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Home My WebLink About00-02148PIPER MARBURY RUDNICK & WOLFE LLP Elizabeth J. Feeney Brett D. Feldman Identification Nos.: 76739/82689 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 215-656-3300 Attorneys for plaintiff, Canam Steel Corporation CANAM STEEL CORPORATION P.O. Box C-285 4010 Clay Street Point of Rocks, MD 21777-0285 Plaintiff, V. D.F.S. COMPANY, INC. East Industrial Park P.O. Box 172 Millintown, PA 17059 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. uv • a /Y,? etxrr:( t¢ - CIVIL COMPLAINT NOTICE TO DEFEND 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 PAPER 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 (800) 990-9108 PIPER MAR13URY RUDNICK & WOLFE LLP Elizabeth J. Feeney Brett D. Feldman Identification Nos.: 76739/82689 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 215-656-3300 CANAM STEEL CORPORATION P.O. Box C-285 4010 Clay Street Point of Rocks, MD 21777-0285 Plaintiff, V. D.F.S. COMPANY, INC. East Industrial Park P.O. Box 172 Miflintown, PA 17059 Defendant. Attorneys for plaintiff, Canam Steel Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. &0 - a / V F Tt.,,.- COMPLAINT Plaintiff, Canam Steel Corporation ("Canam"), by and through its counsel, Piper Marbury Rudnick & Wolfe LLP, states as follows: 1. Plaintiff Canam is a corporation organized under the laws of the State of Delaware, having its principal place of business in Point of Rocks, Maryland. 2. Upon information and belief, defendant D.F.S. Company, Inc. ("D.F.S."), is a corporation organized under the laws of the Commonwealth of Pennsylvania, having its principal place of business in Miflintown, Pennsylvania. 3. Canam and D.F.S. entered into a contract under which Canam agreed to provide certain steel joists and joist girders for the project known as Pennsboro Commons, Giant Store #113, in Enola, Pennsylvania (the "Project") in exchange for the payment of $291,640.00 (the "Contract"). A true and correct copy of the Contract is attached as Exhibit "A." 4. Under the terms of the Contract, D.F.S. agreed to pay Canam $ 291,640.00 for the materials to be provided by Canam. The Contract was signed and initialed by the President of D.F.S., Mr. Gary Tweedlie, at all relevant points. 6. Canam has fully performed its obligations under the terms of the Contract, by supplying materials as specified in the Contract. 7. D.F.S. has failed to fully pay Canam for the materials provided for the Project under the Contract. The amount owed to Canam by D.F.S. under the Contract is at least $26,298.90. COUNT I - BREACH OF CONTRACT 8. Canam incorporates the allegations of paragraphs 1 through 7 by reference. 9. By failing to pay the amounts owed to Canam for materials supplied to the Project under the Contract, D.F.S. has breached the Contract. 10. As a direct and proximate result of D.F.S.'s breach of contract, Canam has suffered damages in the amount of $26,298.90. WHEREFORE, plaintiff, Canam Steel Corporation, demands judgment in its favor against defendant, D.F.S. Company, Inc., in the amount of $26,298.90, plus pre judgment interest and the costs of this action. -2- COUNT II - UNJUST ENRICHMENT 11. Canam incorporates the allegations of paragraphs 1 through 10 by reference. 12. By failing to pay the amounts owed to Canam for materials supplied to the Project under the Contract, D.F.S. has been unjustly enriched. 13. As a direct and approximate result of D.F.S.'s improper retention of materials without payment to Canam, Canam has suffered damages in the amount of $26,298.90. WHEREFORE, plaintiff, Canam Steel Corporation, demands judgment in its favor against defendant, D.F.S. Company, Inc., in the amount of $26,298.90, plus pre judgment interest and the costs of this action. -3- Respectfully submitted, Bltw D. fA? Elizabeth J. Feeney Brett D. Feldman Attorneys for plaintiff, Canam Steel Corporation Piper Marbury Rudnick & Wolfe LLP 3400 Two Logan Square 18'' & Arch Streets Philadelphia, PA 19103 (215) 656-3300 Anthony L. Meagher Piper Marbury Rudnick & Wolfe LLP 6225 Smith Avenue Baltimore, Maryland 21209-3600 (410) 580-3001 Of Counsel Dated: April 6 , 2000. -4- VEIi1N'ICATION 1, Mary Anne Davenport, declare and say that I am Credit Manager, of Canam Steel Corporation, the plaintiff in this action, and that the statements made in the foregoing complaint are true and correct to the best of my knowledge, information and belief, and that the statements in the complaint are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unworn falsification to authorities, Mary Anne`Davenport Dated: April 2 , 2000. r/aIr EXHIBIT "A" rp,t C Qtrf? atCl1 ,ar?aJewa.rm?tnr na a)xDaxl fan- TM ttiHia -Cm. A t - CWAUJOaxvU ? s t-.- Uhydaisbwdac 11 CashTdowM 13 liatw]ihadsY MA'JJ"QUOTM DREGM tPSiameyYlWadtts Y adwisawbw'i". Ia1tAl7flmCfr3vegfby1C?10{`?rta? 1•lW ?•. ro<KtpLs7otm [tl4tsi JblJs•g9s b1*,K9 Yww1116so?dtdNffddaWeb •? Pa filBoksJsLla ` ' auj,Tm -W ? Cl W.6.sn.".vogf"IMA Osa ?. YaRDIAIV?aJ?Yt ?? ? tth?s>ss?i4ata f' 1 ^• laJa7a04Gs3. OsrtNrowt?t??? i- dw.C?aiwfYpe?wbbadclY =° f?dbaraca?mfgbasceerd: ?a?sMpduNintptfrYYw[p[Jtwl?fk ;. ? IF a t _r? i QQ • assrt?..dstesm?aatatlY7e51LW_wasf `' -,? ' Cafrotfas`drs><fwaedrs}vlCsah wYifdudsaa ;"?ss'"•eo t a ' "?? pYCaisastx4artlf. ?... -. ?ttai .ftoas- AC?tsWklIIbIIQAtdsaasd4ddo?a?a! t. star _ Pdsa>'. ACS.EICCLQSIOkSAPIDQUA?LCATRDTOQNCA11A1LQUDIII 'r?fsyd0v?elCOa>v06tn110 ?d - DAUCiG2,9tA1tEArlIATOFEk[9CON1YdLT• apQw+dOadi aaft6ars?mdateofOKre or AW441WOC 419=11 Absvs ub=dw&wib lgeq !m IA-90teOdw whnWsd6?= 1nmTcQO n? m-1?-n n&14M s zm? CdasdUwTu7s?tJCBS«t7NF '?.le?roersromorkns?1gqp0?WCCwYLCwrmIvY ;pgp?ktfaasaetaplatyjpa mat4 dNS f0itoa®d 5 W w .i?. ?sast sssaWgrAtt to ls9?J? s W ? bsrl AlcawasYdss?fW ? . sRNStloiOW?di17'?bixiW6%+Os Q NR9sfW. _ balsWf Cbla7tlYJamts sm C c rbm: `?° Jima C+ - • f gable )RU4?tsaaaYalt k1?Y, Cl [Jyp Dr• •"- ? ? 11 e>rarast`uma.' tldx _te.r:a_s.. _ Q Taudifswa6a[bstRbM3adYttais3rdlogatdm Avart??nt??miCmMdLidfliJiw®ckmi4?.araakfP Jqw Wo ALIOWfD. Fminrb?NavlefviaA??•wwvpas/0dmsx/+a?V+'alranrra?nrr.?vdwvoa[aorsxtoiaxals{t?4c t cl, r ( • 3 --y .. r li i . N 0.r n a s ? vj c aC d F? I SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2000-02148 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CANAM STEEL CORPORATION VS D F S COMPANY INC 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: D F S COMPANY INC ATTN: GARY TWEEDLIE but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT & NOTICE On May 8th , 2000 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 DEP. YORK CO 31.60 .00 68.60 05/08/2000 PIPER, MARBURY, So answ R./,Thomas Kline Sheriff of Cumberland County RUDNICK, WOLFE Sworn and subscribed to before me this JS day of ,2 r A. D. / / Prothonota'rj/ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2000-02148 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CANAM STEEL CORPORATION VS F S COMPANY INC R. Thomas Kline v 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: D F S COMPANY INC ATTN: GARY TWEEDLIE but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of JUNIATA County, Pennsylvania, to serve the within COMPLAINT & NOTICE On May 8th , 2000 , this office was in receipt of the attached return from JUNIATA Sheriff's Costs: Docketing .00 Out of County 9.00 Surcharge .00 DEP. JUNIATA CO 11.33 .00 20.33 05/08/2000 PIPER, MARBURY, So answepff RG Thomas Kline Sheriff of Cumberland County RUDNICK, WOLFE Sworn and subscribed to before me this day of a bcry A. D. :?? OaK ?//_l -` Protnondtdry In The Court of Common Pleas of Cumberland County, nia Juniata Co. Sheriff Canam Steel Corporation VS. APR 1 1 2000 D.F.S. Company, Inc. No. 20-2148 Civil MaffJintran, 'EAR i`ime, Now, 4/10/00 20 ® 40 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Juniata County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon _ at ***** RETURN UNSERVED PER CUMBERLAND COUNTY SHERIFF'S DEPT. **** by handing to a and made known to Sworn and s cribed b fore me this y of '2006 -bHA1ST1Nt4=S &WARNER DEPUTY PROTHONOTARY WIC Connmi"lon Expires First Mdnday in Jan 2004 20 , at o'clock M. served the the contents thereof. Sanswers, a, ?v Sheriff of Juniaa ? County, PA COSTS SERVICE(DKT.& RET) $ $ 9.00 MILEAGE/POSTAGE .33 AFFIDAVIT 2.00 $ 11.33 REFUND $ 63.67- copy of the original H a !m ATTEMPTED SERVICE ? -4 m DATE TIME MILEAGE INITIALS IT1 m m 1 _ < m 2 G p a O ? 4 O 5 C D ? ? -4 i7 m D o m m v m CA D C) ® m < 3D m CD W O z COUNTY OF YORK SERVICE CALL 1 OFFICE OF THE SHERIFF (717) 771-9601 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN g 1. PLAINTIFF/S/ 2.000RTNUMBER 20- Inc Notice & Complaint SERVE _ _...._...__.._, __........., --... _...... -- - -- ......_.. _...._. _..... ------ • -... - W D.F.S. Company, Inc., Attn: Gary Tweedlie, President 6. ADDRESS (STREET OR RFD WITH BOX NUMBER, APT NO., CITY, BORO, TWP., STATE AND ZIP CODE AT 10 Big Oak Road, Dillsburg, PA 17011 7. INDICATE SERVICE: O PERSONAL ? PERSON IN CHARGE ?DEPUTI5l mfjitCf TM¢ ? 1ST CLASS MAIL ? POSTED ? OTHER NOW 4 / 2 4 / 0 0 191, _ I, SHERIFF OFN=X COUNT,% Papdo hereby de9104! the sheriff of Y o rx COUNTY to exe 1 re r f?CC, to law. This deputation being made at the request and risk of the plaintiff. e HEnIFF O g78RIS! COUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cumberland u- a-Q- j OUT OF COUNTY CUMBERLAND ADVANCE FEE PAID BY CUMBERLAND COUNTY SHERIFF NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any Dlaintiff herein for any loss, destruction, or removal of any DmDertv before sheriff's sale thereof. Elizabeth J. Feeney, Esq. and Brett D. Feldman, Esq. 19103 ... ._l nip TT (215) 656-3300 4/7/00 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). Cumberland County Sheriff 13.1 acknowledge receipt of the writ SIGNATURE OF AUTHORIZED CLERK 14. Date Received 15. Expiration/Hearing Date orcomplaint asindicated above. J. Ludwig 4/26/00 5/7/00 16. HOW SERVED: PERSONAL( ) RESIDENCE ( ) POSTED( ) POE ( ) SHERIFF'S OFF ( ) OTHER ( ) SEE REMARKS 17.)J I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc, named above. (See remarks below.) 1B. NAME AND TITLE OF INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date of Service 20. Time of Service Miles, Int. 22. REMARKS: f? \32 e 3. Advance Costs 75.00 24. ServiceCosts 9.00 25. N/F 5.00 26. Mileage 15.60 27. Postage 28. Sub Total 29.60 29. Pound 30. NotaryFee 2.00 31. Surcharge 32. Total Costs 31.60 33. Cost Due Refun 43.40 34. Foreign County Costs 35. AdvanceCosts 36. Service Costs 37. Notary Cert. 38. Mileage/Postage/N.F 39. Total Costs 40. Cost Due or Refund 41.AFFIR E fib Pub_*d ` 44.Signature of - - SO ANSWER. 47. Dale 0 , YorK Ufl De p. Sheriff _ 42. day of My ' Sion Ex 'ree A _ 120, 2P'" 00 45.Signature of York 48. Date County Sheriff 10 _ William M. Hose 0 5/3/00 - Prothon /Notary P 46. Signature of Foreign 49. Date MY COMMISSION' EXPIRES -- County Sheriff 50.1 ACKNOWLEDGE RECEIP7OF THE?SHERIFF'S RETURN SIGNATURE 51. Date Rece ived - Ut AUI HUHIGCU IC UINU AU I HUHI I Y ANU I I I Lh 1. WHITE - Issuing Authority 2. PINK - Attorney - 3. CANARY - Sheriffs Office 4. BLUE - Sheriff's Office 11 v n.j 2r Ud 92 add Jj1yjHS .103.1 i.Ij p -'!! Nlsxmvtw?xa?i0.?xeeue. mm o,.:revn`zm _ r? ..I? ?`sx9??iiq?6!+"'Ste3,?'{tk?*'+::i;v7mf?rw a.s3?.§•R.?a?f. '?ss?ihy'?:%s-;w::,r .•,. ? ..??_ ?. 'Faa?JFnS!k?im,?. COUNTY OF YORK SERVICE CALL OFFICE OF THE SHERIFF (717) 771-9601 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 4b CIAT L.:irtam Steel Coy norat.1.un 4. TYPE OF WRIT OR COMPLAINT 3. DEFENDANT/S/ Nc,` iY ?. iiip.l C. fit SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD. W Compaesy, iric., Attri. racy Tweedl.7e, 1_oS-es-ldG.;.t_. 6. ADDRESS (STREET OR RFD WITH BOX NUMBER, APT NO., CITY, BORO, TAP., STATE AND ZIP CODE AT i0 B-Lg Oak Road, Di':.7-huccf, € il, 1 ;'r1 i 7. INDICATE SERVICE: O PERSONAL ? PERSON IN CHARGE X DEPUTIZC ti nthagJ RTTa WAL ? 1ST CLASS MAIL ? POSTED ? OTHER NOW 1-' A / 0 19 1% Oh'k11DIliC COUNTY, PA, do hereby deputize the sheriff of ©= K COUNTY.to c)tecute this Writ and make return thereof according - to law. This deputation being made at the request and risk of the plaintiff. ° , " - t SHERIFF OFO COUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: - - '> ti .Lc %i '. y OUR OF, COUNTY kDVAbCE FEv PAID BY CUMFsEff-AND CA Vl.Y S_ F NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Anyydeputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in.custody "of whomever. is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein. for any loss, destruction, or removal. of any.property beforesheriira sale thereof. - - 9. TYPE NAME AND ADDRESS of ATTORNEY/ORIGINATOR ahd SIGNATURE - 1/ t ,1 - 10. TELEPHONE NUMBER.. 11. DATE FILED F:llzabet? J. Feeney, ':^sq, av !Bract D. Feldff4ii, Esq. 191(}3 Ian:, 1'--„-.._- 10>1 _-. R._...., 1- 1 (215) 656-330(4 4/7/00 Cun:iberland Com-ty Sheriff 13.1 acknowledge receipt of the writ or complaint as indicated above. 16..HOW SERVED: PERSONAL( ) 17 1 I"hereby certify and return a NO area must be be aranAI UHt Ur AU I HUHtetV ULtHK 14. Date Received - 15. Expiration/Hearing Date J. Ludwig 4/26/00 5/7/00 RESIDENCE( ) POSTED( ) POE ( ) SHERIFF'S OFF( ) OTHER ( ) SEE REMARKS f FOUND because I am unable to-locate the individual, company, corporation, etc, named above. (See remarks below.) L SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date Tffit.Date me of Service Int. Date Time Mlles Int. Date Time Miles Int. Date Time Miles Int. Date. Time Miles meMilesInt. v-, J l , -Al 23. Advance Costs 24. Service -Costs 25. N/F 26. Mileage 27. Postage 28. Sub Tdtat 29. Pound 30. NotaryFee 31. Surcharge. 32. Total Costs 33. Cost Due or Refund 75»Ot3 00 00 5,60 29.60 2.r0 31.60 43.4E 34. Foreign County Costs 35: Advance Costs 36.. Service Costs 37. Notary Cart. 38. Mileage/Postage/N.F 39. Total Costs . 40. Cost Due or Refund v a -,; s w. - SO ANSWER. 41. AFFIRMED and sgbacribed to before me this *.. 3rd 44. Signature of - - . 47. Date De p. Sheriff 42. day of 45. Signature of York 48. Dale 43. / ,, r "= 9 L ' T, x' County Sheriff - , 1.7. 2.E17C{ M. b3Gk5a t.°7E °; , 1-A" ' '°_ 5/3/00 N ` Protnon w./ umry Ic - "46. Signature of Foreign 49 Date MY COMMISSION EXPIgE Coun Sheriff . ..................??....?...ow?.r","..r,..?....?,..... .. ,......,r... .?,....... one - - 151. Uale Received OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Issuing Authority. 2. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE Sheriff's Office - - - 05i0Si00 15:54 SHERI=FS DEPT.YCRK 4 717 240 6397 NC.695 903 DEFENDANT D.F.S. Company, Inc. DATE ISSUED 4/27/00 DATE SERVE BY 5/7/00 NOTE; USE HIS LOG FOR SUCH INFORMATION AS A PHONE NUMBER, DIFFERENT SERVICEADORESS. LEFT IMPORTANT NOTICE, ETC. WHICH WAS OBTAINED AT kSERVICE ATTEMPT, SERVICE ATTEMPTS s-1-00 6vsrrjE55 AT `r4i:s Apps s rs HYFAS \JQ erns E, Er-lPLb\(F&S Air 7PTS 'Ii$uSTNlw^S:j apu75ED /dE.rG-oe 4EAfb oil D 5 co m?ANY i 2. - J. I ,j 3. j 4. j 5. I 6. GENERAL INFORMATION USE BELOW SECTION FOR ADDITIONAL INFORMATION UNRELATED TO ACTUAL SERVICE ATTEMPT. NEVER MAKE ANY NOTATION ON THE ACTUAL SERVICE FORM, EXCEPT NOTING A DIFFERENT COMPLETED SERVICE LOCATION. I MAY 0B 2000 15:55 7177719957 PRGE.03 05/09/00 15:54 - SHERIFFS DEPT.YCRK 4 717 240 6397 NC.695 902 \vil.luun hi, Hose Sheriff Reuben B. Zcager, ChiefDepury, Operations York County Courthouse York, Pcnnsylvaoia 17401 717-771-9601 DATE: S 0 D 11 TO: Postmaster Agency Contra] No. ADDRESS INFORMATION REQUEST Sheriffs Office Please famish this agency with the new address, if available, for the following individual or verify whether the address given below is one at which mail for this individual is currently being delivered. If the following address is a Post Office box, please furnish the street address as recorded on the boxholder's application form. Name: nF5 a rtPA tl Y Last Known Addresi: 'OrLLSR u rz 1( I certify that the address information for this individual is required for the performance of this agency's official duties. William M. Hose j Sheriff 6f York C6unty FOR POST OFFICE USE ONLY Q Mail is Delivered to Addres Given 0 Not Known at Address Given pQ Moved, Left No Forwarding Address Q No Such Address Other (Specify): Agency Retura Address New Address &JOr Boxholder's St. Address Postmark/Date Stamp: Address Information Request (Required Format) Exhibit 352,44b MAY 09 2000 15:54 Peter J. Mangan Solicitor James V. Vangreen Chief Deputy, Administration 9s. A,V 7177719957 PA3E.02 PIPER MARBURY RUDNICK & WOLFE LLP Elizabeth J. Feeney Brett D. Feldman Identification Nos.: 76739/82689 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 215-656-3300 CANAM STEEL CORPORATION P.O. Box C-285 4010 Clay Street Point of Rocks, MD 21777-0285 Plaintiff, V. East Industrial Park P.O. Box 172 Attorneys for plaintiff, Canam Steel Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 0-0 - a l y P ?( 7~.?.U Miflintown, PA 17059 t? Defendant. ° M rn CIVIL COMPLAINT rv o "' rn rn ?-nnrn NOTICE TO DEFEND a a cn m ? rn You have been sued in court. If you wish to defend against the claims set forth in the folloNmg pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a -n written appearance personally or by attorney and fling in writing with the court your defenses or o%fections 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 PAPER 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 (800) 990-9108 TRUE CORY FROM RECORD in Testimony whereof, i here unto set my haoo and the seal of said Court at Carlisle; Pa. Ihl&'T ). ' day off 0- u T- n 1.. A - Prothonotary PIPER MARBURY RUDNICK & WOLFE LLP Elizabeth J. Feeney Brett D. Feldman Identification Nos.: 76739/82689 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 215-656-3300 Attorneys for plaintiff, Canam Steel Corporation CANAM STEEL CORPORATION P.O. Box C-285 4010 Clay Street Point of Rocks, MD 21777-0285 Plaintiff, V. D.F.S. COMPANY, INC. East Industrial Park P.O. Box 172 Miflintown, PA 17059 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 0-0 - -2 l'4 P C? -r.t,i COMPLAINT Plaintiff, Canam Steel Corporation ("Canam"), by and through its counsel, Piper Marbury Rudnick & Wolfe LLP, states as follows: Plaintiff Canam is a corporation organized under the laws of the State of Delaware, having its principal place of business in Point of Rocks, Maryland. 2. Upon information and belief, defendant D.F.S. Company, Inc. ("D.F.S."), is a corporation organized under the laws of the Commonwealth of Pennsylvania, having its principal place of business in Miflintown, Pennsylvania. Canam and D.F.S. entered into a contract under which Canam agreed to provide certain steel joists and joist girders for the project known as Pennsboro Commons, Giant Store #113, in Enola, Pennsylvania (the "Project") in exchange for the payment of $291,640.00 (the "Contract"). A true and correct copy of the Contract is attached as Exhibit "A." 4. Under the terms of the Contract, D.F.S. agreed to pay Canam $ 291,640.00 for the materials to be provided by Canam. The Contract was signed and initialed by the President of D.F.S., Mr. Gary Tweedlie, at all relevant points. 6. Canam has fully performed its obligations under the terms of the Contract, by supplying materials as specified in the Contract. 7. D.F.S. has failed to fully pay Canam for the materials provided for the Project under the Contract. The amount owed to Canam by D.F.S. under the Contract is at least $26,298.90. COUNT I - BREACH OF CONTRACT 8. Canam incorporates the allegations of paragraphs 1 through 7 by reference. 9. By failing to pay the amounts owed to Canam for materials supplied to the Project under the Contract, D.F.S. has breached the Contract. 10. As a direct and proximate result of D.F.S.'s breach of contract, Canam has suffered damages in the amount of $26,298.90. WHEREFORE, plaintiff, Canam Steel Corporation, demands judgment in its favor against defendant, D.F.S. Company, Inc., in the amount of $26,298.90, plus pre judgment interest and the costs of this action. -2- COUNT II - UNJUST ENRICHMENT 11. Canam incorporates the allegations of paragraphs 1 through 10 by reference. 12. By failing to pay the amounts owed to Canam for materials supplied to the Project under the Contract, D.F.S. has been unjustly enriched. 13. As a direct and approximate result of D.F.S.'s improper retention of materials without payment to Canam, Canam has suffered damages in the amount of $26,298.90. WHEREFORE, plaintiff, Canam Steel Corporation, demands judgment in its favor against defendant, D.F.S. Company, Inc., in the amount of $26,298.90, plus pre judgment interest and the costs of this action. -3- Respectfully submitted, IAAU D- UL Elizabeth J. Feeney Brett D. Feldman Attorneys for plaintiff, Canam Steel Corporation Piper Marbury Rudnick & Wolfe LLP 3400 Two Logan Square 18'' & Arch Streets Philadelphia, PA 19103 (215) 656-3300 Anthony L. Meagher Piper Marbury Rudnick & Wolfe LLP 6225 Smith Avenue Baltimore, Maryland 21209-3600 (410) 580-3001 Of Counsel Dated: April 6 2000. -4_ VERMCATION I, Mary Anne Davenport, declare and say that I am Credit Manager, of Canam Steel Corporation, the plaintiff in this action, and that the statements made in the foregoing complaint are true and correct to the best of my knowledge, information and belief, and that the statements in the complaint are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unworn falsification to authorities, Mary Anne Davenport PUL Dated: April 2 2000. EXHIBIT "A" lalac ?, ?Qeli?ta canam A e? sAtmCoNrOACI Sl Tor H" ga1mgmpat t,.V&A- ISTWAMWMIX. A 't,,,y„e ? a CAxAMJOD ? r gt+latxaMpdor. I? C?`aSdiaa? b J.a:9.mladeS' .: MA=R=QU=Ck DitTD6NGs s1? q fmyyymq? Y &tabo dL*;'fdu?SaCiiEvey`btrak t[W .??. h&l(slbs7dm t&%ds lftjD/e hvda Tw?ip6e.sellfdtdN6f OY8 f%lAbfde h%L `tlv4u' am& Q8e ? ?j fv lwefg?vtl 4)'wtLleada?}1?4a. ?. IVAMRlotama M4-434 Yeat?e? dlYtb s' .? lalala0ltCets. 1tlLi•'a!o ? d •Osw aat?bfriclY •?}??° e i AL-EMP aso bayarA* ' a rd14 t fa t Sys dy- Al?oatl?Ni+ f. Y5 4iLd?ib i, ... ?-. iOSAda?ditOli6lRittSQJeU{l0/tW7tNL7t ? -'W - ' - . ? ? ?! t? aYdatllL tessiedatdo?a ? ...oac -.imaso Ai1?W1dQDflelAdtadfiLdedllo?f+sa t'. ALJ.E==MAMQVA MCWMMCONCOAMQU= TbLDdCataa?Idois ?tS? Dtimla-l. MEAlpmrOF2yi(9CO MALT. Wasedeyslomdettof mt ea COMU&CAC*d JMJWa ld4deC*Ucf ur.s,.a,....c--ids as ]lima *&US taag3ml&-A(rw&4tuO mum NMI 931-M umam GM &"it LY- 1l iumolm DM t0.ISAi nalut S tduuiLttrSalemsMl:iJC88iR0li6 ?ixwMYPM1a'mvAm:amarima'?Cwrm!'? earaa?sra..s?nfaw.?f m. 4aemii7i+oas .ir. ,?,. ?IjZ?iNtlafaW!]?IC tf? ? ttrkl 75Ycf?4•'naflai[(o`fuet ?Lkadelfllaf Q Yi)k?9Ra'ea6tfN%d?PIQ?t;$1?tdsS1M _ a ' Oc F1Prm lida7atuear. rrrm n FS _C te..JA7rf Q pfW'OWactV'IasRtlo?Me Tldz ai, - a - ?A .. Q OrAM ?WSbYtWe?blutdmdYCri47YdCag00aim. yawm O*O^sWNA d'Jtdi%JimwaAmigSsaarrblP FmLnfb.Jr" alawlembi $akG qv?r?'? Itrdmsgl+aetjvd+aweamN+e wrr?+e+dw:raf[oorAUaaataa{MtliM. • 's i. I D /r 1 lut ugh:; i; ?aaermc?=??n xvan?we? e1?RJ??e _ PIPER MARBURY RUDNICK & WOLFE LLP Elizabeth J. Feeney Brett D. Feldman Identification Nos.: 76739/82689 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 215-656-3300 CANAM STEEL CORPORATION P.O. Box C-285 4010 Clay Street Point of Rocks, MD 21777-0285 Plaintiff, Attorneys for plaintiff, Canam Steel Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL TERM V. D.F.S. COMPANY, INC. East Industrial Park P.O. Box 172 Millintown, PA 17059 Defendant. NO. 00-2148 PRAECIPE TO REINSTATE COMPLAINT-CIVIL ACTION TO THE PROTHONOTARY: Kindly reinstate the Complaint in the above-captioned Civil Action for an additional thirty days. Brett D. Feldman Attorney for Plaintiff Dated: May is , 2000 C> c? Cr '-ice 4.11 an i1 1O w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CANAM STEEL CORPORATION CIVIL ACTION - LAW Plaintiff vs. No.00-2148 D.F.S. COMPANY, Defendant ANSWER WITH NEW MATTER 1. Admitted. 2. Admitted. It is admitted that D.F. S. is a corporation, organized under the laws of the Commonwealth of Pennsylvania with its principal place of business at 4 East Industrial Park Road, Mifllintown, Juniata County, Pennsylvania. 3. Admitted. 4. Admitted. 5. Admitted in Part and Denied in Part. It is admitted that Mr. Gary Tweedlie, President of D.F.S. signed the "contract' 'which is attached to Plaintiff's complaint. Defendant is without sufficient knowledge to determine what Plaintiff means by the statement: "signed and initialed... at all relevant points " and as such, the same is denied and strict proof thereof demanded at trial. 6. Denied. It is denied that Canam has fully performed its obligations under the terms of the Contract and, to the contrary, breached the parties' contract for those reasons more particularly described in Defendant's New Matter hereinafter. 7. Admitted in part and Denied in part. It is admitted that an outstanding balance exists in the sum of $26,298.90. It is denied that Defendant has any obligation or liability to pay any of the aforesaid amount. COUNT I-BREACH OF CONTRACT 8. Defendant incorporates his answers to paragraphs 1 through 7 aforesaid by this reference. 9. Denied. It is denied that Defendant breached the parties' Contract by failing to pay the alleged amounts owed to Canam. By way of further answers, see Defendant's New Matter. 10. Denied. It is denied that D.F. S. breached the parties' Contract and as a result that Plaintiff could have suffered, as a direct and proximate result of D.F. S. Breach of Contract, any damages and specifically damages in the amount of $26,298.90. WHEREFORE, Defendant respectively requests that judgment be entered in its favor and Plaintiff's action be dismissed. COUNT H-UNJUST ENRICHMENT 11. Defendant's answers to paragraphs I through 10 are hereby incorporated by this reference. 12. Denied. It is denied that Defendant has been unjustly enriched and strict proof thereof is demanded at trial. By way of further answer, see Defendant's New Matter. 13. Denied. It is denied that D.F.S. has improperly retained materials without payment to Plaintiff or, that Plaintiff has suffered damages in the amount of $26,298.90 or any such amount thereof. WHEREFORE, Defendant respectively requests that judgment be entered in Defendant's favor and Plaintiff s action be dismissed. NEW MATTER 14. Defendant was a subcontractor in the construction project known to the parties as "Pennsboro Commons" project. 15. Ames Construction was the general contractor in the "Pennsboro Commons" project. 16. The parties' contract was for specific materials to certain specifications for use at the Pennsboro Commons project. 17. During the executory period of the contract, Plaintiff failed to provide the materials fabricated to the specifications required under the parties' Contract. 18. The material Plaintiff provided were not fabricated in a workmanlike manner customary in the Plaintiff's field or profession or to the agreed upon approved design prints. 19. The materials ordered were to be shipped in a certain sequence and in certain bundles for the use at the site. 20. Plaintiff failed to ship the materials in the appropriate sequence or in appropriately separated bundles. 21. As a direct and proximate result of the shipments out of sequence or incorrect bundles, Defendant's workmen at the site had to expend lengthy hours of labor to determine which materials were for which part of the project as well as had to await certain materials which were not provided as part of those specific parts to be completed at a certain time and necessary to be completed in a particular sequence. 22. During the executory period of the contract, Plaintiff failed to ship certain materials necessary for completion of certain phases of the construction which resulted in significant delays at the work site while awaiting the shipment of the materials which were to be shipped at a particular prior point in time. 23. As a result of the materials not be providing to specification, Defendant had to undertake extensive field work and labor to modify the materials appropriately in order that they conform to the agreed upon approved design prints for the Pennsboro project. 24. All of the above resulted in the necessity of Defendant to undertake extensive field work as well as additional costs for equipment rental. 25. As a direct and proximate result of Plaintiff s failure to provide the materials in accordance with the parties' contract: to specifications provided; in the appropriate sequence and bundles; and, being short materials at times, Ames Construction, the general contractor has and continues to refuse to pay Defendant for the work performed. 25. By Plaintiff s failure to provide the materials in accordance with the parties' contract: to specifications provided; in the appropriate sequence and bundles; and, being short materials at times, Plaintiff has breached the parties' contract. 26. As a direct and proximate result of Plaintiff's breach of the parties' Contract, Defendant incurred extensive on-site field work, equipment rental costs and labor costs in excess of the sum of $30,000.00. WHEREFORE, Defendant respectfully requests that judgment be entered in its favor and against Plaintiff. RESPECTFULLY SUBMITTED, JOHNSTON AND ZAGURSKIE Date: By - O D K. ZAGURSKIE 117 Main St., P.O. Box O Mifflin, PA 17058 Attorney I.D. 62494 VERIFICATION I, Gary Tweedlie, state that I am the President of the D.F. S. Company, Inc., the Corporation herein, that I am authorized to make this verification on its behalf and that the facts set forth in the foregoing Complaint are true upon my personal knowledge, information and belief. I understand that my statements are made subject to 18 Pa. Cons. Stat. Section 4904 providing for criminal penalties for unworn falsification to authorities. Date: Gary Tweedlie - President D.F.S. Company, Inc. IN THE COURT OF CUMBERLAND COUNTY, PENNSYLVANIA CANAM STEEL CORPORATION CIVIL ACTION - LAW PLAINTIFF No. 00-2148 VS. D.F.S. COMPANY DEFENDANT CERTIFICATE OF SERVICE AND NOW, 2000, I, Donald K. Zagurskie, Esquire, attorney for D.F. S. Company, in the above-captioned matter, hereby certify I served a true and correct copy Answer with New Matter by depositing the same in the United States mail, at Mullin, Pennsylvania, addressed to the following person at the following address: Brett D. Feldman, Esq. 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 JOHNS ZAGURSKIE B Donald K Zagurskie, Esq. 117 Main Street P.O. Box O Mifflin, PA 17058 PIPER MARBURY RUDNICK & WOLFE LLP Elizabeth J. Feeney Brett D. Feldman Identification Nos.: 76739/82689 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 215-656-3300 CANAM STEEL CORPORATION P.O. Box C-285 4010 Clay Street Point of Rocks, MD 21777-0285 Plaintiff, V. D.F.S. COMPANY, INC. East Industrial Park P.O. Box 172 Miflintown, PA 17059 Defendant. Attorneys for plaintiff, Canam Steel Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 00-2148 Civil Term CANAM STEEL CORPORATION'S RESPONSE TO DEFENDANT D.F.S. COMPANY, INC.'S NEW MATTER Plaintiff, Canam Steel Corporation ("Canam"), by and through its counsel, Piper Marbury Rudnick & Wolfe LLP, hereby responds to defendant D.F.S. Company, Inc.'s ("Defendant") New Matter as follows: 14. Admitted. 15. Denied. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Defendant's New Matter. 16. Denied. The contract at issue in this litigation is in writing and speaks for itself. Plaintiff respectfully refers Defendant to the written contract for its precise terms. 17. Denied. The allegations of this paragraph of Defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. 18. Denied. The allegations of this paragraph of Defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. 19. Denied. Defendant has failed to provide plaintiff with any documentation that substantiates the allegations of this paragraph of Defendant's New Matter. 20. Denied. Defendant has failed to provide plaintiff with any documentation that substantiates the allegations of this paragraph of Defendant's New Matter. 21. Denied. The allegations of this paragraph of Defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. By way of further answer, after reasonable investigation plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Defendant's New Matter. 22. Denied. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Defendant's New Matter. 23. Denied. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Defendant's New Matter. -2- 24. Denied. Defendant has failed to provide plaintiff with any documentation that substantiates the allegations of this paragraph of Defendant's New Matter. 25. Denied. The allegations of this paragraph of Defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. By way of further answer, plaintiff incorporates by reference its answer to paragraph 24, above. 26. Denied. The allegations of this paragraph of Defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. By way of further answer, Defendant has failed to provide plaintiff with any documentation that substantiates the remaining allegations of this paragraph of Defendant's New Matter. WHEREFORE, plaintiff, Canam Steel Corporation, demands judgment in its favor against defendant, D.F.S. Company, Inc., in the amount of $26,298.90, plus pre judgment interest and the costs of this action. Respectfully submitted, 44k V. F-A- Elizabeth J. Feeney Brett D. Feldman Attorneys for plaintiff, Canam Steel Corporation Piper Marbury Rudnick & Wolfe LLP 3400 Two Logan Square 18t' & Arch Streets Philadelphia, PA 19103 (215) 656-3300 -3- Anthony L. Meagher Piper Marbury Rudnick & Wolfe LLP 6225 Smith Avenue Baltimore, Maryland 21209-3600 (410) 580-3001 Of Counsel Dated: July 20, 2000. -4- VERIFICATION I, Brett D. Feldman, declare and say that I am an attorney for Canam Steel Corporation, the plaintiff in this action, and that the statements made in the foregoing Answer to New Matter are true and correct to the best of my knowledge, information and belief, and that the statements in the Answer to New Matter are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. ;340 0. FA____ Brett D. Feldman Dated: July 20, 2000. CERTIFICATE OF SERVICE I certify that on July 20, 2000, a copy of plaintiff's answer to defendant D.F.S. Company, Inc.'s new matter, was served by first-class mail, postage pre-paid, addressed as follows: Johnston and Zagurskie Donald K. Zagurskie 117 Main Street P.O. Box 0 Mifflin, PA 17058 40 0 . Fj?&, Brett D. Feldman -6- C -D OTT Joseph Kemen, Esquire Laura A. Biancke, Esquire Identification Nos.: 56343/87625 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 215-656-3300 CANAM STEEL CORPORATION P.O. Box 0-285 4010 Clay Street Point of Rocks, MD 21777-0285 ORIGWAL Attorneys for Plaintiff, Canam Steel Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL TERM Plaintiff, V. NO. 00-2148 D.F.S. COMPANY, INC. East Industrial Park P.O. Box 172 Miflintown, PA 17059 Defendant. STATEMENT OF INTENTION TO PROCEED TO THE COURT: Plaintiff, Canam Steel Corporation, intends to proceed with the above-captioned matter. oseph Kemen I aura A. Bian e l iper Rudnick LLP 3400 Two Logan Square 18`h and Arch Streets Philadelphia, PA 19103 (215) 656-3300 (215) 656-3301 Facsimile Attorneys for Plaintiff, Dated: September 25, 2003 Canam Steel Corporation CERTIFICATE OF SERVICE I, Laura A. Biancke, certify that on September 25, 2003, a true and correct copy of plaintiff s Statement of Intention to Proceed, was served by first-class mail, postage prepaid, addressed as follows: Donald K. Zagurskie, Esquire Johnston, Zagurskie & Mummah 117 Main Street P.O. Box 0 Mifflin, PA 17058 Laura A. Bian cl e c rn 71 71 Qr -:5Y ? c r• j e±i j V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CANAM STEEL CORPORATION, Plaintiff vs. D.F.S. COMPANY, INC., Defendant CIVIL ACTION - LAW No. 00-2148 ORDER AND NOW this t 7 day of 2003, in consideration of Defendant's Motion to Amend Pleading, said Motion is granted and Defendant is hereby provided twenty (20) days during which to file an Amended Answer with New Matter and Counter Claim. Rule is entered upon Plaintiff to show cause why any said Motion should not be granted. Said Rules is returnable ?o °f?"'? ?"" ?`''r 7 BY THE COURT, II-I S- ? t VINIWAW& MIA, ON a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CANAM STEEL CORPORATION, CIVIL ACTION - LAW Plaintiff vs. No. 00-2148 D.F.S. COMPANY, INC., Defendant MOTION TO AMEND PLEADING AND NOW, comes the Defendant in the above-referenced matter and for the reasons stated herein respectfully requests to Amend Defendant's Answer with New matter to include what is attached hereto as Exhibit "A" as a Counterclaim and in support thereof avers the following: 1. In the above-referenced action, Defendant timely filed what is titled Answer with New Matter. 2. Defendant's pleading contains no specific heading of Counterclaim; however, the New Matter outlines and articulates a counterclaim with all elements of a counterclaim for Plaintiff's breach of the at issue Contract. 3. Defendant's counsel asserts that the omission of the title 'Counterclaim is simply a typographical error. 4. In Defendant's Answer and New Matter, at paragraph twenty-five therein, states Ames Construction continues to refuse to pay Defendant for work performed. 5. Since the filing of the Answer and New Matter, to bring the pleadings current in time, payment has not been received from Ames and no payment will be received from Ames and as a result thereof, the proposed Amendment Counterclaim includes d asserted damages as a result of the profit lost resulting from Plaintiff's alleged breach of the at issue contract. 6. There has been no activity in the above-referenced civil action for a period of time since approximately July, 2000 resulting in a placement of the case on the Court's purge list for inactivity. See Attachment "A". 7. No prejudice or surprise will result to Plaintiff in permitting Defendant's requested Amendment. WHEREFORE, respectfully requests this Court to grant Defendant twenty days to file amended answer with New Matter and Counterclaim specifically including the Counterclaim, substantially in the form attached hereto as Exhibit "A". Date: / ; d 3 Respectfully submitted, JOHNSTON, ZAGURSKIE & MUMMAH P?? By D agurskie 17 pin St., P.O. Box 0 Mifflin, PA 17058 (717) 436-8044 Attorney I.D. No. 62494 Attorney for Plaintiff 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CANAM STEEL CORPORATION, CIVIL ACTION - LAW Plaintiff vs. No. 00-2148 D.F.S. COMPANY, INC., Defendant CERTIFICATE OF SERVICE AND NOW, 414gkq 3Z , 2003, I, Donald K. Zagurskie, Esquire, attorney for Canam Steel Corporation, in the above-captioned matter, hereby certify I served a true and correct copy of the Motion To Amend Pleading by depositing the same in the United States mail, at Mifflin, Pennsylvania, addressed to the following person at the following address: LAURA A. BIANCKE, ESQUIRE PIPER RUDNICK, LLP 3400 TWO LOGAN SQUARE 18TH AND ARCH STREETS PHILADELPHIA, PA 19103 JOHNSTON, ZAGURSKIE & MUMMAH By 4LD K. ZAGURSKIE 117 Main Street P.O. Box O Mifflin, PA 17058 J lx, t7. ? 77 :'i r5: _. sr? T7 J 1J1 L a . ?, C,"_ dS7 ct ? c±t y N cil yy ?7 pom I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CANAM STEEL CORPORATION, CIVIL ACTION - LAW Plaintiff vs. No. 00-2148 D.F.S. COMPANY, INC. Defendant PRAECIPE TO ATTACH EXHIBITS TO PLEADING TO THE PROTHONOTARY: Please attach the enclosed exhibits as Exhibit "A" and Attachment "A", respectively to Defendant, D.F.S. Company, Inc.'s Motion to Amend Pleading which was filed on November 10, 2003. The Motion gives reference to Exhibit "A" and Attachment "A" which were erroneously not attached to the Motion. JOHNSTON, ZAGURSKIE & MUMMAH By al K. Zagurskie 117 Main St., P.O. Box 0 Mifflin, PA 17058 (717) 436-8044 Attorney for Defendant Date: ///2/ //(,? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CANAM STEEL CORPORATION CIVIL ACTION - LAW Plaintiff vs. D.F.S. COMPANY, Defendant No.00-2148 COUNTERCLAIM 1. Defendant D.F.S., Company, Inc., hereinafter "DFS", is a duly authorized corporation of the Commonwealth with its principle place of business at 4 East Industrial Park Road, Mifflintown, Juniata County, Pennsylvania. 2. Plaintiff is Canam Steel Corporation, hereinafter "Canam", a corporation organized under the laws of the State of Delaware, with its principle place of business at P.O. Box C-285, 4010 Clay Street, Points of Rocks, Maryland. 3. Canam and DFS entered into a contract in which Canam would supply certain steel joists and other materials to DFS for a project known as "Pennsboro Commons, Giant Store #113, in Enola Pennsylvania, hereinafter "the project". A true and correct copy of the Contract is attached hereto as Exhibit "A". 4. Canam was a subcontractor of Plaintiff DFS in the project. 5. Plaintiff DFS was a subcontractor to the general contractor Ames Construction in the project. 6. Under the terms of the contract, Canam was to fabricate specific materials to certain specifications for the Giant Pennsboro Commons project. 7. During the executory period of the contract, Defendant failed to provide the materials fabricated to the specifications required under the parties' Contract. 8. Materials provided by Defendant were not fabricated in a workmanlike manner customary in the parties' business, field or profession or to the agreed upon approved design prints. 9. The materials Plaintiff ordered from Defendant were to be shipped in a certain sequence and in certain bundles for use at the project site. 10. Defendant failed to ship the materials in the appropriate sequence and/or in appropriately separated bundles. EXHIBIT "A° 11. As a direct and proximate result of Defendant's shipments out of sequence or in incorrect bundles, Plaintiff's workmen at the project site had to expend lengthy hours of labor to determine which materials were for which part of the project. 12. During the executory period of the contract, Defendant failed to ship certain materials necessary for that part of the project which resulted in extensive delay for DFS in timely completion of the project while awaiting the shipment of the materials which were to be shipped at a particular previous point in time. 13. As a result of the materials provided from Canam not being fabricated to specification, DFS was required to undertake extensive field work and labor to modify the materials appropriately for the design of the Pennsboro project at great expense and cost to DFS. 14. All of the above resulted in the necessity of DFS to undertake extensive field work as well as additional costs for equipment rental. 15. As a direct and proximate result of Plaintiff's failure to provide the materials in accordance with the parties' agreement: to specifications provided; in the appropriate sequence; and bundles; and, shipments of product missing materials at a time when the same was needed in construction; the general contractor has and continues to refuse to pay DFS for the work and services performed. 16. By Canam's failure to provide the materials in accordance with the parties' agreement as stated aforesaid herein, Canam has breached the parties' agreement. 17. As a direct and proximate result of Canam's breach of the parties' Contract, DFS has incurred on site field work, equipment rental costs and labor costs in excess of the sum of $30,000.00. 18. As a direct and proximate result of Canam's breach of the parties' Contract, DFS has incurred loss of profit expected from the project in excess of the sum of $ 90,900.00. 19. Plaintiff is liable to Defendant, for the aforesaid reasons in sum of $ 120,900.00. WHEREFORE, Plaintiff respectfully requests that judgment be entered in its favor and against Defendant in an amount in excess of the sum of $ 120,900.00 along with reasonable costs and attorney fees, and such other further relief the Court deems just. Said sum being a sum greater than the amount requiring local arbitration. Date: RESPECTFULLY SUBMITTED, JOHNSTON, ZAGURSKIE & MUMMAH By DONALD K. ZAGURSKIE 117 Main St., P.O. Box O Mifflin, PA 17058 Attorney I.D. 62494 . i. cainaam zfGl1 i+ ?tsaa;.im mnr coyow*a =A= salersco.? EMa Tck }? tAfA?(-T: P •r lQC'ATg*t 4 11 . to a !_ YSTJI LUE)a .a. 967rlttu6wdac (g( cm=NTAUo= s] Uadaalm.d* - - ?; MAMULQUOTM DND(:eQt 1Q+?ady?ndH?161sapdm??7 Y aeda?/l ;'= ait4iddxtdSny6t?+Mat?a 1d0 : ?,t taKlgfuiolas tldku 344ST a Wow - - - Tw*?tbasol?dtdidll?fEdaNaait ,: MR-&w Tn# pa iS18?tsJdds W' Q waLt+aw l?eq?AtKeRM0aglt t? ?. PuDtA>.da7?rt 3?11}7t D wk+q?lar+avw+rtnrtb , t' --L_Iulol¢d6Gftt. =?F'4?? {? ?'Wlf6pft?it?i pin.WwtYF??16' ? •• tF YdRII t . ! !3-II moo - 37 J?[?rtl?dRl/MMI.?LYhYipLLe?Wi, t . S • 'Y - sp . . ? 21 COFOtl?IfEdrdlN?f?o??(1.?..alfli?KP?MId?R nt/ VAb I' • ? ArCa{ItG[O[Id?1VtIR. . AWwawCS i Jl?.lmu+ wi. A&m kW kMbtSdpt qa--Acd*A? Mld I PdKm R&'tiS 1OL"tAKE&P"TOFTS 4cQ$i]=- ?tlmdada??d?teof mdx?? •. dpcypv>dtia4dsat6wo! - Whsm4m++csttrotw4re ? - ? ? ? ? ? .. . 18oY?wtadaulm.dw da xi {p i ? lam?yQa1?W?TKiwloafQx TW111{j?.?RgAT2Rlt7YQDTTE 'OIJ$ANDE?C &b.b"k r- 7aafr tam Dw to sS yt DAD" s c...utcwzas?.u?azcasa:otu? 3.o1>If+u?pMa cnme?..sswta.drw?yew?eA? 13 acarAgt s?Ta'n't?tm+r C} ui9taw?ta""G'?- n6hac=a?nsnxw.a 13 fix,mM?WMl?a,4rmmammarMm=? .i,, aaa.nc :rA4wwgoo.a k@.?a?t .tkPlO ?sm???+at ?a+traa"wc ,ix A ae. tuwsa tp v+e •o rem 1ZE?-? Cf JAICSC z A JO D 9S•a....tkx. Q ltecdGtw> e?c*.ebtiaaar maucaema.aCequei?. 1° oun¢+? ALMS Fa?iare/on?,.aGwlsevka?sWe.qv..?Prabslalos+dxedN?rawesmC+reeo?o,c.dwv.,toodWoAiroidra0iss EXHIBIT "A" e of f the Froth Cumberland Coui Curtis K Long Prothonotary Tot D F S COMPANY Court Case # (s) - 00-2148 NOTICE OF PROPOSED TERMINA A Special Call of the List wto be held on 10-28-20 The court intends to tentnina this case without futb activity in the case for at least two yo . You may stop the court fro' terminating the case by Proceed. The Statement of Intention Proceed should be file CUMBE AND COUNTY PF O COURTHOUSE CARLISLE, PA 1 717-240-6195 on or before fiber 27.2011. Date IF YOU FAIL TO FILE PROCEED, I ; REQUIRED ST CASE WILL BE August 28, 20O Dam OrOds Nodw ATTAC-fWNT "Ass COURT CASTE A.M., in Courtroom 1 because the docket shows no statement o£Inten&n to e Prothonotary of the Court at: OF INTENTION TO PROOF OF SERVICE I, Donald K. Zagurskie, attorney for D.F.S. Company, Inc., that I served a true and correct copy of the foregoing document was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: Laura A. Biancke, Esq. Piper Rudnick, LLP 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Joseph Kernen, Esq. Piper Rudnick, LLP 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 JOHNSTON, ZAGURSKIE & MUMMAH BY Di?ee ald K. Zagurskie Attorney for Defendant Date: l/ ?/ O 77 ?p ?w) ? 'Y7 '? _'• ? ;__? ? iii ? t.F. 'S9'? ? - ! - ? ?? W TJ { ,. ... ,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CANAM STEEL CORPORATION Plaintiff CIVIL ACTION - LAW VS. D.F.S. COMPANY, Defendant No.00-2148 STIPULATION AND CONSENT 1. Plaintiff, Canam Steel Corporation ("Canam"), by and through its attorneys, hereby consents to defendant, D.F.S. Company, Inc.'s ("D.F.S.") request to Amend its Pleading, Answer with New Matter, to include a Counterclaim, substantially in the form as attached hereto as Exhibit "A".. Accordingly, Defendant's motion to amend Pleading relief is not opposed. 2. The Parties further stipulate and agree that Plaintiff, Canam Steel Corporation, shall not raise as a defense or otherwise any issue pertaining to the timeliness of D.F.S.'s filing of its Amended Answer with New Matter and Counterclaim, included but not limited to, a claim that D.F.S.'s counterclaim is barred by the applicable statute of limitations, laches or any other legal theory based on the timeliness of defendant's pleading(s) and specifically waives any defense relative to any applicable statute of limitation(s), laches or any other legal theory based on the timeliness of defendant's pleading(s). Upon conclusion of the pleadings, Defendant agrees to dismiss Cumberland County Civil Action No. 03-1593. Respectfully Submitted, Donald gurskie, Esquire Johns , Zagurskie & Mummah 117 Main Street P.O. Box O Mifflin, PA 17058 Respectfully Submitted, seph Kernen E quir ura A. Bianc , Esq it per Rudnick LLP Attorneys for Plaintiff 3400 Two Logan Square 18" and Arch Streets Philadelphia, PA 19103 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CANAM STEEL CORPORATION CIVIL ACTION - LAW Plaintiff vs. No.00-2148 D.F.S. COMPANY, Defendant AMENDED ANSWER WITH NEW MATTER AND COUNTERCLAIM 1. Admitted. 2. Admitted. It is admitted that D.F.S. is a corporation, who organized under the laws of the Commonwealth of Pennsylvania with its principal place of business at 4 East Industrial Park Road, Mifflintown, Juniata County, Pennsylvania. 3. Admitted. 4. Admitted. 5. Admitted in Part and Denied in Part. It is admitted that Mr. Gary Tweedlie, President of D.F.S. signed the "contract" which is attached to Plaintiffs complaint. Defendant is without sufficient knowledge to determine what Plaintiff means by the statement: "signed and initialed ... at all relevant points " and as such, the same is denied and strict proof thereof is demanded at trial. 6. Denied. It is denied that Canam has fully performed its obligations under the terms of the Contract and, to the contrary, breached the parties' contract for those reasons more particularly described in Defendant's New Matter hereinafter. 7. Admitted in part and Denied in part. It is admitted that an outstanding balance exists in the sum of $26,298.90. It is denied that Defendant has any obligation or liability to pay any of the aforesaid amounts. COUNT I-BREACH OF CONTRACT 8. Defendant incorporated its answers to paragraphs 1 through 7 aforesaid by this reference. 9. Denied. It is denied that Defendant breached the parties' Contract by failing EXHIBIT "A" to pay the alleged amounts owed to Canam. By way of further answers, see Defendant's New Matter. 10. Denied. It is denied that D.F.S. breached the parties' Contract and that as a result that Plaintiff could have suffered, as a direct and proximate result of D.F.S. Breach of Contract, any damages and specifically damages in the amount of $26,298.90. WHEREFORE, Defendant respectively requests that judgment be entered in its favor and Plaintiff's action be dismissed. COUNT II-UNJUST ENRICHMENT 11. Defendant's answers to paragraphs 1 through 10 are hereby incorporated by this reference. 12. Denied. It is denied that Defendant has been unjustly enriched and strict proof thereof is demanded at trial. By way of further answer, see Defendant's New Matter. 13. Denied. It is denied that D.F.S. has improperly retained materials without payment to Plaintiff or, that Plaintiff has suffered damages in the amount of $26,298.90 or any such amount thereof. WHEREFORE, Defendant respectively requests that judgment be entered in Defendant's favor and Plaintiff's action be dismissed. NEW MATTER 14. Defendant was a subcontractor in the construction project known to the parties as'Pennsboro Commons' project. 15. Ames Construction was the general contractor in 'Pennsboro Commons' project. 16. The parties' contract was for specific materials to certain specifications for use at the 'Pennsboro Commons' project. 17. During the executory period of the contract, Plaintiff failed to provide the materials fabricated to the specifications required under the parties' Contract. 18. The materials Plaintiff provided were not fabricated in a workmanlike manner customary in the Plaintiff's field or profession or to the agreed upon approved design prints. 19. The materials ordered were to be shipped in a certain sequence and in certain bundles for their use at the site. 20. Plaintiff failed to ship the materials in the appropriate sequence or in appropriately separated bundles. 21. As a direct and proximate result of the shipments out of sequence or incorrect bundles, Defendant's workmen at the site had to expend lengthy hours of labor to determine which materials were for which part of the project as well as had to await certain materials which were not provided as part of those specific parts to be completed at a certain time and necessary to be completed in a particular sequence. 22. During the executory period of the contract, Plaintiff failed to ship certain materials necessary for completion of certain phases of the construction which resulted in significant delays at the work site while awaiting the shipment of the materials which were to be shipped at a particular prior point in time. 23. As a result of the materials not being providing to specification, Defendant had to undertake extensive field work and labor to modify the materials appropriately in order that they conform to the agreed upon approved design prints for the Pennsboro project. 24. All of the above resulted in the necessity of Defendant to undertake extensive field work as well as additional costs for equipment rental. 25. As a direct and proximate result of Plaintiff's failure to provide the material in accordance with the parties' contract: to specifications provided; in the appropriate sequence and bundles; and, being short materials at times, Ames Construction, the general contractor has and continues to refuse to pay Defendant for the work performed. 26. As a direct and proximate result of Plaintiff's breach of the parties' Contract, Defendant incurred on-site field work, equipment rental costs and labor costs in excess of the sum of $30,000.00. WHEREFORE, Defendant respectfully requests that judgment be entered in its favor and against Plaintiff. COUNTERCLAIM 1. Defendant D.F.S., Company, Inc., hereinafter "DFS", is a duly authorized corporation of the Commonwealth with its principle place of business at 4 East Industrial Park Road, Mifflintown, Juniata County, Pennsylvania. 2. Plaintiff is Canam Steel Corporation, hereinafter "Canam", a corporation organized under the laws of the State of Delaware, with its principle place of business at P.O. Box C-285, 4010 Clay Street, Points of Rocks, Maryland. 3. Canam and DFS entered into a contract in which Canam would supply certain steel joists and other materials to DFS for a project known as "Pennsboro Commons, Giant Store #113, in Enola Pennsylvania, hereinafter "the project". A true and correct copy of the Contract is attached hereto as Exhibit "A". 4. Canam was a subcontractor of Plaintiff DFS in the project. 5. Plaintiff DFS was a subcontractor to the general contractor Ames Construction in the project. 6. Under the terms of the contract, Canam was to fabricate specific materials to certain specifications for the Giant Pennsboro Commons project. 7. During the executory period of the contract, Defendant failed to provide the materials fabricated to the specifications required under the parties' Contract. 8. Materials provided by Defendant were not fabricated in a workmanlike manner customary in the parties' business, field or profession or to the agreed upon approved design prints. 9. The materials Plaintiff ordered from Defendant were to be shipped in a certain sequence and in certain bundles for use at the project site. 10. Defendant failed to ship the materials in the appropriate sequence and/or in appropriately separated bundles. 11. As a direct and proximate result of Defendant's shipments out of sequence or in incorrect bundles, Plaintiff's workmen at the project site had to expend lengthy hours of labor to determine which materials were for which part of the project. 12. During the executory period of the contract, Defendant failed to ship certain materials necessary for that part of the project which resulted in extensive delay for DFS in timely completion of the project while awaiting the shipment of the materials which were to be shipped at a particular previous point in time. 13. As a result of the materials provided from Canam not being fabricated to specification, DFS was required to undertake extensive field work and labor to modify the materials appropriately for the design of the Pennsboro project at great expense and cost to DFS. work as well as additional costs for equipment rental. 15. As a direct and proximate result of Plaintiff's failure to provide the materials in accordance with the parties' agreement: to specifications provided; in the appropriate sequence; and bundles; and, shipments of product missing materials at a time when the same was needed in construction; the general contractor has and continues to refuse to pay DFS for the work and services performed. 16. By Canam's failure to provide the materials in accordance with the parties' agreement as stated aforesaid herein, Canam has breached the parties' agreement. DFS has incurred on site field work, equipment rental costs and labor costs in excess of the sum of $30,000.00. 18. As a direct and proximate result of Canam's breach of the parties' Contract, DFS has incurred loss of profit expected from the project in excess of the sum of $ 90,900.00. 19. Plaintiff is liable to Defendant, for the aforesaid reasons in sum of $ 120,900.00. WHEREFORE, Plaintiff respectfully requests that judgment be entered in its favor and against Defendant in an amount in excess of the sum of $ 120,900.00 along with reasonable costs and attorney fees, and such other further relief the Court deems just. Said sum being a sum greater than the amount requiring local arbitration. 14. All of the above resulted in the necessity of DFS to undertake extensive field 17. As a direct and proximate result of Canam's breach of the parties' Contract, RESPECTFULLY SUBMITTED, Date: JOHNSTON, ZAGURSKIE & MUMMAH By DONALD K. ZAGURSKIE 117 Main St., P.O. Box 0 Mifflin, PA 17058 Attorney I.D. 62494 VERIFICATION I, Gary Tweedlie, state that I am the President of the D.F.S. Company, Inc., the Corporation herein, that I am authorized to make this verification on its behalf and that the facts set forth in the foregoing Complaint are true upon my personal knowledge, information and belief. I understand that my statements are made subject to 18 Pa. Cons. Stat. Section 4904 providing for criminal penalties for unsworn falsification to authorities. Date: Gary Tweedlie - President D.F.S. Company, Inc. _ n SAXM Cd.YMACT Kor ? rnaJsar•?raas?c?w?rorea?fsz?JkR,?1t`rA'.-a?.?? PSTWAIMNQUBM- am; ti dWAUJ02 XLiDdEZF- T]h?ifetc6radea: 1$F ?5$LoaS 17 '.,iabmla•.dry ."? MAnRLILQUOTIMZ Di l) 0 ?FtmmHyirpgdu, appmncd? Y odalltkodlwTj;•; ' sdkkkif?c4IIriybgtsAkt?a? 1.140 y; ' h XtKwk[Ai tlu4x A4!&T)yp hX?y YoaRW 6eea?'f3 odN>1dk ikodis -- :: . Ps IR6401a" gaj Tm 4 W+S.wn.Brd]?vY?+Ims+kCso}?d?c Cl , F.cDW?etaJatu _ . _ nA4'AT4 Q ?ki?4?•sywr?wnwiWb } ?. ?2a..talad(=Cas.. =?cSt-'[Yfa ? . ? ?a?Na^Y+MIIttta'?b''?S',?'? "l• ?I n.OtwcimOki4bk19' .} .• iDdk?u?Pi0.YscGicaekd: - .27 ?rO6aY i .. l ?I ¢1? JZ?W'•iIIN i16k•i ?tidroL?•b'11"t1P6 ' 6. a i t Gal.K?lYd?rdP4clwal?fl.t77 a GkOafu%d((dGSL - ?' .GmMe w?_ A?yfaYLNtt wY AQ4a2cSd 1?Dt1Pf?S'dwl7?C??Nk1 of ?' , MAX AI.1.E7CCI.QS102'i5.A2YY1QUAt.?'?ICAIY0.'??ZC7?X?t}(QUcYfB TEllydfg06lL6?YfiatR6faU4 mtrDx"IaEA. FAXTOFIla$cQvaXlr. eatcd 4zmdrteoC esaytadt??tttn ., ' iSaxxE?tiepttvidlaQnlsadmio! l Ad?K?a4 ?iCwQYi.m1tC?M45.Q1Pa?It9iutiQj¢C7iL(iF0i9?L tlbOrt NO?)Qft3:kriaa d[iRbtyf 7'°k1'Qaa?Y= _ . xa?Sau hl?(Sa 74daG? TWO L?J(.'pF-L?1?'Ih7Y(u.Tj ?[1$A,ND LZ7"i '?. cv ?tc?kQnnallma 1az4as na?sscs ZIA" ClstldUN 7a S?+r}0.:iT 4'EiLQ:DliF- ?7weMkyMMhb'ot?xs to met bfa+[Ia SiCCi.ca DL9 Cgw.ricll[dtsra47pwtpo.? ?afm?A' ?aQ?aUdeeoa 7kkfWaWQilpnA.b(lYlb lria L?'HEHt. L?.st ??.,, , $aaJyl'pa?.'.C11SmerM tn<LfeM4f[TTL(P j0(T'rq. . d j ?seEait3.Ptbi6e Q t? . R??Im?it 7?teWT<Ar?% F' (,7 DAYn6M.tO'Fa:s4)Y•S.1•a f .. r ? ?iSYl21 t im g] '?SW?+KYui?Y+latacimd<tQt343bACayaNioa, d??I%liw.oc4os kigSacarRk7'7 ? gd??aY qw•[' WrY ? ? ? A b cs?dt+.c.o+v+ +dwva?to 'tofu xat+trfddc Pm w4je"I• 4 %dA vk, dA5lt.ao••.,?++t MAUs Jd dOra W?d• rav EXHIBIT "A" _. ? :_ t., `c?`3 -? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CANAM STEEL CORPORATION CIVIL ACTION - LAW Plaintiff vs. No.00-2148 D.F.S. COMPANY, Defendant AMENDED ANSWER WITH NEW MATTER AND COUNTERCLAIM 1. Admitted. 2. Admitted. It is admitted that D.F.S. is a corporation, who organized under the laws of the Commonwealth of Pennsylvania with its principal place of business at 4 East Industrial Park Road, Mifflintown, Juniata County, Pennsylvania. 3. Admitted. 4. Admitted. 5. Admitted in Part and Denied in Part. It is admitted that Mr. Gary Tweedlie, President of D.F.S. signed the "contract" which is attached to Plaintiff's complaint. Defendant is without sufficient knowledge to determine what Plaintiff means by the statement: "signed and initialed ... at all relevant points " and as such, the same is denied and strict proof thereof is demanded at trial. 6. Denied. It is denied that Canam has fully performed its obligations under the terms of the Contract and, to the contrary, breached the parties' contract for those reasons more particularly described in Defendant's New Matter hereinafter. 7. Admitted in part and Denied in part. It is admitted that an outstanding balance exists in the sum of $26,298.90. It is denied that Defendant has any obligation or liability to pay any of the aforesaid amounts. COUNT I-BREACH OF CONTRACT 8. Defendant incorporated its answers to paragraphs 1 through 7 aforesaid by this reference. 9. Denied. It is denied that Defendant breached the parties' Contract by failing to pay the alleged amounts owed to Canam. By way of further answers, see Defendant's New Matter. 10. Denied. It is denied that D.F.S. breached the parties' Contract and that as a result that Plaintiff could have suffered, as a direct and proximate result of D.F.S. Breach of Contract, any damages and specifically damages in the amount of $26,298.90. WHEREFORE, Defendant respectively requests that judgment be entered in its favor and Plaintiff's action be dismissed. COUNT II-UNJUST ENRICHMENT 11. Defendant's answers to paragraphs 1 through 10 are hereby incorporated by this reference. 12. Denied. It is denied that Defendant has been unjustly enriched and strict proof thereof is demanded at trial. By way of further answer, see Defendant's New Matter. 13. Denied. It is denied that D.F.S. has improperly retained materials without payment to Plaintiff or, that Plaintiff has suffered damages in the amount of $26,298.90 or any such amount thereof. WHEREFORE, Defendant respectively requests that judgment be entered in Defendant's favor and Plaintiff's action be dismissed. NEW MATTER 14. Defendant was a subcontractor in the construction project known to the parties as'Pennsboro Commons' project. 15. Ames Construction was the general contractor in 'Pennsboro Commons' project. 16. The parties' contract was for specific materials to certain specifications for use at the 'Pennsboro Commons' project. 17. During the executory period of the contract, Plaintiff failed to provide the materials fabricated to the specifications required under the parties' Contract. 18. The materials Plaintiff provided were not fabricated in a workmanlike manner customary in the Plaintiff's field or profession or to the agreed upon approved design prints. 19. The materials ordered were to be shipped in a certain sequence and in certain bundles for their use at the site. 20. Plaintiff failed to ship the materials in the appropriate sequence or in appropriately separated bundles. 21. As a direct and proximate result of the shipments out of sequence or incorrect bundles, Defendant's workmen at the site had to expend lengthy hours of labor to determine which materials were for which part of the project as well as had to await certain materials which were not provided as part of those specific parts to be completed at a certain time and necessary to be completed in a particular sequence. 22. During the executory period of the contract, Plaintiff failed to ship certain materials necessary for completion of certain phases of the construction which resulted in significant delays at the work site while awaiting the shipment of the materials which were to be shipped at a particular prior point in time. 23. As a result of the materials not being providing to specification, Defendant had to undertake extensive field work and labor to modify the materials appropriately in order that they conform to the agreed upon approved design prints for the Pennsboro project. 24. All of the above resulted in the necessity of Defendant to undertake extensive field work as well as additional costs for equipment rental. 25. As a direct and proximate result of Plaintiff's failure to provide the material in accordance with the parties' contract: to specifications provided; in the appropriate sequence and bundles; and, being short materials at times, Ames Construction, the general contractor has and continues to refuse to pay Defendant for the work performed. 26. As a direct and proximate result of Plaintiff's breach of the parties' Contract, Defendant incurred on-site field work, equipment rental costs and labor costs in excess of the sum of $30,000.00. WHEREFORE, Defendant respectfully requests that judgment be entered in its favor and against Plaintiff. COUNTERCLAIM 1. Defendant D.F.S., Company, Inc., hereinafter "DFS", is a duly authorized corporation of the Commonwealth with its principle place of business at 4 East Industrial Park Road, Mifflintown, Juniata County, Pennsylvania. 2. Plaintiff is Canam Steel Corporation, hereinafter "Canam", a corporation organized under the laws of the State of Delaware, with its principle place of business at P.O. Box C-285, 4010 Clay Street, Points of Rocks, Maryland. 3. Canam and DFS entered into a contract in which Canam would supply certain steel joists and other materials to DFS for a project known as "Pennsboro Commons, Giant Store #113, in Enola Pennsylvania, hereinafter "the project". A true and correct copy of the Contract is attached hereto as Exhibit "A". 4. Canam was a subcontractor of Plaintiff DFS in the project. 5. Plaintiff DFS was a subcontractor to the general contractor Ames Construction in the project. 6. Under the terms of the contract, Canam was to fabricate specific materials to certain specifications for the Giant Pennsboro Commons project. 7. During the executory period of the contract, Defendant failed to provide the materials fabricated to the specifications required under the parties' Contract. 8. Materials provided by Defendant were not fabricated in a workmanlike manner customary in the parties' business, field or profession or to the agreed upon approved design prints. 9. The materials Plaintiff ordered from Defendant were to be shipped in a certain sequence and in certain bundles for use at the project site. 10. Defendant failed to ship the materials in the appropriate sequence and/or in appropriately separated bundles. 11. As a direct and proximate result of Defendant's shipments out of sequence or in incorrect bundles, Plaintiff's workmen at the project site had to expend lengthy hours of labor to determine which materials were for which part of the project. 12. During the executory period of the contract, Defendant failed to ship certain materials necessary for that part of the project which resulted in extensive delay for DFS in timely completion of the project while awaiting the shipment of the materials which were to be shipped at a particular previous point in time. 13. As a result of the materials provided from Canam not being fabricated to specification, DFS was required to undertake extensive field work and labor to modify the materials appropriately for the design of the Pennsboro project at great expense and cost to DFS. 14. All of the above resulted in the necessity of DFS to undertake extensive field work as well as additional costs for equipment rental. 15. As a direct and proximate result of Plaintiff's failure to provide the materials in accordance with the parties' agreement: to specifications provided; in the appropriate sequence; and bundles; and, shipments of product missing materials at a time when the same was needed in construction; the general contractor has and continues to refuse to pay DFS for the work and services performed. 16. By Canam's failure to provide the materials in accordance with the parties' agreement as stated aforesaid herein, Canam has breached the parties' agreement. 17. As a direct and proximate result of Canam's breach of the parties' Contract, DFS has incurred on site field work, equipment rental costs and labor costs in excess of the sum of $30,000.00. 18. As a direct and proximate result of Canam's breach of the parties' Contract, DFS has incurred loss of profit expected from the project in excess of the sum of $ 90,900.00. 19. Plaintiff is liable to Defendant, for the aforesaid reasons in sum of $ 120,900.00. WHEREFORE, Plaintiff respectfully requests that judgment be entered in its favor and against Defendant in an amount in excess of the sum of $ 120,900.00 along with reasonable costs and attorney fees, and such other further relief the Court deems just. Said sum being a sum greater than the amount requiring local arbitration. RESPECTFULLY SUBMITTED, Date: JOHNSTON, ZAGURSKIE & MUMMAH By K. ZAGURSKIE 117 Main St., P.O. Box O Mifflin, PA 17058 Attorney I.D. 62494 VERIFICATION I, Gary Tweedlie, state that I am the President of the D.F.S. Company, Inc., the Corporation herein, that I am authorized to make this verification on its behalf and that the facts set forth in the foregoing Complaint are true upon my personal knowledge, information and belief. I understand that my statements are made subject to 18 Pa. Cons. Stat. Section 4904 providing for criminal penalties for unsworn falsification to authorities. Date: Gary Tweed he - President D.F.S. Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CANAM STEEL CORPORATION Plaintiff CIVIL ACTION - LAW vs. D.F.S. COMPANY, Defendant No.00-2148 PROOF OF SERVICE AND NOW, I L? . _5 , 2004, I, Donald K, Zagurskie, Esquire, attorney for D.F.S., hereby certify that I served a true and correct copy of the Amended Answer with New Matter and Counter Claim in the above-referenced matter by depositing a certified true and copy thereof by regular mail in the United States Mail, at Mifflin, Pennsylvania addressed as follows: Laura A. Biancke, Esquire Piper Rudnick LLP 3400 Two Logan Square 181h and Arch Streets Philadelphia, PA 19103 Date I:jlSb? JOHNSTON, ZAGURSKIE & MUMMAH By 41Main ZAGURSKIE reet P.O. Box O Mifflin, PA 17058 (717) 436-8044 t) N [, ?? am Q c - i Jl?{ .; C_. -y __ aa[_ f'T'?? 7 OtT? ^? On ?t c? Joseph Kemen, Esquire Laura A. Biancke, Esquire Identification Nos.: 56343/87625 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 215-656-3300 CANAM STEEL CORPORATION Plaintiff, V. D.F.S. COMPANY, INC. Defendant. Attorneys for plaintiff, Canam Steel Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action No. 00-2148 CANAM STEEL CORPORATION'S RESPONSE TO DEFENDANT D.F.S. COMPANY, INC.'S AMENDED NEW MATTER AND COUNTERCLAIM Plaintiff, Canam Steel Corporation ("Canam"), by and through its counsel, Piper Rudnick LLP, hereby responds to the Amended New Matter and Counterclaim of defendant, D.F.S. Company, hie., as follows: NEW MATTER 14. Admitted. 15. Denied. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this ORIGINAL paragraph of the defendant's New Matter. 16. Denied. The contract at issue in this litigation is in writing and speaks for itself. Plaintiff respectfully refers defendant to the written contract for its precise terms. 17. Denied. The allegations of this paragraph of defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. 18. Denied. The allegations of this paragraph of defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. 19. Denied. Defendant has failed to provide plaintiff with any documentation that substantiates the allegations of this paragraph of defendant's New Matter. 20. Denied. Defendant has failed to provide plaintiff with any documentation that substantiates the allegations of this paragraph of defendant's New Matter. 21. Denied. The allegations of this paragraph of defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. By way of further answer, after reasonable investigation plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the defendant's New Matter. 22. Denied. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the defendant's New Matter. 23. Denied. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the defendant's New Matter. 24. Denied. Defendant has failed to provide plaintiff with any documentation that substantiates the allegations of this paragraph of defendant's New Matter. 25. Denied. The allegations of this paragraph of defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. By way of further answer, plaintiff incorporates by reference its answer to paragraph 24, above. 26. Denied. The allegations of this paragraph of defendant's New Matter state conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. By way of fir-ther answer, defendant has failed to provide plaintiff with any documentation that substantiates the remaining allegations of this paragraph of defendant's New Matter. WHEREFORE, plaintiff, Canam Steel Corporation, demands judgment in its favor and against defendant, D.F.S. Company, hic., in the amount of $26,298.90, plus pre- judgment interest and the costs of this action, and any other relief as the Court deems appropriate. 3 COUNTERCLAIM 1. Denied. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of defendant's Counterclaim and they are denied. 2. Admitted. 3. It is admitted that Canam and D.F.S. entered into a contract (the "Contract") pursuant to which Canam would supply certain steel joists to D.F.S. for a project known as "Pennsboro Commons, Giant Store 4113," in Enola, Pennsylvania (the "Project"), and that a copy of the Contract is attached to defendant's Counterclaim. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of defendant's Counterclaim and they are denied. 4. Denied. The allegations contained in paragraph 4 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. 5. Denied. The allegations contained in paragraph 5 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent these allegations are deemed factual, after reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the Counterclaim and they are denied. 6. Denied. The allegations contained in paragraph 6 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil 4 Procedure. To the extent these allegations are deemed factual, the Contract, being in writing, speaks for itself and plaintiff denies any characterization of it by defendant contrary to its terms. 7. Denied. The allegations contained in paragraph 7 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent these allegations are deemed factual, they are denied. Canam denies that it failed to perform any obligation required by the Contract. 8. Denied. The allegations contained in paragraph 8 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent these allegations are deemed factual, they are denied. Canam denies that it failed to perform any obligation required by the Contract or imposed by law, or that it provided any materials that were not fabricated in a workmanlike manner. 9. Denied. The allegations contained in paragraph 9 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent these allegations are deemed factual, the Contract, being in writing, speaks for itself and plaintiff denies any characterization of it by defendant contrary to its terms. 10. Denied. The allegations contained in paragraph 10 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent these allegations are deemed factual, they are denied. Canam denies that it failed to perform any obligation required by the Contract. 11. Denied. The allegations contained in paragraph 11 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent the allegations contained in this paragraph are deemed factual, it is denied that plaintiff failed to perform any obligation as required by the Contract. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of the Counterclaim and they are denied. 12. Denied. The allegations contained in paragraph 12 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent the allegations contained in this paragraph are deemed factual, it is denied that plaintiff failed to perform any obligation as required by the Contract. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of the Counterclaim and they are denied. 13. Denied. The allegations contained in paragraph 13 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent the allegations contained in this paragraph are deemed factual, it is denied that plaintiff failed to perform any obligation as required by the Contract. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of the Complaint and they are denied. 14. Denied. The allegations contained in paragraph 14 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent the allegations contained in this paragraph are deemed factual, it is denied that plaintiff failed to perform any obligation as required by the Contract. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of the Counterclaim and they are denied. 15. Denied. The allegations contained in paragraph 15 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent the allegations contained in this paragraph are deemed factual, it is denied that plaintiff failed to perform any obligation as required by the Contract. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of the Counterclaim and they are denied. 16. Denied. The allegations contained in paragraph 16 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent the allegations contained in this paragraph are deemed factual, it is denied that plaintiff failed to perform any obligation as required by the Contract, or that plaintiff breached the Contract in any way. 17. Denied. The allegations contained in paragraph 17 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent the allegations contained in this paragraph are deemed factual, it is denied that plaintiff failed to perform any obligation as required by the Contract, that plaintiff breached the Contract in any way, or that defendant has incurred any expenses or costs as a result of any action by plaintiff. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of the Counterclaim and they are denied. 18. Denied. The allegations contained in paragraph 18 of defendant's Counterclaim state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent the allegations contained in this paragraph are deemed factual, it is denied that plaintiff failed to perform any obligation as required by the Contract, that plaintiff breached the Contract in any way, or that defendant has incurred any expenses or costs as a result of any action by plaintiff. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of the Counterclaim and they are denied. WHEREFORE, plaintiff Canam Steel demands judgment in its favor and against defendant D.F.S. Company, Inc., in the amount of $26,298.90, plus pre-judgment interest and the costs of this action, and any other relief as the Court deems appropriate. Respectfully submitted, -7 d Kel en ura A. Bianck iper Rudnick L P 400 Two Logan Square 18`h and Arch Streets Philadelphia, PA 19103 (215) 656-3300 Attorneys for plaintiff, Canam Steel Corporation Dated: January 23, 2004 yERIH+ICATION I, Mary Anne Davenport, state that I am the Credit Manager of Canam Steel Corporation, the defendant in this action, that I am authorized to make this verification on its behalf, and that the facts set forth in the foregoing Response to Defendant's Amended New Matter and Counterclaim are true upon my personal knowledge, information and belief. I understand that my statements are made subject to 18 Pa. Cons. Stat. § 4904 providing for criminal penalties for unworn falsification to authorities. Dated: ? Jtw a g' Z)t:ay Mary Davenport Credit Manager, Canam Steel Corporation CERTIFICATE OF SERVICE I certify that on January 23, 2004, a true and correct copy of Canam Steel Corporation's Response to Defendant D.F.S. Company, Inc.'s Amended New Matter and Counterclaim, was served by first-class mail, postage prepaid, addressed as follows: Donald K. Zagurskie, Esquire Johnston, Zagurskie & Mummah 117 Main Street P.O. Box 0 Mifflin, PA 17058 c-a C7 C r --e ` ?i"l t"' , ? _?, m `? _ ii 7 ?1?,? n ? rz% s ?? -? c? Renee K. Simpson Deputy Prothonotary Curtis R. Long Prothonotary e ?ot?j?o?cotacrp Office Of xbl C,uriaberta'ab (Couutp John E. Slike Solicitor CIVIL TERM TERMINATION OF COURT CASES ORDER OF 2007 AFTER MAILIN HE ABO OF _r14 DAY OF NOMBER SPONSE T AND NOW THIS 5 RECEIVING NO RE ACCORDANCE WITH PA AND INTENTION TO PROCEED NTH PRE?}ICE IN TERMINATED CASE IS HEREBY R C P 230.2. TTIS COURT, CU'R R LONG PROTHONOTARY -m„rthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573