 1 4082021v.2 set forth more fully above, LFI never transferred any assets to Products. Products purchased certain real property previously owned by LFI at the regularly scheduled Sheriff's sale conducted in a foreclosure proceedings brought by a secured lender of LFI. Products purchased other assets previously owned by LFI at a private UCC sale conducted by another secured creditor of LFI. Both of these transactions arose out of good faith, arms-length negotiations between Products and the foreclosing creditors of LFI. 56. Denied. As set forth more fully above, Products purchased certain assets that were previously owned by LFI in two separate transactions. Certain real property previously owned by LFI was purchased at the regularly conducted Sheriff's sale pursuant to a judgment in foreclosure obtained by a secured creditor of LFI. Certain personal property previously owned by LFI was purchased pursuant to a good faith, arms-length private UCC sale conducted by the foreclosing creditor which had a lien on the personal property of LFI. It is admitted that Products has taken the position that it has no obligations to Calabrese or any other creditor of LFI arising out of transactions between those creditors and LFI. To the extent that paragraph 56 infers that Products has any liability arising out of any obligation of LFI to any creditor of LFI, said allegation is expressly denied. 57. Admitted in part, denied in part. It is admitted that certain employees of Products have informed certain employees or representative of Calabrese that Products has no obligation to Calabrese arising out of the transactions upon which this action are based. To the extent that paragraph 57 infers that any current or former officer, director, or shareholder of LFI is or ever was an officer, director, or shareholder of Products, said allegation is expressly denied. It is admitted that Products hired one or more employees of LFI after LFI ceased operation. To the 15 PHLDMS 1408202 t v.2 extent that paragraph 56 infers that Products has any liability arising out of any obligation of LFI to any creditor of LFI, said allegation is expressly denied. 58. Denied. To the extent that the allegations contained in paragraph 58 consist of conclusions of law, said allegations are deemed denied without further response. By way of further response, but not in derogation of the foregoing, as a matter of law, Products has no obligation whatsoever to Calabrese or any other creditor of LFI by virtue of its purchase of assets formerly owned by LFI from the foreclosing creditors of LFI. Moreover, Products neither entered into any contract with Calabrese nor received any of the funds that Calabrese allegedly forwarded to LFI pursuant to the alleged contract between those two entities. The assets which Products purchased were separated from the liabilities of LFI by operation of law at the time of the Sheriff's Sale of the real property and the UCC sale of the personal property. 59. Denied. No response is required to those allegations contained in paragraph 59 which are directed at parties other than Products. To the extent material, however, such allegations are denied. It is expressly denied that Products took any action in connection with its purchase of certain assets of LFI from the foreclosing creditors of LFI with the intent to cause, or with knowledge that such action would likely cause, damage, embarrassment, or loss of any kind to Calabrese or any other creditor of LFI. 60. Denied. Paragraph 60 consists entirely of conclusions of law which are deemed denied without further response. WHEREFORE, Products demands judgment in its favor and against Calabrese together with attorneys' fees and costs of suit. 16 PHLDMS 1 4082021v.2 NEW MATTER 61. Products incorporates by reference paragraph 1 through 60 of this Amended Answer and New Matter as fully as though each were set forth herein at length. 62. Products is a Delaware corporation which was formed on December 15, 2005 and which purchased certain assets of LFI from certain foreclosing creditors of LFI. 63. Although Products occupies the facility formerly operated by LFI, the two corporations are distinct corporate entities. 64. Products neither owns nor controls LFI and none of the owners or officers of LFI owns or controls Products 65. Products purchased the foreclosed assets on January 1, 2006 more than eight (8) months after Calabrese allegedly issued the purchase order to LFI which is the subject matter of this action and more than six (6) months after Calabrese allegedly forwarded payment to LFI for the billets. 66. Because Products is not a party to any contract with Calabrese and did not assume or guaranty any obligations of any party to such alleged contract, it is not liable to Calabrese for breach of any contract which Calabrese entered into with LFI or any other party. 67. Fatal to Calabrese's claim for fraud is the fact that Calabrese does not allege, nor can it allege, that Products made any representation whatsoever to Calabrese prior to September 28, 2005 the date on which, Calabrese contends, it allegedly suffered damages as the result of LFI's failure to deliver the billets pursuant to its alleged contract with Calabrese. 68. Although the Complaint alleges that certain employees of Products made certain representations to Calabrese, the alleged representations were apparently made at a meeting that 17 PHLDMS 1 4082021v.2 took place on or about December 21, 2005 and not December 21, 2006, as alleged. Moreover, those representations and were allegedly made by persons who were not, at the time, employees, representatives or agents of Products. Finally, such alleged representations were allegedly made after the alleged breach of contract by LFI and any resultant damage to Calabrese and Calabrese has not and cannot allege that it suffered any damages as a proximate result of such alleged representations. 69. The Amended Complaint does not and, in fact, Calabrese cannot, allege facts which, if proven, would establish a violation of the PAUFTA. 70. At all times material hereto, the amount which LFI owed to the secured creditor which sold the personal property to Products exceeded the value of LFI's personal property. Accordingly, no transfer occurred under the PAUFTA. See 12 Pa.C.S.A. § 5101(b) (property of debtor encumbered by a valid lean does not constitute an "asset" when determining if a transfer has occurred). 71. Moreover, pursuant to the express terms of the PAUFTA, the sale of those assets to Products was not fraudulent. See 12 Pa.C.S.A. § 5108(e) (transfer resulting from enforcement of security interest in compliance with Article 9 of the UCC is deemed not fraudulent). 72. In addition, a non-collusive, procedurally proper Sheriff Sale may not be invalidated as a fraudulent conveyance. In re Sheilds, 148 B.R. 783 (Bankr. E.D. Pa. 1993); see also U.S. v. Gleneagles Inv. Co. Inc., 571 F.Supp. 935 (M.D. Pa. 1983), aff'd. 803 F.2d 1288, cert. den. 107 S. Ct. 3229, 483 U.S. 1005 (actions of mortgagee and prospective purchasers of mortgages in formulating strategy and acting to obtain subject land at tax sale free and clear of 18 PHLDMS 1 4082021v.2 claims of other creditors, did not constitute fraudulent conveyance where evidence did not establish any conspiracy involving mortgagor). 73. On April 3, 2007, prior to the date on which the Amended Complaint was filed, counsel for Products forwarded to counsel for Calabrese via telecopier, copies of a Sheriff's Deed and a Private Sale Agreement between Products and one of LFI's secured creditors which demonstrate that Products purchased certain assets of LFI from two separate foreclosing creditors pursuant to non-collusive arms length transactions of which LFI was not a party. A true and correct copy of Products' letter dated April 3, 2007 with confirmation of transmission but without exhibits is attached hereto as Exhibit "A." 74. By letter dated April 24, 2007, counsel for Products wrote to counsel for Calabrese and, referencing the April 3, 2007 letter, demanded that Calabrese withdraw the Amended Complaint pursuant to Pa. R. Civ. P. § 1023.2(b) and informing counsel of Products' intent to seek sanctions if the Amended Complaint was not withdrawn. A true and correct copy of counsel's April 24, 2007 letter, along with confirmation of transmission is attached hereto as Exhibit "B." 75. The conclusory allegations of intent contained in paragraphs 48 and 55 of the Amended Complaint, are contrary to the documentation provided to Calabrese by Products which established the arms length nature of the transactions between Products and LFI's secured creditors and the lack of any legal or factual basis to support the allegations contained in the Amended Complaint. 19 PHLDMS 1 4082021v.2 76. Where, as here, a plaintiff is in possession of facts which conclusively refute the factual allegations necessary to support a cause of action, the plaintiff cannot completely ignore those facts in preparing its pleadings. See Pa. R. Civ. P. 1023.1(c). 77. Because Calabrese and its attorneys were in possession of documents that established the lack of a factual or legal basis for the claims asserted against Products in the Amended Complaint prior to the date on which the Amended Complaint was filed, their conduct in filing the Amended Complaint is sanctionable. See Pa. R. Civ. 1023.1(c). Among the sanctions appropriate under the circumstances is an award of attorneys' fees and other expenses incurred as a result of Calabrese's violation of the Rule. See Pa. R. Civ. 1023.4(a)(2)(iii). 78. In addition to the foregoing, the conduct of Calabrese and its counsel in refusing to withdraw this action and in filing the Amended Complaint after receiving the materials identified above, constitutes "dilatory, obdurate or vexatious conduct" and/or was "arbitrary, vexatious or in bad faith" justifying the imposition of sanctions under 42 Pa. C.S.A. § 2503(7) and/or 42 Pa. C.S.A. § 2503(9). 79. Plaintiff's Complaint fails to state a claim against Products upon which relief can be granted. 80. Plaintiff's claims against Products are barred by the doctrine of estoppel. 81. Plaintiff's claims against Products are barred by the doctrine of laches. 82. Plaintiff's claims against Products are barred by accord and satisfaction. 83. Plaintiff's claims against Products are barred by Plaintiff s failure to cover and/or otherwise mitigate claimed damages. 84. Plaintiff's claims against Products are barred by the doctrine of justification. 20 PHLDMS 14082021 v.2 85. Plaintiff's claims against Products are barred by the Statute of Frauds and the Parole Evidence Rule. 86. Plaintiff's claims against Products are barred by the applicable Statute of Limitations. 87. Plaintiff's claims against Products are barred by the doctrine of waiver. 88. Plaintiff's claims against Products are barred by the lack of consideration. 89. Plaintiff's claims are barred by the doctrine of unclean hands and Plaintiff's misconduct, actions, and inactions. 90. Plaintiff's claims are barred by its own contributory causal conduct. 91. If Plaintiff sustained any damages, such damages were not caused by Products but were caused by the acts or failures to act of Plaintiff, LFI and/or other parties over which Products has no control or right of control. 92. Products did not breach any duty owed, if any, to Plaintiff. 93. Plaintiff's claims are barred pursuant to the applicable terms of the Uniform Commercial Code. 94. Plaintiff s claims are barred pursuant to the doctrines of set-off and recoupment. 21 PHLDMS 1 4082021v.2 WHEREFORE, Defendant, Products, demands judgment in its favor and against Plaintiff together with counsel fees and costs of suit. WHITE AND WILLIAMS LLP St Vtp)h E. Ostrow, Esquire Jo G. Gibbons, Esquire 1800 One Liberty Place Philadelphia, PA 19103 Telephone (215) 864-7000 Telecopier (215) 864-7123 22 PHLDMS 1 4082021v.2 ?x??br?'? White and Williams LLP Wv 1800 One Liberty Place Philadelphia, PA 19103-7395 Phone: 215.864.7000 Fax: 215.864.7123 April 3, 2007 VIA FACSIMILE (717) 243-1850 David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 Joseph G. Gibbons Counsel Direct Dial: 215.864.7074 Direct Fax: 215.789.7614 gibbonsj@whiteandwilliams.com RE: Calabrese & Sons, Inc. v. Lenape Forte Inc. and Lenave Forged Products Corp., et al. Dear Mr. Fitzsimons: As you know, this law firm represents Lenape Forged Products Corp. only, in the above- referenced matter (the "Action"). On Monday, March 26, 2007, we received a copy of Plaintiff's Notice to Take Default Judgment against Defendant, Lenape Forge Inc., in the Action. An examination of both the cover letter and the Certificate of Service affixed to the Notice of Default indicates that Plaintiff attempted to make service on Lenape Forge, Inc., at 1334 Lenape Road, West Chester, PA (the "Premises"). As my colleague, Steven Ostrow advised you, and as more fully set forth in its Preliminary Objections to the Complaint in the Action, our client, Lenape Forged Products Corp. owns the real and personal property located at the Premises as a result of its purchase of said property pursuant to execution sales conducted by the secured creditors of Lenape Forge Inc. copies of the Sheriff's deed and private sale agreement between Merrill Lynch Business Financial Services, Inc. are enclosed for your reference. Allentown, PA • Berwyn, PA • Cherry Hill, NJ New York, NY • Paramus, NJ • Pittsburgh, PA • Wilmington, DE PHLDMS 1 3090580v.2 April 3, 2007 Page 2 Based upon the foregoing, both the Premises and all of the assets contained on the Premises are owned by our client Lenape Forged Products Corp. and not Lenape Forge, Inc. Accordingly, please be advised that we will consider any attempt to levy upon the Premises or any assets contained thereon in satisfaction of any judgment you obtain against Lenape Forge, Inc. an abuse of process for which we will seek appropriate sanctions. Please be guided accordingly. Very truly yours, WHITE AND WILLIAMS LLP By: *sh Gibbons JGG:da Enclosure cc: Steven E. Ostrow, Esquire Robert A. Kargen, Esquire PHLDMS 1 3090580v.2 ?Y'YYtW 1' xT Y'Yxx ? YX! ? Y XX ? tx (.UF1 ?I-P 3 2, . 4 9 wt,- ?K rr?;, W:-_,, -nos 5 i1c,;6 'r-774 32#3#17 .243' 135. <6 2" :9 ^4S2i#34 . -724'.1 White and Williams LLP NF 1800 One Liberty Place Websire: www, tvhiieandwithalns.com Philadelphia, P,4 19103-'395 Phone: ?15.864.7000 Fax. 215,864,7123 Date: April 3, 2007 FAX COVER LETTER IMPORTANT! If an intemationat number. please include the international access code ;Ul 1), country code (e.g., `44" for United Kingdom), and City Cod: j 4aplicabl a (e. fcr London, °2" for Brussels. t etc.) TO COMPA 4Y PHONE NO. FA NO. David A, Fitzsimons, Es uire ; G N i 7) 243-3341 ; (717) 243-1350 F)-o))? Joseph G. Gibbons Re. Cominents: Attorney I.D. #: 2262 File ,# 0030432-00003 Direct Dial: 215,864.7074 Direct Fax. 215.789.7614 Fite Name: CALABRESE & SONS, INC. 3 06 I IRS Circular 230 Notice: To ensure complianccwllh crtaitregulations f promulgated by the U.S. i internal Revenue Service, we inform you that Any €oiloFttl tax advice contained in this communication ' i )including any attachments) is not intended or writtCfl tp be`used, and cannot be used, by any taxpayer for ' the. purpose of (1) avoiding tax-related penalties undue ire U.S. Intemal Revenue Code, or (2) promoting, marketing or recommending to another party any tax-related matters addressed herein, unless expressly 1 stated otherwise This facsimile contains confidential information Intended only for the use of the addresseets) named above and may contain information that Is legally privileged If you are not the addressee. or the person responsible for delivering it to the addressee, you are hereby notified that { reading, disseminating or copying this facsimile is strictly prohibited. If you have received this facsirrule by i mistake; please irnmediatel•1 notify us by telephone and return the original message to us at the address above via YPostal Service (we will reimburse postage). Thank you. ._ „?, I Vrm Li ^n ,1-t __ _?_ . , . . . ?x?,,r?d`?' White and Williams LLP NW 1800 One Liberty Place Philadelphia, PA 19103-7395 Phone: 215.864.7000 Fax: 215.864.7123 April 24, 2007 David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 Joseph G. Gibbons Counsel Direct Dial: 215.864.7074 Direct Fax: 215.789.7614 gibbonsj@whiteandwilliams. com RE: Calabrese & Sons, Inc. v. Lenape Forged Products Corp., et al. Dear Mr. Fitzsimons: As you know, we represent the defendant, Lenape Forged Products Corp. ("Products") in the above-referenced action (the "Action"). On April 3, 2007, we forwarded to you copies of (i) the Sheriff's Deed in the mortgage foreclosure action styled Business Loan Center LLC v. Lenape Dynamic, et al., Chester County, CCP Term 2005, No. 9898 evidencing the purchase by Products of the real property located at 1334 Lenape Road, West Chester, Pennsylvania and (ii) the Private Sale Agreement between Products and Merrill Lynch Business Financial Services, Inc. ("Merrill Lynch") conveying certain personal property previously owned by Lenape Forge Inc. to Products pursuant to Merrill Lynch's powers as a secured creditor under Article 9 of the Uniform Commercial Code (the "UCC"). As the above-referenced documents indicate, the assets previously owned by Lenape Forge Inc. were obtained by Products through an arms-length sales transaction with Merrill Lynch and a procedurally proper Sheriff Sale conducted to satisfy the foreclosure judgment held by the Business Loan Center. Although Products agreed to hire certain lower level employees of Lenape Forge Inc., as set forth in the certification of John Wilbur which is attached to the Preliminary Objections to the original Complaint in the Action, no officer, director or shareholder of Lenape Forge Inc. has any interest whatsoever in Products, either as an owner, or employee. Accordingly, there exists no legal basis for your client's insistence that the purchase of Lenape Forge, Inc.'s assets by Products was an improper attempt to avoid the intent of some successor liability doctrine or was otherwise fraudulent. Pennsylvania Rules of Civil Procedure, Rule 1023.1(c) provides: Allentown, PA - Berwyn, PA - Cherry Hill, NJ New York, NY - Paramus, NJ - Pittsburgh, PA - Wilmington, DE PHLDMS 1 3090580v.2 April 24, 2007 Page 2 The signature of any attorney or pro se party constitutes a certificate that the signatory has read the pleading, motion, or other paper. By signing, filing, serving submitting, or later advocating such a document, the attorney or pro se party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry, reasonable under the circumstances, it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, 2. the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law, 3. the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and 4. the denials of factual allegations are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Based upon the documents which were forwarded to you via telecopier on May 3, 2006 and the Certification attached to Products' Preliminary Objections to Plaintiff's Complaint in this case, it is clear that Calabrese & Sons, Inc. does not possess a cause of action against Products for breach of contract or fraud. It is abundantly clear that, while Calabrese & Sons may have entered into a contract with Lenape Forge, Inc., Products was not a party to any such contract. As such, Calabrese & Sons has no cause of action against Products for breach of the alleged contract. With respect to Count IV of the Amended Complaint filed by Calabrese & Sons, the uncontested facts related to this dispute establish that Calabrese & Sons has no claim for fraud against Products whether such claim be for common law fraud or constructive fraud under the Pennsylvania Uniform Fraudulent Transfer Act (the "Act"). Under the Act, a transfer of property that is subject to a lien does not constitute a transfer of an "asset" to the extent of such lien. Therefore, the transfer of property, that is encumbered by a valid security interest that exceeds the value of the property, does not constitute a "transfer" under the PAUFTA. In re Blatstein, 226 B.R. 140 (E.D. Pa. 1998). In addition, a properly conducted, non-collusive Sheriff PHLDMS 1 3090580v.2 April 24, 2007 Page 3 Sale cannot be challenged as "fraudulent" under the Act. In re Sheilds, 148 B.R. 783 (Bankr. E.D. Pa. 1993). Because (i) Products entered into no contract with your client and (ii) any assets of Lenape Forge, Inc. that were obtained by Products, were obtained by properly conducted sales under the UCC and Pennsylvania real estate foreclosure procedures, there is no basis in law or fact to support the claims that your client's have asserted against Products in the Action. Notice is hereby tendered pursuant to Pa. R. Civ. P. 1023.2(b) that, unless your client withdraws the Amended Complaint within twenty-eight (28) days of this Notice, Products intends to seek appropriate sanctions pursuant to Pa. R. Civ. P. 1023.1(d) including, but not limited to, an award of attorney's fees incurred by Lenape Forged Products Corp. as a result of your client's non-compliance with Rule 1023.1. In addition to the above, we believe that once you received the materials on April 3, 2007, Calebrese & Sons, Inc. lacked probable cause for continuation of the Action as required by the Pennsylvania "Dragonetti Act." 42 Pa. C.S.A. § 8351 et seq. Accordingly, notice is hereby tendered that once the Action is terminated in its favor, Products intends to seek sanctions against all appropriate parties under the "Dragonetti Act." Please contact me if you would like to discuss the above. Very truly yours, WHITE AND WILLIAMS LLP By G. ibbons v' JGG:da cc: Steven E. Ostrow, Esquire Robert A. Kargen, Esquire PHLDMS 1 3090580v.2 TRANSMISSION RE?ORT (TUE) APR 24 2007 1711 GWHITE AND WILLIAMS LLP DOCUMENT # TIME STORED TIME SENT DURATION PAGE(S) MODE RESULT 4260484-173 4.24 17:08 4. 24 17:06 1' 48" 4 ECM OK DESTINATION DST.TEL # 132#3#171724-111.850 12262#30432#3#17172431850 qw, White and Williams LLP W 1800 One Liberty Place Website: tivww.whiteandwilliams.com Philadelphia, PA 19103-7395 Phone: 215.864.7000 Fax. 215.864.7123 Date: April 24, 2001 FAX COVER LETTER IMPORTANT! If an international number, please include the international access code (011), country code (c,g., "44" for United Kingdom), and City Code, jfaliQficilb)e (e.g., "I" for London "2" for Brussels, etc.) TO COMPANY PHONE NO. FAX NO. David A. Fitzsimons, Esquire__ (717) 243-3341 (717) 243-1850 From Joseph G. Gibbons Direct Dial: 215.864.7014 Re: Direct Fax: 215.789.7614 Comments: Attorney I.D. #: 2262 File 4: 0030432-00003 File Name: CALABRESE & SONS, INC. IRS Circular 230 Notice; To ensure compliance with certain regulations promulgated by the U.S. Internal Revenue Service, we inform you that any fcdcral tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, by any taxpayer for the purpose of (1) avoiding tax-related penalties under the U.S. Internal Revenue Code, or (2) promoting, marketing or recommending to another party any tax-related matters addressed herein, unless expressly stated otherwise. This facsimile contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not the addressee, or the person responsible for:delivering it to the addressee, you are hereby notified that reading, disseminating or copying this facsimile is strictly prohibited. If you have received this facsimile by mistake, please immediately notify us by telephone and return the origiml message to us at the address above via Postal Service (we will reimburse postage). Thank you. Vmi chnnlri rPr PnsP rtaaAlcl irw1wiina tble na&P VERIFICATION Joseph G. Gibbons, Esquire, states that I am the attorney of record herein for Lenape Forged Products Corp., that I am authorized to make this Verification on its behalf; and that the statements contained in the foregoing Amended Answer and New Matter to Plaintiff's Amended Complaint are true and correct to the best of my knowledge, information and belief. The undersigned's source of information as to matters not stated upon personal knowledge is based upon verified pleading previously filed in this action and discussions with one or more officers of defendant who are currently outside the jurisdiction of the Court and unable to supply a written verification within the time necessary to file this timely response. If necessary, defendant will substitute the verification of one or more officers for this verification in due course. The undersigned understands that statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Dated: February 27, 2008 o2w.s , (!?eph G. Gib ons PHLDMS 1 4083070x.1 CERTIFICATE OF SERVICE I, Joseph G. Gibbons, Esquire, hereby certify that I caused a true and correct copy of the foregoing Amended Answer and New Matter of Defendant, Lenape Forged Products, Corp. to Plaintiff's Amended Complaint to be served upon counsel for Plaintiff on February 27, 2008 via Federal Express, at the following address: David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 Dated: 'Ih -) le F C-7)4-4 1 '? "" C J ep G. Gibbons PHLDMS 1 408202 t v.2 ?- , --.? t? -i - ? .? _ .t ? J ?:? `. ?i ?; > ? <? P TILESUients\ 71093\ 11093.11. po2. wpd David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-248 - CIVIL ACTION -LAW LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Lenape Forged Products Corporation c/o Steven E. Ostrow, Esquire Joseph G. Gibbons, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE PLAINTIFF'S PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. MARTSON LAW OFFICES David A. Fitzsimons, E uire Seth T. Mosebey, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 17 , 2008 Attorneys for Plaintiff FAFILESTlients\11093\1 1093.11.po2.wpd David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., Plaintiff, V. LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-249 CIVIL ACTION -LAW : JURY TRIAL DEMANDED PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE AMENDED NEW MATTER OF DEFENDANT LENAPE FORGED PRODUCTS CORP. TO: LENAPE FORGED PRODUCTS CORP., Defendant, and its attorneys, Steven E. Ostrow, Esquire Joseph G. Gibbons, Esquire YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes the Plaintiff, Calabrese & Sons, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby submits as follows: 1. On April 5, 2007, Plaintiff filed an Amended Complaint against Lenape Forge, Inc. and Lenape Forged Products Corp. 2. Plaintiff's Amended Complaint contained counts against Defendant Lenape Forged Products Corp. ("Defendant Products") alleging breach of contract and fraud arising out of a transfer of assets from Lenape Forge, Inc. to Defendant Products. 3. On April 25, 2007, Defendant Products filed Preliminary Objections to Plaintiff's Amended Complaint. 4. By Order dated December 13, 2007, following argument on Defendant Products' Preliminary Objections, Defendant Products' Preliminary Objections were denied. 5. Defendant Products requested, and Plaintiffs counsel agreed, to two requests for extensions of time to file an Answer and New Matter due to the holiday season; an Answer and New Matter to Plaintiff s Amended Complaint was filed on or about January 21, 2008. 6. On or about January 25, 2008, Plaintiff wrote to counsel for Defendant Products requesting that Defendant Products withdraw and amend the portions of its New Matter requesting counsel fees because no basis for such relief was pleaded in the New Matter, and costs of suit. 7. Counsel for Plaintiff was advised that Defendant Products refused to withdraw its request for counsel fees and costs of suit because this relief is part and parcel of its threat to file in the future a claim under the "Dragonetti Act." 8. On February 8, 2008, Plaintiff filed Preliminary Objections based on Defendant Products' request for counsel fees and costs of suit. 9. On February 28, 2008 in response to Plaintiff s Preliminary Objections, Defendant Products filed an Amended Answer and New Matter. 10. Defendant Products' Amended Answer and New Matter merely sets forth averments relating to the availability of sanctions, apparently as a basis for its claim of costs and counsel fees. 11. Pursuant to Pennsylvania Rule of Civil Procedure 1023.2, a party must file a motion for sanctions. 12. Pursuant to Pennsylvania Rule of Civil Procedure 1023.2, a motion for sanctions is a separate action and is not properly included within a New Matter. 13. Sanctions are permissible under both the Pennsylvania Rules of Civil Procedure and the "Dragonetti Act" for arbitrary and vexatious behavior. 14. In its Amended New Matter, counsel for Defendant Products is attempting to impermissibly include a claim within a responsive pleading. 15. If any party is engaging in arbitrary and vexatious behavior, it is counsel for Defendant Products who insists on impermissibly making a case for sanctions within its New Matter while prohibiting this case from moving forward on its merits. MOTION TO STRIKE FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA R.C.P. 1028 (a)(2) 16. The averments of the preceding paragraphs are incorporated by reference as if fully set forth herein. IT Pennsylvania Rule of Civil Procedure 1028(a)(2) states, in part, that preliminary objections maybe filed by any party to any pleading for "failure of a pleading to conform to law or rule of court." 18. Defendant Products' New Matter fails to conform to law or rule of court and should be stricken. 19. Pursuant to Pennsylvania Rule of Civil Procedure 1019(a), "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." 20. The "Wherefore" clause of Defendant Products' New Matter contains a demand for "counsel fees and costs of suit." 21. To the extent that the New Matter "Wherefore" clauses seek counsel fees and costs of suit, there is absolutely not one fact pleaded or evidence offered supporting such an inclusion of relief within the "Wherefore" clause, and Plaintiff respectfully requests that elements of any "Wherefore" clause or claim for recovery of fees and costs in the New Matter not consistent with the defense it supports be stricken for failure to conform to law or rule of court. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfully requests that this Honorable Court strike Defendant Products' claim for counsel fees and costs of suit contained in its New Matter for failure to conform to law or rule of court pursuant to Pa.R.C.P. 1028(a)(2). MOTION TO STRIKE FOR LEGAL INSUFFICIENCY (DEMURRER) PURSUANT TO Pa.R.C.P.1028(a)(4) 22. The averments of the preceding paragraphs are incorporated by reference as if fully set forth herein. 23. Pennsylvania Rule of Civil Procedure 1028(a)(4) states that preliminary objections may be filed by any party to any pleading due to "legal insufficiency of a pleading (demurrer)." 24. No element of Defendant Products' New Matter avers any fact supporting a conclusion or request for counsel fees and costs of suit, and Plaintiff respectfully submits that to the extent the New Matter contains a prayer for counsel fees and costs of suit, that claim be dismissed with prejudice. WHEREFORE, Plaintiff Calabrese & Sons, Inc., respectfully requests that this Honorable Court strike Defendant Products' request for counsel fees and costs of suit for legal insufficiency (demurrer) pursuant to Pa.R.C.P. 1028(a)(4). MARTSON LAW OFFICES By J David A. Fitzsimons, Es uire Seth T. Mosebey, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 11 , 2008 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Plaintiff's Preliminary Objections to the New Matter of Defendant was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven E. Ostrow, Esquire Joseph G. Gibbons, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 MARTSON LAW OFFICES By_ Vff4-41) /1 . (??) M Price Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 11 , 2008 r.? Q m `; ' `? ,,, _. ? ?? ,? -?? - ? C _ -.a .. ? ?, si 7 - _? i"i't .?°: ?:' t ? d -? < WHITE AND WILLIAMS LLP BY: Steven E. Ostrow/Joseph G. Gibbons Identification No(s). 50568/60378 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7074 CALABRESE & SONS, INC. Attorneys for Defendant, Lenape Forged Products Corp. CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, V. : NO. 07-428 LENAPE FORGE, INC., and : CIVIL ACTION - LAW LENAPE FORGED PRODUCTS CORPORATION : Defendants. RESPONSE OF LENAPE FORGED PRODUCTS CORP., TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE AMENDED NEW MATTER OF DEFENDANT LENAPE FORGED PRODUCTS CORP. Defendant, Lenape Forged Products Corp. ("Products"), through its counsel, White and Williams LLP, hereby responds to Plaintiff's Preliminary Objections to the Amended New Matter of Defendant, Lenape Forged Products Corp., (the "Preliminary Objections") as follows: Admitted. 2. Denied. Plaintiff's Amended Complaint is a written document the terms of which speak for themselves and Plaintiff's characterization thereof is expressly denied. 3. Admitted. 4. Admitted in part, denied in part. It is admitted that the Preliminary Objections of Products to Plaintiff's Amended Complaint were overruled. PHLDMS 1414519 1 v. I Admitted in part, denied in part. It is admitted that Plaintiff granted an extension of time in which to file an Answer and New Matter to the Plaintiff's Amended Complaint. It is admitted that Products filed the Answer and New Matter of Defendant, Lenape Forged Products Corp., to Plaintiff's Amended Complaint (the "Answer") on or about January 21, 2008. The remaining allegations contained in Paragraph 5 are denied. 6. Admitted in part, denied in part. It is admitted that counsel for Plaintiff wrote to counsel for Products and requested Products amend its Answer and New Matter. To the extent Paragraph 6 infers the Answer failed to allege a basis in law or in fact to support Products' request for an award of counsel fees, said allegation is expressly denied. 7. Admitted in part, denied in part. While Plaintiff's counsel was informed as early as April 24, 2007 of Products' intention to seek sanctions in the form of attorneys' fees either under the Draganetti Act (42 Pa. C.S.A. § 8351 et seq.), Pa. R. Civ. P. 1023 or 42 Pa. C.S.A. § 2503, counsel for Products never indicated that it would limit its rights to seek sanctions to those awarded under the Draganetti Act. See, Exhibit "B" to Products' Amended Answer and New Matter. 8. Admitted. 9. Admitted. 10. Denied. Products' Amended Answer and New Matter is a written document the terms of which speak for themselves and Plaintiff's characterization thereof is expressly denied. By way of further response, Products' Amended Answer and New Matter sets forth the factual basis as well as the legal authority which would permit it to recover the attorneys' fees and costs incurred by it in responding to this action at least from the date on which Plaintiff's counsel 2 PHLDMS 1414519 1 v. I received the April 24, 2007 letter from Products' counsel. See Amended Answer and New Matter ¶ ¶ 61-78 11. Admitted in part, denied in part. It is admitted that Pa. Rule 1023.2 permits a party to move for sanctions as a result of another party's violation of Rule 1023. 1, however, a motion is not required for the award of sanctions. Pa. Rule 1023.3 expressly provides that a Court may sua sponte issue an order to show cause why an offending party should not be sanctioned. Such action may be taken by the Court in the absence of a motion by any party. Moreover, Pa. Rule 1023.2(c) expressly provides that any motion for sanctions under the Rule must be filed "in the trial court before the entry of final judgment." As such, Products is entitled to, and actually must, seek attorneys' fees under that Rule in this action. 12. Denied. Paragraph 12 consists entirely of conclusions of law which are deemed denied. Products incorporates by reference Paragraph 11 of this response as fully as though set forth herein at length. 13. Admitted in part, denied in part. Paragraph 13 consists entirely of conclusions of law which are deemed denied without further response. 14. Denied. Paragraph 14 consists entirely of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, by including a prayer for counsel fees and costs of suit in its New Matter, Products is merely reserving its rights to seek the counsel fees which it believes it is entitled to under Pa. R. Civ. P. 1023, 42 Pa. C.S.A. § 2503 and 42 Pa. C.S.A. § 8351 et seq. Moreover, nothing contained in the applicable Rules of Procedure preclude a party from asserting an affirmative claim in a responsive pleading. See Pa. R. Civ. P. 1030(a) (a party may set forth as New Matter 3 PHLDMS 1414519 1 v. I any other material facts which are not merely denials of the averments of the preceding pleading) and Rule 1031(a) (a defendant may set forth in the Answer any cause of action which the defendant has against the plaintiff at the time of filing the Answer). 15. Denied. Paragraph 15 consists entirely of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, Plaintiff's assertion in this paragraph is disingenuous. Contrary to Products which has set forth the facts and legal authority which support an award of sanctions against Plaintiff in the amount of the attorney's fees incurred by Products, Plaintiff has included in its Complaint no assertion of fact nor citation to legal authority which would support an award of attorney's fees against Products. Plaintiff, however, has included a demand for attorney's fees in its Complaint. See Ad damnum clause following Count IV of Plaintiff's Amended Complaint. MOTION TO STRIKE FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA. R. CIV. P. 1028(A)(2). 16. Products incorporates by reference paragraphs 1 through 15 of this Response as fully as though set forth herein at length. 17. Denied. Paragraph 17 consists entirely of conclusions of law which are deemed denied without further response. 18. Denied. Paragraph 18 consists entirely of conclusions of law which are deemed denied without further response. 19. Admitted. 20. Admitted. 4 PHLDMS 1 4145191v.1 21. Admitted in part, denied in part. It is admitted that the Ad damnum clause following the New Matter asserted in Products' Amended Answer does not contain a recitation of facts which support Products' demand for attorney fees and costs. To the extent, that Paragraph 21 infers that the failure to include such facts in the Ad damnum clause constitutes a violation of some rule of law or court, said allegation is expressly denied. The purpose of an Ad damnum clause is merely to recite the relief prayed for by the party based upon the facts previously alleged in the Complaint or New Matter. See Pa. R. Civ. P. 1021(a) (any pleading demanding relief shall specify the relief sought. Relief in the alternative or of several different types, including an accounting may be demanded). As set forth more fully herein, the Amended Answer and New Matter contains sufficient allegations of fact that warrant the relief prayed for in the New Matter. WHEREFORE, Defendant, Lenape Forged Products Corp., demands that Plaintiff s Preliminary Objections to the Amended New Matter of Defendant, Lenape Forged Products Corp., be overruled. MOTION TO STRIKE FOR LEGAL INSUFFICIENCY (DEMURRER) PURSUANT TO Pa. R. CIV. P. 1028(a)(4) 22. Defendant, Products, incorporates by reference paragraphs 1 through 21 of this Response as fully as though each were set forth herein at length. 23. Admitted. 24. Denied. Paragraph 24 consists entirely of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, Products' Amended Answer contains sufficient averments of fact and reference to 5 PHLDMS 1 4145191v.1 legal authority which would justify an award of attorneys' fees as sanctions against Plaintiff including, but not limited to: at all times material hereto, Products and Lenape Forge Inc. ("LFI") were two distinct corporations with different owners, officers and directors; that Products did not come into existence until after Plaintiff purportedly incurred damages resulting from LFI's breach of its alleged contract with Plaintiff, that Products purchased the real property upon which LFI's facility was located at a regularly conducted sheriff sale held by the Sheriff of Chester County, Pennsylvania; that Products purchased certain personal property previously owned by LFI from one of LFI's foreclosing creditors; that Products forwarded to Plaintiff s counsel copies of the Sheriff's Deed and the Asset Purchase Agreement between Products and Merrill Lynch Business Financial Services, Inc. on or about April 3, 2007; that on or about April 24, 2007, counsel for Products wrote to counsel for Plaintiff outlining the above facts and requesting that this action be withdrawn; that counsel for Plaintiff was in possession of facts which conclusively refute the factual allegations necessary to support Plaintiff's claims prior to the date on which Plaintiff's Amended Complaint was filed and that the conduct of Plaintiff under such circumstances entitles Products to an award of sanctions in the form of attorneys' fees under Pa. R. Civ. P. 1023.1(c), Pa. R. Civ. P. 1023.4(a)(2)(iii), 42 Pa. C.S.A. § 2503(7) and/or 42 Pa. C.S.A. § 2503(9). See Amended Answer ¶ ¶ 61 through 78. 6 PHLDMS 14145191 v.1 WHEREFORE, Defendant, Lenape Forged Products Corp., demands that Plaintiff's Motion to Strike for Legal Insufficiency (Demurrer) Pursuant to Pa. R. Civ. P. 1028(a)(4) be overruled. By: Respectfully submitted, WHITE AND WILLIAMS St V# E. Ostrow, Esquire Jo h G. Gibbons, Esquire 1800 One Liberty Place Philadelphia, PA 19103 Telephone (215) 864-7000 Telecopier (215) 864-7123 Attorneys for Defendant, Lenape Forged Products Corp. 7 PHLDMS 1 4145191v.1 CERTIFICATE OF SERVICE I, Joseph G. Gibbons, Esquire, hereby certify that I caused a true and correct copy of the foregoing Response of Lenape Forged Products Corp., to Plaintiff's Preliminary Objections to the Amended New Matter of Defendant Lenape Forged Products Corp. to be served upon counsel for Plaintiff on April -?-" 2008 via Federal Express, at the following address: David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 Dated: ? " 0 Qkx'? /? Z( ? Jo Vep G. Gibbons PHLDMS 1414519 1 v. I ca -rt -rt l NOTICE TO PLEAD WHITE AND WILLIAMS LLP BY: Steven E. Ostrow/Joseph G. Gibbons Identification No(s). 50568/60378 1800 One Liberty Place Philadelphia, PA 19103-7395 215.864.7074 TO: Plaintiff You are hereby notified to file a written response to the following Answer and New Matter within twenty (20) days of service hereof or a judgment may be entered inst you. Atto eys or Defendant, Lenape Forged Products Corp. Attorneys for Defendant, Lenape Forged Products Corp. CALABRESE & SONS, INC. Plaintiff, V. CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 07-428 LENAPE FORGE, INC., and : CIVIL ACTION - LAW LENAPE FORGED PRODUCTS CORPORATION : Defendant SECOND AMENDED ANSWER AND NEW MATTER OF DEFENDANT, LENAPE FORGED PRODUCTS CORP., TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Lenape Forged Products Corp. ("Products"), through its counsel, White and Williams LLP, hereby asserts the following Second Amended Answer and New Matter to Plaintiff s Amended Complaint, and in support thereof avers as follows: PHLDMS 1 4082021v.3 I . Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 1 and therefore said allegations, to the extent material, are denied. 2. Denied. Paragraph 2 is directed at parties other than Products and therefore no response is required. To the extent a response is required, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 2 and therefore, to the extent material, said allegations are denied. Upon information and belief, Defendant, Lenape Forge, Inc. ("LFI") is no longer in business. 3. Admitted. 4. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 4 and therefore, to the extent material, said allegations are denied. 5. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 5 and therefore, to the extent material, said allegations are denied. 6. Admitted in part, denied in part. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations relating to defendant, LFI, and therefore, to the extent material, said allegations are denied. It is admitted that Products is engaged in the business of producing raw forgings. It is expressly denied that Products ever produced any raw forgings for plaintiff, Calabrese and Sons, Inc. ("Calabrese" or "Plaintiff") or that Products ever entered into any business transaction with Calabrese. 2 PHLDMS 1 4082021v.3 7. Admitted in part, denied in part. It is admitted that Products has obtained authorization from the Secretary of State of the Commonwealth of Pennsylvania to conduct business operations in the Commonwealth. Products, however, lacks sufficient knowledge with which to form a belief as to the truth of the assertions related to defendant, LFI, and therefore, to the extent material, said allegations are denied. 8. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 8 and therefore, to the extent material, said allegations are denied. 9. Denied. Paragraph 9 consists of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, at no time has Products conducted any business transactions with Calabrese in Cumberland County or elsewhere. By way of further response, at no time has Products conducted any business operation in Cumberland County or with any parties located in Cumberland County, Pennsylvania. 10. Denied. Paragraph 10 contains no allegation with respect to or directed at Products and therefore no response is required. To the extent that any allegation in paragraph 10 is deemed to relate to Products, Products lacks sufficient information with which to form a belief as to the truth of any allegations related to any alleged contract between Calabrese and LFI and therefore, to the extent material, said allegations are denied. 11. Denied. Paragraph 11 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 11 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, PHLDMS 1 4082021v.3 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 12. Denied. Paragraph 12 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 12 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 13. Denied. Paragraph 13 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 13 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 14. Denied. Paragraph 14 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 14 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 4 PHLDMS 1 4082021v.3 15. Denied. Paragraph 15 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 15 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 16. Denied. Paragraph 16 contains no allegations related to Products and therefore no response is required. To the extent that the allegations contained in paragraph 16 are deemed to relate to Products, said allegations are denied. Products did not exist prior to December 15, 2005; conducted no business until January 1, 2006; was never a party to any contract with Calabrese; and never agreed to assume or guaranty any obligations of any other party under any contract between such other party and Calabrese. 17. Denied. Exhibit 6 to Plaintiff's Complaint is a written document the terms of which speak for themselves and Plaintiff s characterization thereof is expressly denied. 18. Denied. At the time of the transaction alleged in paragraph 18, Products did not exist. Products was not formed until December 15, 2005; conducted no business until January 1, 2006; and lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 18. Accordingly, said allegations are denied. 19. Denied. The allegations contained in paragraph 19 are directed at parties other than Products and therefore no response is required. By way of further response but not in derogation of the foregoing, Products lacks sufficient knowledge with which to form a belief as 5 PHLDMS 1 408202]v.3 to the truth of the allegations contained in paragraph 19 therefore, to the extent material, said allegations are denied. 20. Denied. Upon information and belief, Calabrese issued the purchase order in question to LFI. At the time of the transaction or occurrence alleged in paragraph 20, Products did not yet exist. Products was not formed until December 15, 2005 and lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 20 therefore, to the extent material, said allegations are denied. 21. Admitted in part, denied in part. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 21 which are directed at LFI and therefore, to the extent material, said allegations are denied. It is admitted that Calabrese made demand on Products for payment of amounts which Calabrese allegedly paid to LFI and that Products refused to honor such demand. To the extent the allegations in paragraph 21 infer that Products has any obligation to Calabrese related to the alleged contract between Calabrese and LFI, said allegation is denied. 22. Denied. On October 11, 2005, Products did not yet exist. Products was not formed until December 15, 2005. Products neither forwarded the alleged communication to Calabrese nor authorized anyone to forward such alleged communication on its behalf 23. Products incorporates by reference paragraph 22 of this Answer as fully as though set forth herein at length. By way of further response, but not in derogation of the foregoing, Exhibit 9 to the Complaint is a written document the terms of which speak for themselves and Plaintiff s characterization thereof is expressly denied. 6 PHLDMS 1 4082021v.3 24. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 24 therefore, to the extent material, said allegations are denied. 25. Admitted in part, denied in part. It is admitted that David Hershbell is an employee of Products. Upon information and belief, Mr. Hershbell was previously employed by LFI and, on behalf of LFI, issued the revised quote attached to the Complaint as Exhibit 8. To the extent that paragraph 25 implies any action or inaction of Mr. Hershbell while employed by LFI or any other entity could be attributed to or binding on Products, such allegation is expressly denied. 26. Admitted in part, denied in part. Upon information and belief, Mr. Hershbell advised Calabrese that the quote needed to be revised. Products lacks sufficient knowledge regarding the state of mind of Mr. Calabrese and therefore the allegations related to his reason for agreeing to the revisions, to the extent material, are denied. 27. Admitted upon information and belief. 28. Denied. Upon information and belief, Mr. Calabrese was informed more than once between July 15, 2005 and December 21, 2005 that LFI had ceased all business operations. 29. Admitted in part, denied in part. Upon information and belief, Mr. Hershbell was aware of the financial difficulties of LFI in June 2005 but was not aware that any diversion of funds had occurred. 30. Admitted upon information and belief. 31. Denied. Upon information and belief, Mr. Calabrese was informed more than once between July 15, 2005 and December 21, 2005 that LFI had ceased all business operations. 7 PHLDMS 1 4082021v.3 32. Denied. Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations contained in paragraph 32 related to LFI therefore, to the extent material, said allegations are denied. It is expressly denied that Products and LFI share any common employees, directors, officers or owners in any way. Upon information and belief, LFI ceased all business operations on July 15, 2005. Afterward, Products hired one or more former employees of LFI. At no time, however, was any person employed by both LFI and Products simultaneously and as set forth more fully above, Products was not and is not a party to the alleged contract between Calabrese and LFI as Products did not come into existence until after that alleged contract was purportedly breached by LFI. Neither Mr. Hershbell nor Mr. Stolz was employed by Products on December 21, 2005. By way of further response, Products lacks sufficient knowledge with which to form a belief as to the truth of the allegations of damages which were allegedly incurred by Calabrese as a result of LFI's alleged breach of the alleged contract. 33. Denied. Neither Mr. Hershbell nor Mr. Stolz were employed by Products on December 21, 2005. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff's attorney on December 21, 2005 not 2006. Upon information and belief, Mr. Hershbell and Mr. Stolz agreed to contact Ellwood Quality Steel and obtain a price for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell and Mr. Stolz contacted Ellwood Quality Steel and obtained a price quote for raw materials for a potential new contract. 34. Denied. Paragraph 34 consists of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, 8 PHLDMS 1 4082021v.3 Neither Mr. Hershbell and Mr. Stolz was employed by Products on December 21, 2005. Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 34 therefore, to the extent material, said allegations are denied. 35. Admitted in part, denied in part. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff's attorney on December 21, 2005 not 2006. On December 21, 2005 neither Mr. Hershbell nor Mr. Stolz were employed by Products. Upon information and belief Mr. Calabrese and Plaintiff's attorney communicated the message set forth in paragraph 35 at the December 21, 2005 meeting. Upon information and belief, Mr. Calabrese was told that LFI, the party responsible for the contract, had ceased operations on July 15, 2005. 36. Denied. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff s attorney on December 21, 2005 not 2006. Neither Mr. Hershbell nor Mr. Stolz was employed by Products on December 21, 2005. Upon information and belief, Mr. Hershbell and Mr. Stolz agreed to contact Ellwood Quality Steel and obtain a price for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell and Mr. Stolz contacted Ellwood Quality Steel and obtained a price quote for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell determined that a new contract to produce the billet requested by Plaintiff was not feasible. To the extent that paragraph 36 infers that Mr. Hershbell and/or Mr. Stolz were employees or representative of Products on December 21, 2005 9 PHLDMS 1 4082021v.3 or that any representative of Products could obtain billet from Ellwood Quality Steep for which Ellwood Quality Steel had not received payment, said allegation is expressly denied. 37. Denied. Upon information and belief, no lawsuit was discussed at the December 21, 2005 meeting. To the extent paragraph 37 infers that Mr. Hershbell and Mr. Stolz were employees or representatives of Products on December 21, 2005, said allegation is denied. 38. Denied. Upon information and belief, Mr. Hershbell and Mr. Stolz met with Mr. Calabrese and Plaintiff s attorney on December 21, 2005 not 2006. Neither Mr. Hershbell nor Mr. Stolz were employed by Products on December 21, 2005. Upon information and belief, Mr. Hershbell and Mr. Stolz agreed to contact Ellwood Quality Steel and obtain a price for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell and Mr. Stolz contacted Ellwood Quality Steel and obtained a price quote for raw materials for a potential new contract. Upon information and belief, Mr. Hershbell determined that a new contract to produce the billet requested by Plaintiff was not feasible. To the extent that paragraph 36 infers that Mr. Hershbell and/or Mr. Stolz were employees or representatives of Products on December 21, 2005 or that any representative of Products could obtain billet from Ellwood Quality Steel for which Ellwood Quality Steel had not received payment, said allegation is expressly denied. 39. Admitted. 40. Denied. It is expressly denied that any amounts allegedly forwarded by Calabrese to LFI benefited Products in any way. Products was formed on December 15, 2005 Products purchased the real property previously owned by LFI at a regularly conducted sheriff sale after a 1) The Complaint contains a number of references to Ellwood City Steel in addition to Ellwood Quality Steel. Products believes that Calabrese intended for all such references to refer to Ellwood Quality Steel and has responded accordingly. In the event this assumption is incorrect, to the extent material, Products reserves the right to amend this Amended Answer and New Matter to refer to the correct entity. 10 PHLDMSI 4082021v.3 foreclosure by one of LFI's secured creditors. Products purchased certain personal property of LFI pursuant to a private UCC sale conducted by another foreclosing creditor of LFI. To the extent that paragraph 40 alleges that Products had any duty to Calabrese, said allegation is denied. Moreover, neither Mr. Hershbell nor Mr. Stolz was employed by Products at the time of the meeting alleged in the Complaint. Products lacks sufficient knowledge with which to form a belief as to the truth of the remaining allegations contained in paragraph 40 therefore, to the extent material, said allegations are denied. 41. Products incorporates by reference paragraph 33 of this Answer and New Matter as fully as though set forth herein at length. 42. Denied. It is denied that any employee of Products made any representation to Calabrese related to this matter. Products lacks sufficient knowledge with which to form a belief as to the truth of the remaining allegations contained in paragraph 42 therefore, to the extent material, said allegations are denied. 43. Denied. To the extent that paragraph 43 infers that Products had any obligation whatsoever to assist Calabrese in obtaining billet said allegation is expressly denied. To the extent paragraph 43 alleges that no one on behalf of Products contacted Ellwood Quality Steel in an attempt to obtain billet for Calabrese, said allegation is admitted. To the extent paragraph 43 alleges that no one from Products submitted a proposal to Calabrese for obtaining billet from Ellwood Quality Steel, said allegation is admitted. Upon information and belief, any attempt to contact Ellwood Quality Steel to obtain billet for which Ellwood Quality Steel had not received payment would have been futile. As a result, Calabrese was not and could not have been harmed as a result of any inaction by Products in this regard. 11 PHLDMS 1 4082021v.3 44. Denied. Paragraph 44 consists entirely of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, at the time alleged representations referred to in the Complaint were made, neither Mr. Hershbell nor Mr. Stolz was employed by Products. Moreover, based upon the allegations contained in the Complaint, any damages sustained by Calabrese occurred prior to the date upon which Products came into existence. Accordingly, it is factually impossible for Calabrese to have sustained damages resulting from any alleged representation or misrepresentation of Products. Moreover, Products neither forwarded the "mailings" referred to in paragraph 44 to Calabrese nor authorized anyone to forward such alleged "mailings" on its behalf. COUNT I - BREACH OF CONTRACT Calabrese and Sons, Inc. v. Lenave Forge, Inc. 45. Products incorporates by reference paragraph 1 through 44 of this Amended Answer and New Matter as fully as though each were set forth herein at length. 46. The allegations contained in paragraph 46 are directed at parties other than Products and therefore no response is required. WHEREFORE, Defendant, Products demands judgment in its favor and against Plaintiff together with costs of suit. COUNT II - BREACH OF CONTRACT Calabrese and Sons, Inc. v. Lenape Forted Products Corporation 47. Products incorporates by reference paragraph 1 through 46 of this Amended Answer and New Matter as fully as though each were set forth herein at length. 12 PHLDMS 1 4082021v.3 48. Denied. At no time did LFI transfer any assets to Products. As set forth more fully above, Products purchased certain real property previously owned by LFI at a regularly conducted sheriff sale in a foreclosure action brought by a secured creditor of LFI. Products purchased certain personal property of LFI at a private UCC sale conducted by a different secured creditor of LFI. At no time did Products obtain any assets directly from LFI. To the extent that paragraph 48 alleges that Products' purchase of assets from any party violated the Pennsylvania Uniform Transfer Act or the Pennsylvania Uniform Fraudulent Transfers Act (the "PAUFTA"), said allegation consists of conclusions of law which are deemed denied. To the extent Products' purchase of the assets previously owned by LFI may be deemed a transfer, Products lacks sufficient knowledge with which to form a belief as to the intent of LFI. Therefore, to the extent material, such allegations are denied. 49. Denied. As set forth more fully above, Products neither entered into any contract with Calabrese nor assumed any other party's obligations under a contract with Calabrese. Based upon the allegations contained in the Complaint, if proven, LFI entered into and breached its contract with Calabrese long before Products ever came into existence. WHEREFORE, Products demands judgment in its favor and against Calabrese together with costs of suit. COUNT III - FRAUD Calabrese and Sons, Inc. v. Lenaue Fore, Inc. 50. Products incorporates by reference paragraph 1 through 49 of this Amended Answer and New Matter as fully as though each were set forth herein at length. 13 PHLDMS 1 4082021v.3 51. Denied. The allegations set forth in paragraph 51 are directed at parties other than Products and therefore no response is required. To the extent a response is deemed required, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 51 therefore, to the extent material, such allegations are denied. 52. Denied. The allegations set forth in paragraph 52 are directed at parties other than Products and therefore no response is required. To the extent a response is deemed required, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 52 therefore, to the extent material, such allegations are denied. 53. Denied. The allegations contained in paragraph 53 are directed at parties other than Products and therefore no response is required. To the extent a response is required, the allegations contained in paragraph 53 consist entirely of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, Products lacks sufficient knowledge with which to form a belief as to the truth of the matters asserted in paragraph 53 therefore, to the extent material, such allegations are denied. WHEREFORE, Products demands judgment in its favor and against Calabrese together with costs of suit. COUNT IV - FRAUD Calabrese and Sons, Inc. v. Lenape Fomed Products Corporation 54. Products incorporates by reference paragraph 1 through 53 of this Amended Answer and New Matter as fully as though each were set forth herein at length. 55. Denied. Paragraph 55 consists of conclusions of law which are deemed denied without further response. By way of further response, but not in derogation of the foregoing, as 14 PHLDM S 14082021 v.3 set forth more fully above, LFI never transferred any assets to Products. Products purchased certain real property previously owned by LFI at the regularly scheduled Sheriffs sale conducted in a foreclosure proceedings brought by a secured lender of LFI. Products purchased other assets previously owned by LFI at a private UCC sale conducted by another secured creditor of LFI. Both of these transactions arose out of good faith, arms-length negotiations between Products and the foreclosing creditors of LFI. 56. Denied. As set forth more fully above, Products purchased certain assets that were previously owned by LFI in two separate transactions. Certain real property previously owned by LFI was purchased at the regularly conducted Sheriffs sale pursuant to a judgment in foreclosure obtained by a secured creditor of LFI. Certain personal property previously owned by LFI was purchased pursuant to a good faith, arms-length private UCC sale conducted by the foreclosing creditor which had a lien on the personal property of LFI. It is admitted that Products has taken the position that it has no obligations to Calabrese or any other creditor of LFI arising out of transactions between those creditors and LFI. To the extent that paragraph 56 infers that Products has any liability arising out of any obligation of LFI to any creditor of LFI, said allegation is expressly denied. 57. Admitted in part, denied in part. It is admitted that certain employees of Products have informed certain employees or representative of Calabrese that Products has no obligation to Calabrese arising out of the transactions upon which this action are based. To the extent that paragraph 57 infers that any current or former officer, director, or shareholder of LFI is or ever was an officer, director, or shareholder of Products, said allegation is expressly denied. It is admitted that Products hired one or more employees of LFI after LFI ceased operation. To the 15 PHLDMS 14082021 v.3 extent that paragraph 56 infers that Products has any liability arising out of any obligation of LFI to any creditor of LFI, said allegation is expressly denied. 58. Denied. To the extent that the allegations contained in paragraph 58 consist of conclusions of law, said allegations are deemed denied without further response. By way of further response, but not in derogation of the foregoing, as a matter of law, Products has no obligation whatsoever to Calabrese or any other creditor of LFI by virtue of its purchase of assets formerly owned by LFI from the foreclosing creditors of LFI. Moreover, Products neither entered into any contract with Calabrese nor received any of the funds that Calabrese allegedly forwarded to LFI pursuant to the alleged contract between those two entities. The assets which Products purchased were separated from the liabilities of LFI by operation of law at the time of the Sheriff's Sale of the real property and the UCC sale of the personal property. 59. Denied. No response is required to those allegations contained in paragraph 59 which are directed at parties other than Products. To the extent material, however, such allegations are denied. It is expressly denied that Products took any action in connection with its purchase of certain assets of LFI from the foreclosing creditors of LFI with the intent to cause, or with knowledge that such action would likely cause, damage, embarrassment, or loss of any kind to Calabrese or any other creditor of LFI. 60. Denied. Paragraph 60 consists entirely of conclusions of law which are deemed denied without further response. WHEREFORE, Products demands judgment in its favor and against Calabrese together with costs of suit. 16 PHLDMS l 4082021v.3 NEW MATTER 61. Products incorporates by reference paragraph 1 through 60 of this Second Amended Answer and New Matter as fully as though each were set forth herein at length. 62. Products is a Delaware corporation which was formed on December 15, 2005 and which purchased certain assets of LFI from certain foreclosing creditors of LFI. 63. Although Products occupies the facility formerly operated by LFI, the two corporations are distinct corporate entities. 64. Products neither owns nor controls LFI and none of the owners or officers of LFI owns or controls Products 65. Products purchased the foreclosed assets on January 1, 2006 more than eight (8) months after Calabrese allegedly issued the purchase order to LFI which is the subject matter of this action and more than six (6) months after Calabrese allegedly forwarded payment to LFI for the billets. 66. Because Products is not a party to any contract with Calabrese and did not assume or guaranty any obligations of any party to such alleged contract, it is not liable to Calabrese for breach of any contract which Calabrese entered into with LFI or any other party. 67. Fatal to Calabrese's claim for fraud is the fact that Calabrese does not allege, nor can it allege, that Products made any representation whatsoever to Calabrese prior to September 28, 2005 the date on which, Calabrese contends, it allegedly suffered damages as the result of LFI's failure to deliver the billets pursuant to its alleged contract with Calabrese. 68. Although the Complaint alleges that certain employees of Products made certain representations to Calabrese, the alleged representations were apparently made at a meeting that 17 PHLDMS 1 4082021v.3 took place on or about December 21, 2005 and not December 21, 2006, as alleged. Moreover, those representations and were allegedly made by persons who were not, at the time, employees, representatives or agents of Products. Finally, such alleged representations were allegedly made after the alleged breach of contract by LFI and any resultant damage to Calabrese and Calabrese has not and cannot allege that it suffered any damages as a proximate result of such alleged representations. 69. The Amended Complaint does not and, in fact, Calabrese cannot, allege facts which, if proven, would establish a violation of the PAUFTA. 70. At all times material hereto, the amount which LFI owed to the secured creditor which sold the personal property to Products exceeded the value of LFI's personal property. Accordingly, no transfer occurred under the PAUFTA. See 12 Pa.C.S.A. § 5101(b) (property of debtor encumbered by a valid lean does not constitute an "asset" when determining if a transfer has occurred). 71. Moreover, pursuant to the express terms of the PAUFTA, the sale of those assets to Products was not fraudulent. See 12 Pa.C.S.A. § 5108(e) (transfer resulting from enforcement of security interest in compliance with Article 9 of the UCC is deemed not fraudulent). 72. In addition, a non-collusive, procedurally proper Sheriff Sale may not be invalidated as a fraudulent conveyance. In re Sheilds, 148 B.R. 783 (Bankr. E.D. Pa. 1993); see also U.S. v. Gleneagles Inv. Co. Inc., 571 F.Supp. 935 (M.D. Pa. 1983), aff'd. 803 F.2d 1288, cert. den. 107 S. Ct. 3229, 483 U.S. 1005 (actions of mortgagee and prospective purchasers of mortgages in formulating strategy and acting to obtain subject land at tax sale free and clear of 18 PHLDM S 1 408202]v.3 claims of other creditors, did not constitute fraudulent conveyance where evidence did not establish any conspiracy involving mortgagor). 73. In April 2007, counsel for Products sent letters to counsel for Calabrese demanding that Calabrese withdraw its claims against Products and providing Calabrese copies of a Sheriff's Deed and a Private Sale Agreement between Products and one of LFI's secured creditors which demonstrate that Products purchased certain assets of LFI from two separate foreclosing creditors pursuant to non-collusive arms length transactions of which LFI was not a party. Despite such demand, Calabrese has refused to withdraw its claims against Products to date. 74. The conclusory allegations of intent contained in paragraphs 48 and 55 of the Amended Complaint, are contrary to the documentation provided to Calabrese by Products which established the arms length nature of the transactions between Products and LFI's secured creditors and the lack of any legal or factual basis to support the allegations contained in the Amended Complaint. 75. Plaintiff's Amended Complaint fails to state a claim against Products upon which relief can be granted. 76. Plaintiff's claims against Products are barred by the doctrine of estoppel. 77. Plaintiff's claims against Products are barred by the doctrine of laches. 78. Plaintiff s claims against Products are barred by accord and satisfaction. 79. Plaintiffs claims against Products are barred by Plaintiffs failure to cover and/or otherwise mitigate claimed damages. 80. Plaintiffs claims against Products are barred by the doctrine of justification. 19 PHLDM S 1 408202]v.3 81. Plaintiffs claims against Products are barred by the Statute of Frauds and the Parole Evidence Rule. 82. Plaintiff s claims against Products are barred by the applicable Statute of Limitations. 83. Plaintiffs claims against Products are barred by the doctrine of waiver. 84. Plaintiffs claims against Products are barred by the lack of consideration. 85. Plaintiff s claims are barred by the doctrine of unclean hands and Plaintiff s misconduct, actions, and inactions. 86. Plaintiff s claims are barred by its own contributory causal conduct. 87. If Plaintiff sustained any damages, such damages were not caused by Products but were caused by the acts or failures to act of Plaintiff, LFI and/or other parties over which Products has no control or right of control. 88. Products did not breach any duty owed, if any, to Plaintiff. 89. Plaintiffs claims are barred pursuant to the applicable terms of the Uniform Commercial Code. 90. Plaintiff s claims are barred pursuant to the doctrines of set-off and recoupment. 20 PHLDMS 1 4082021v.3 WHEREFORE, Defendant Products demands judgment in its favor and against Plaintiff together with costs of suit. WHITE AND WIL A S LLP By: Steven s row, Esquire Joseph G. Gibbons, Esquire 1800 One Liberty Place Philadelphia, PA 19103 Telephone (215) 864-7000 Telecopier (215) 864-7123 21 PHLDM S 1 4082021v.3 VERIFICATION Joseph G. Gibbons, Esquire, states that I am the attorney of record herein for Lenape Forged Products Corp., that I am authorized to make this Verification on its behalf; and that the statements contained in the foregoing Second Amended Answer and New Matter to Plaintiff's Amended Complaint are true and correct to the best of my knowledge, information and belief. The undersigned's source of information as to matters not stated upon personal knowledge is based upon discussions with one or more officers of defendant who are currently outside the jurisdiction of the Court and unable to supply a written verification within the time necessary to file this timely response. If necessary, defendant will.substitute the verification of one or more officers for this verification in due course. The undersigned understands that statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. Dated: July 8, 2008 cla Z? 1?? 9 Joseph G. Gibbons PHLDMS 1 4463959v. I Y CERTIFICATE OF SERVICE I, Joseph G. Gibbons, Esquire, hereby certify that I caused a true and correct copy of the foregoing Second Amended Answer and New Matter of Defendant, Lenape Forged Products, Corp. to Plaintiff's Amended Complaint to be served upon counsel for Plaintiff on July e_, 2008 via first class mail, postage prepaid, at the following address: David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 &A. ?? Steven E. Ostrow, Esq. PHLDMS 1 4082021v.3 r ? ?i ? ? ?" ? ? ?? ., , .. ? ,.. r4 f?1 ? 1 " "A?v . 4 G..` v ? 5, /? ? {? `I rr? ¢ ?,lz 9 .1y F:\FILES\Clients\11093 Calabrese\I 1093.1 Lpra •-' Created: 9/20/04 0:06PM Revised: 12/19/08 3:54PM 11093.11 David A. Fitzsimons, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CALABRESE & SONS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. LENAPE FORGE, INC., and LENAPE FORGED PRODUCTS CORPORATION, Defendants NO. 07-428 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly mark the above-referenced matter as settled, discontinued and ended as to Lenape Forged Products Corporation only. MARTSON LAW OFFICES By_?'L David A. Fitzsimons, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: December 19, 2008 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven E. Ostrow, Esquire WHITE & WILLIAMS, LLP 1800 One Liberty Place Philadelphia, PA 19103 MARTSON LAW OFFICES By /?- ia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: December 19, 2008 r-; ?? ,? °'3"7 j r- (° ; I ?", i?+„7 ..? E a? --4 `?