Loading...
HomeMy WebLinkAbout96-05441 '"'" ~ \) ( ~ 1 ...... ~ ~ ~ ~ .~ - ~ \) -.i ~ . <J H ~ \ ; i / ~ ! ~ - . f'/ l , , I , 1 i , i I I I I .\..: ~\ :',;~ ,~ HfM'T.L(H/10CnI/DI$U HEMPT BROS., INC., Plaintiff ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. LEHIGH PORTLAND CEMENT COMPANY, CIVIL ACTION - LAW '.~4/ NO. 1996 - ] CIVIL TERM Defendant 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 judgment may be 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 PAPERS TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Fourth Floor, Cumberland County Court House Carlisle, Pennsylvania 17013 Telephone: (717) 240-6200 1 5. The white Portland cement purchased by Hempt from Lehigh was used to manufacture white concrete which was then sold to DuBrook, Inc., for the purpose of the manufacture and production of white concrete median barriers used on various Pennsylvania highways. 6. Lehigh knew, or should have known, that the white cement it sold to Hempt during the time period from July, 1994, through September, 1994, was an integral part in the manufacture of white concrete and that the white concrete needed to meet any and all specifications required by the Pennsylvania Department of Transportation (hereinafter referred to as MPenn DOTM) as it relates to white concrete median barrier, 7. Hempt paid Lehigh for all of the cement it purchased from Lehigh during the time period from July, 1994, through September, 1994. 8. On or about 20 November 1995 Hempt was notified by OuBrook, Inc.. that the white cement it provided to DuBrook from 28 July 1994 through 25 August 1994 was rejected by the Penn DOT due to the fact that the concrete was dramatically darker than the other concrete produced on the project and therefore would not provide the reflectivity required by Penn DOT for the project. 9. DuBrook. Inc., rejected a total of 168 pieces of median barrier, or 2,688 linear feet. produced by Hempt from 28 July 1994 through 25 August 1994, those btinO the same pieces and linear feet rejected by Penn DOT. 3 10. DuBrook, Inc., was able to mitigate its losses on the rejection of these pieces of median barrier by selling the median barrier as gray median barrier rather than white median barrier. 11. DuBrook, Inc., sought and received a credit from Hempt for the difference in the price between the purchase price charged by Hempt for the white concrete vs. the normal charges for gray concrete since DuBrook was able to sell the median barrier in question as gray median barrier rather than white median barrier. 12. The total amount of the credit received by DuBrook, Inc., from Hempt was $11,639.04. 13. Hempt was required to provide DuBrook, Inc., with a credit in the amount of $11,639.04 due to the discoloration of the white concrete produced by Hempt for DuBrook from 28 July 1994 through 25 August 1994. COUNT I BREACH OF EXPRESS WARRANTY 14. Paragraphs 1 through 13 are hereby incorporated by reference a. if more fully set forth herein. 15, Lehigh sold Hempt white Portland cement which it knew or should h8ve known WH to be used to produce white concrete for white mediM barrier.. " 16. Lehigh expressly warranted to Hempt that the cement supplied to Hempt from July, 1994, through September, 1994, could be used in the manufacturer of white concrete. 1 7. Lehigh breached the expressed warranty by delivering cement that did not conform to the standards and requirements of white cement, in that the ultimate concrete produced by using the cement was not white and in conformity with the Penn DOT regulations. 18. As a result of the breach of the express warranty, Hempt incurred damages which were approximately related to breach and which include incidental and consequential damages in the amount of $11,639.04, that being the amount of credit Hempt was required to provide to DuBrook, Inc. WHEREFORE, Hempt demands damages against Lehigh in the amount of $11,639.04. COUNT II BREACH OF IMPUm WARRANTIES 19. Paragraphs 1 through 13 ere incorporated herein by reference .. Is more fully set forth herein. 20. Lehigh is . merchant as that term is d.fined by the Uniform Commercial Code. Lehi;h sold white camant to Hempt &tos., with In imt:ltied warranty of 5 merchantability that the white cement would conform to the standards and requirements of white cement. 21. Lehigh also provided an implied warranty that the white cement sold to Hempt was fit for the panicular purpose that it was being used by Hempt, namely for the production of white concrete. 22. The white cement sold by Lehigh to Hempt during the period from July, 1994, through September, 1994, was not merchantibile in that it did not conform to the standards and specifications of white cement. 23. The white cement sold to Hempt during the period from July, 1994, through September, 1994, was not fit for the panicular purpose it was sold to Hempt, in that it did not produce white concrete in conformity with the specifications of Penn DOT. 24. Lehigh breached the implied warranty of merchantability and implied warranty of fitness for a panicular purpose by its failure to provide Hempt with white cement that could be used to produce white concrete for white median barriers in conformity with Penn DOT regulations, during the period of July, 1994, through September, 1994. 25. Hempt suffered d.",.. as a result of the bruch of the impli8d warranties by LehiGh in an amount of .1 US39,04. ~t being the amount that Hempt wa. required to pay to OuBrook for the rejected median bw'riefs, 6 WHEREFORE, Hempt demsnds judgment against Lehigh in the amount of $11,639.04, plus interests plus costs of suit. Respectfully submitted, r ' :A J' I /. L/'!4...i' I !. K..: ,_ MICHAELl. BANGS / 302 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court 141263 7 'F=::> ~' ' ;::;..' ,'-;: "~,, . .. :,'~~~~&~?J::.. ~_ :"" ..c ,:; ~~ ' "'-;-':~' -.,' ~ift,::,'" ;~';."1 . ...:- ;~~~':fJg~:,-~~:_ "' .,.~, ,;;' :'f:.:;:'.-"'::-, -. -,;'.:< ._ c 5:"!::.u-;).J.- _~"i':!~ "-' ~;f~';\~; ,,0.- 9~ ,-;~::~ 7 '~i~ -,,' ,'-" :,;:!) '(:;, \.t~ C:;>' ~ ,'~ ::1, 'C;J' .u ~" ': ,,;:i--_'<.O '-;~-' <;', '~L'~t:-~/ ..- ,,-.<~~-,;.,:;~~~' -, .~..,,' j:)., -,~'- ,':_: .' t-- ". <~ '" ,~'" -"\' , c";:,,._..J'i ~i;. ~~ ,,1 ~('('\- ~'~'~ r-b~ ~~~ ,'i-," -.'. ,- "i .,,,:-;;,';'" '_.~' ,."'--, ~ ,;: -; ,,;;-~ ' "~, < ~._-",: ".~'. ::~:',: =-, "j _ -, ~~,'~;;~,t~,~"" ~:",,~~:,..,~:'., "", ,;;/:;",\~:., ,', <.J'" , c,', , .,' <,' "cf."f," \ ".,~ ~ " ,~,~' ::,~:)~,~" ._,:~--~-;t< ~', ,,~- ---~*.. -:- :./~:\ .. '1, ""r. '1\11"., ~~\t \, ,Ii i \ ---.---' ...-,- ",..i:<"""" . 1.-: -. In:: C~urt cr C.:rnrn::;-, -i _ ,.;:_r- . .--~ . ~- -I - ., \..:J.~.': :::~:r1=n= .., I ... .-..,/ ......_lw... I I ::-=.....'!""t"C'yl,,--: _ . _.u..... ...,...... Hempt Bros., Inc. ,OM ., ::. Lehigh Portland Cement Company ~c. 96-5441 Civil Term ::- :-;0"'. Oct. 3, 1996 :9_ !. S:-::Z:"::=:: O~ C~G::::.!..)_';-:) CO~-:i':""!. ?-L.. :~ ~ .:.! c::..:= ::.: :.:-':: ci Lehigh C:t::.:"! ~ ---. ---- :s '.V:;:, := . , ..-..--- -;:---- . ' :--i === ~ . == -- ..~-- . - :-...:.x ~f :.:: ':t_:_~ ---. r~: .-~~~ !::~-~ ~ C:=::e-.::: C.:c:r. ?:. .l~" -.. . - . .~C2.i'1.. Qr ::::~. ~~ :icw, ~~ .. o..:...~ '.t. .---' - -- -'..- :.:: wt= ~M -:--.. .. =r ' - :: :.:.:"--: 1 c::::'I' ci == "'J.' . -t .. ...",,:; .. . i::..~ . . .-- --,... ;:) :::.: --"'-- ~~- -- ~-- !o J.::.:W::. - lb::!' ci ~lLL"', ::.. cern :-..::: =~ t:t:=:--= ~..-;o :.:...--.\.-::z . . :::: :::.:.! :...."'! :E 1:- ~c::..!..~! .1-.- ."::_.\...~ ------. s '-" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DMSION - LAW HEMP!' BROS.. INC" Plaintiff ) ) ) No, 1996-5441 CIVIL TERM ) ) ) ) ) ) vs. LEHIGH PORTI..AND CEMENT COMPANY. Defendant PRAECIPE FOR APPEA~CE TO THE CLERK OF SAID COURT: Please entef my appearance fOf the Defendant. LEHIGH PORTI..AND CEMENT COMPANY. In the above-captioned action, GROSS. McGINLEY. LaBARRE & EATON Dated: k :.Ol3't, BY:~ MALCOLM J. GROSS. ESQUIRE 33 South 7th Street P,Q. Box 4060 Allentown. PA 18105-4060 (610) 820-5450 1.0, #08137 ..-.. .....", 1 ~ <:) )0- N ~~;. - .. -") l~ .:z ;;l;)~ ~ :r; ')t/: 0.- ~~~ r-: CD :~ r: N ,/2 ~t~ ~ .,1,;:) J~ (.;l :.<:,Q.. C a ~ \D 0"\ concrete median barriers for use of Pennsylvania highways, Lehigh. after reasonable investigation. lacks knowledge or information sufficient to form a belief as to the truth of the averment. 6. Admitted. 7. Admitted. 8, After reasonable investigation. Lehigh lacks knowledge or information sufficient to form a belief as to the truth of averment. 9, After reasonable investigation. Lehigh lacks knowledge or information sufficient to form a belief as to the truth of averment, 10. After reasonable investigation. Lehigh lacks knowledge or information sufficient to form a belief as to the truth of averment. II, After reasonable investigation. Lehigh lacks knowledge or information sufficient to form a beliel as to the truth of averment, 12. After reasonable investigation. Lehigh 1acb knowledge or information sufficient to form a belief as to the truth 01 averment. 13. After reasonable investigation. Lehigh lacks knowledge or information sufficient to form a belief as to the truth of averment. -2- mwaJ 14. The averments of Paragraphs 1 through 13 of 1his Answer are incorporated herein by reference as If fully set forth. 15. Admitted, 16. The averment that Lehigh expressly ww lanled to Hempt is a conclusion of law to which no response is required under the Po. R.C.P. To the extent it is determined that the averment is an allegation of fact rather than of law and that a response is therefore required, the averment is denied as phrased. Lehigh warranted to Hempt that. used properly. the white Portland cement would conform to specifications established by Penn DOT and specifications established by industry independent technical organizations, The white Portland cement sold by Lehigh to Hempt conformed to all such specifications. 17. The averment of breach of express warranty is a conclusion of law to which no response is required under the Po. R.c.P. To the extent it is determined that the averment is an allegation of fact rather than of law and that a response is therefore required. the averment is denied, The white Portland cement sold by Lehigh conformed to the specifications described in Paragraph 16 above. U Penn OOT rejected the concrete median b:miers manufactured by DuBrook. and If DuBrook in turn rejected the concrete manufactured by Hempt. the nonconformity which was the basis of such rejections was caused by one or both of defectiVe -3- manufacture of the concrete by Plainllff. or defecllve manufacture of the median bcmierB by DuBrook, 18. The averment of damages sustained as a result of breach of express warranty are conclusions of law to which no response is required under the Pa, R.C.P, To the extent it Is determined that such averments are allegations of fact rather than of law and that a response is therefore required, the averments are denied, for the reasons more fully set forth in Paragraph 17 hereof. incorporated herein by this reference. WHEREFORE. Defendant. Lehigh Portland Cement Company, prays Your Honorable Court to enter an Order and Judgment dismissing Plaintiffs Complaint. COUNT II 19, The averments of Paragraphs I through 18 hereof are Incorporated herein by reference as if lully set forth. 20. The averments that Lehigh is a 'merchant' as thatlerm IS defined by the Umform Commercial Ccxie (the 'Code'), and thai Lehigh sold white Portland certJillnt under an 'lmplted warranty of merchantability.' are conclusions of law to which no reaponlllt Is required under the Po. R.C.P, To the extent it is determined that the averments are allegalloll8 of fact ralher than of law and that a response is therefore required, then. ewn II it IS determined thallehigh 18 a merchant with respect to the sale of white Portland cement. and even If it is determined that a .... .. warranty of merchantability was implied in the sale. Lehigh. under the Code. impliedly warranted only that the goods were fit for the ordinary purpose for which such goods are used, The white Portland cement sold by Lehigh conformed to that description and warranty. and if the concrete median barriers failed to conform to Penn DOT specifications. the nonconlormity was caused by one or both of defective manufacture of the concrete by Hempt. or defective manufacture of the median barriers by DuBrook, Further, the parties by their course of dealing and/or by the documents evidencing the contract. validly disclaimed all implied warranties. and the only warranty made by Lehigh. as aforesaid. was that the white Portland cement would conform to Penn DOT specifications and to the technical specifications generally accepted in the industry. which warranty was performed by Lehigh. 21, The averment that Lehigh impliedly warranted that the white Portland cement sold to Hempt was fit for the particular purpose that it was to be used by Hempt, is a conclusion of law to which no response is required under the Po, RGP, To the extent it is determined that the averments are aIlegations of fact rather than of law and that a response is therefore required. the averments are denied, Under the Code, an implied WuiJQUty of fitness for Q particular purpose arises only i1the buyer is relying upon the seller's skill or judgment to select goods suitable for the buyer's particular purpose. Hemp! did not rely upon Lehigh to select the goods, Instead. Hempt selected and specified the purchase of Lehigh white Portland cement, Further, -s- even if an implied warranty of fitness for a particular purpose arose In the sale. the goods sold by Lehigh conform to that warranty, and if Penn DOT rejected the concrete median barriers. then the nonconformity was caused by one or both of defective manufacture of the concrete by Hempt. or defective manufacture of the median barriers by DuBrook, Further. the parties by their course of dealing and/or by their documents evidencing the contract validly disclaimed all implied warranties and the only warranty made by Lehigh, os aforesaid. was that the white Portland cement would conform to Penn DOT specifications and to technical specifications generally accepted in the trade. which warranty was performed by Lehigh. 22, The averment of lack of merchantabihty is 0 conclusion of law to which no response is required under the Po. R.C,P. To the extent it is determined thot the averment is on allegation of fact rather than of law and that a response is therefore required. the averment is denied. for the reasons more fully set forth in Paragraph 20 of this Answer and incorporated herein by this reference. 23. The averment of lack of fitness for a particular purpose is 0 conclusion of law to which no response is required under lhe Po, R.c.P. To the extent il is determined that the averment is an allegation of fact rather than of law and that a response is therefore required, the averment is denied. for the reasons mora fully set forth in f\.tayl uph 21 of this Answer and incorporated herein by this reference, ..1\.. - --,., 'J8TlBCATE Of SERVICE MALCOlM J. GROSS, ESQUIRE. hereby certifies that he served a true and correct copy of the ANSWER. upon the following persons listed below. by first class U.S. mail. postage prepaid. on November 27, 1996: MICHAEL L BANGS, ESQUIRE 302 SOUrH ISTIi STREET CAMP Hlll. PA 170 11 GROSS, MCGINLEY, LABARRE Be FATON, UP BY: ~ --' MALCOlM J. GROSS. ESQUIRE Attorney for Defendant, Lehigh Portland Cement Company 33 South 7th Street P.O. Box 4060 Allentown. PA 18l0S-4060 (610) 820-5450 to. #08137 -.. t'I.. _. t1'~.t_~.... -9- -- -- -,: -- I ~ c i I : ':,,",,'; I & ::,.. D . :J> 2 III ii i H . Sa .