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Home My WebLink About03-1593 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY D.F.S. COMPANY, Inc., Plaintiff CIVIL ACTION - LAW VS. CANAM STEEL CORPORATION, Defendant 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 defense 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 NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. MIDPENN LEGAL SERVICES 2054 East College Avenue State College, PA 16801 (814) 238-4958 JOHNSTON, ZAGURSKIE & MUMMAH J D~onald K. Zagurskie 117 Main St., P.O. Box 0 Mifflin, PA 17058 (717) 436-8044 Attorney for Plaintiff I.D.~ 62494 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY D.F.S. COMPANY, Inc., CIVIL ACTION - LAW Plaintiff VS. CANAM STEEL CORPORATION, Defendant No. ~3- /$g3 COMPLAINT AND NOW, comes the Plaintiff, D.F.S., Company, Inc., by and through its attorneys, Johnston, Zagurskie and Mummah, and files the within Complaint and in support thereof states the following: 1. Plaintiff 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, Miffiintown, Juniata County, Pennsylvania. 2. Defendant 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. 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, JOHNSTON, ZAGURSKIE & MUMMAH DONA[D,~. 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 ~i'weedlie - President D.F.S. Company, Inc. EXHIBIT "A" C) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY D.F.S. COMPANY, Inc., CIVIL ACTION - LAW Plaintiff vs. No.03-1593 CANAM STEEL CORPORATION, Defendant PROOF OF SERVICE AND NOW, z,~. ~,~., ,,~ ,,/// ,20C1~, I, Donald K. Zagurskie, Esquire, attorney for D.F.S., hereby certify that on April 11,2003 I served a true and correct copy of the Complaint in the above-referenced matter by depositing a certified true and copy thereof in the United States Mail, Certified Mail, restricted delivery, Return Receipt Requested Mail Number 7001 2510 007 5704 4412 at Mifflin, Pennsylvania addressed as follows: CANAM STEEL CORPORATION P.O. BOX 285 4010 CLAY STREET POINT OF ROCKS, MD 21777-0285 Date JOHNSTON, ZAGURSKIE & MUMMAH DONALD K.'ZAGURSKIE 117 Main Street P.O. Box O Mifflin, PA 17058 (717) 436-8044 Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Detivery Fee (Endorsement Required) Total Postage & Fees · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 2. Article Number (Transfer frorr~ ~ervice /abe/) PS Form 3811, August 2001 ~. Is dellv;~/addr~'~s different from item If YES, enter delivery address below: [ 3. ~L~vice Type ~Certified Mail [] Express Mail [] Registered [] Return Receipt for Memhandise I-I Insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] Yes 7001 2510 0007 5704 4412 " Domestic Return Receipt ...2~95-01-M-2509 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 D.F.S. COMPANY, INC. East Industrial Park P.O. Box 172 Miflintown, PA 17059 Plaintiff, Vo CANAM STEEL CORPORATION P.O. Box C-285 4010 Clay Street Point of Rocks, MD 21777-0285 Defendant. PLAINTIFF you are hereby notified to file a written response to the enclosed NEW MATTER within twenty (20) days from service hereof or a judgment may be entered against you. //~to~neys for Dj~fendfim_ t, (x_~/mam Steel Co' rporation COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action No. 03-1593 ANSWER AND NEW MATTER OF DEFENDANT CANAM STEEL CORPORATION Defendant, Canam Steel Corporation ("Canam"), by its counsel, Piper Rudnick LLP, responds to the complaint of plaintiff, D.F.S. Company, Inc., as follows: 1. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the complaint. 2. Admitted. 3. 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 #113," in Enola, Pennsylvania (the "Proj ect"), and that a copy of the Contract is attached to plaintiff's complaint. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph of plaintiff's complaint. 4. Admitted. 5. Admitted. 6. Denied. The allegations contained in paragraph 6 of plaintiff's complaint 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 defendant denies any characterization of it by plaintiff contrary to its terms. 7. Denied. To the contrary, all materials provided by Canam were fabricated as required by the Contract. In further answer, the allegations contained in paragraph 7 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. 8. Denied. To the contrary, all materials provided by Canam were fabricated in a workmanlike manner and as required by the Contract. In further answer, the allegations contained in paragraph 8 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. 9. Denied. The allegations contained in paragraph 9 of plaintiff's complaint 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 defendant denies any characterization of it by plaintiff contrary to its terms. 10. Denied. To the contrary, Canam shipped the materials as required by the Contract. In further answer, the allegations contained in paragraph 10 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. 11. Denied. To the contrary, Canam shipped the materials as required by the Contract and Canam denies that plaintiff expended time or resources as a result of any improper or unlawful action by Canam. In further answer, the allegations contained in paragraph 11 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. After reasonable investigation, defendant 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. 12. Denied. To the contrary, Canam shipped all materials as required by the Contract. In further answer, the allegations contained in paragraph 12 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the troth of the remaining allegations contained in this paragraph of the complaint and they are denied. 13. Denied. To the contrary, Canam provided materials that were fabricated as required by the Contract and Canam denies that plaintiff suffered any expenses or costs as a result of any improper or unlawful action by Canam. In further answer, the allegations contained 3 in paragraph 13 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. 14. Denied. To the contrary, Canam performed as required by the Contract and Canam denies that plaintiff suffered any expenses or costs as a result of any improper or unlawful action by Canam. In further answer, the allegations contained in paragraph 14 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. 15. Denied. To the contrary, Canam provided all materials as required by the terms of the Contract, and Canam denies that the general contractor refuses to pay DFS as a result of any improper or unlawful action by Canam. In further answer, the allegations contained in paragraph 15 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. In further answer, to the extent the allegations contained in this paragraph are deemed factual, it is denied that defendant failed to perform any obligation as required by the Contract in any event. 16. Denied. To the contrary, Canam provided all materials as required by the terms of the Contract and it was plaintiff, not Canam, that breached the contract by failing to pay Canam for the materials provided by Canam. In further answer, the allegations contained in paragraph 16 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. 17. Denied. To the contrary, it was plaintiffDFS, not Canam, that breached the contract and Canam denies that plaintiff has suffered any costs or expenses as a result of any improper or unlawful action by Canam. In further answer, the allegations contained in paragraph 4 17 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. 18. Denied. To the contrary, it was plaintiff DFS, not Canam, that breached the contract and Canam denies that plaintiffhas suffered any costs or expenses as a result of any improper or unlawful action by Canam. In further answer, the allegations contained in paragraph 17 of plaintiff's complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure in any event. WHEREFORE, defendant Canam Steel Corporation respectfully requests that this Court enter judgment in its favor and against plaintiffD.F.S. Company, Inc., along with reasonable costs and attorneys' fees, and any other relief as the Court deems appropriate. NEW MATTER 19. 20. 21. 22. 23. 24. 25. 26. 27. Plaintiff's clmms are barred by the applicable statute of limitations. Plaintiff's claims are ban'ed by waiver. Plaintiff's claims are barred by estoppel. Plaintiff's clmms are barred by laches. PlaintiW s claims are barred because of a lack of consideration. Plaintiff's claims are barred by release. Plaintiff's claims are barred by the Statute of Frauds. PlaintiWs claims are barred by plaintiWs material breach of the contract. Plaintiff's claims are barred and/or limited by plaintiff's failure to mitigate damages. 28. Plaintiff's claims are barred by the doctrine of avoidable consequences. WHEREFORE, defendant Canam Steel Corporation respectfully requests that this Court enter judgment in its favor and against plaintiff D.F.S. Company, Inc., along with reasonable costs and attorneys' fees, and any other relief as the Court deems appropriate. Respectfully submitted, J eph Kemen (/~u~ra A. Bianck/ "-'Piper Rudnick LLP 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 (215) 656-3300 Attorneys for Defendant, Canam Steel Corporation Dated: May 1, 2003 3621767 VERIFICATION 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 Answer and New Matter 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 unsworn falsification to authorities. Dated: Credit Manager, Canam Steel Corporation CERTIFICATE OF SERVICE I certify that on May 1, 2003, a copy of defendant's Answer and New Matter to plaintiff's complaint, 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 A. Bianck/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY D.F.S. COMPANY, INC. Plaintiff VS. CANAM STEEL CORPORATION Defendant CIVIL ACTION - LAW No. 03-1593 REPLY TO NEW MATTER 19.-28. These are conclusions of law to which no response is required. If an Answer is deemed required, all of the allegations contained in Defendant's New Matter are denied and strict proof thereof is demanded at trial. Respectively Submitted, JOHNSTON, ZAGURSKIE & MUMMAH DONALD. ff~.,/Z~GURS KIE, ESQUIRE 117 MAIN STREET P.O. BOX 0 MIFFLIN, PA 17058 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 document 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. Gary Tweedlie - President D.F.S. Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY D.F.S. COMPANY, INC. Plaintiff VS. CANAM STEEL CORPORATION Defendant CIVIL ACTION - LAW No. 03-1593 .PROOF OF SERVICE AND NOW, .(~ I ~ ' 2003, I, Donald K. Zagurskie, Esquire, attomey for D.F.S. Company, Inc., in the above-captioned matter, hereby certify I served a true and correct copy of the Reply to New Matter by depositing the same in the United States mail, at Mifflin, Pennsylvania, addressed to the following person at the following address: JOSEPH KERNEN LAURA A. BIANCKE PIPER RUDNICK LLP 3400 TWO LOGAN STREET 18TM AND ARCH STREETS PHILADELPHIA, PA 19103 JOHNSTON, ZAGURSKIE & MUMMAH K. ZAGURSKIE 117 Main Street P.O. Box O Mifflin, PA 17058 Joseph Kernen, Esquire Laura A. Biancke, Esquire Identification Nos.: 56343/87625 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 215 -656-3300 D.F.S. COMPANY, INC. East Industrial Park P.O. Box 172 Miflintown, PA 17059 Plaintiff, CANAM STEEL CORPORATION P.O. Box C-285 4010 Clay Street Point of Rocks, MD 21777-0285 Defendant. Attorneys for Defendant, Canam Steel Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action No. 03-1593 MOTION OF DEFENDANT CANAM STEEL CORPORATION FOR SUMMARY JUDGMENT Defendant, Canam Steel Corporation ("Canam"), by its counsel, Piper Rudnick, LLP, moves for summary judgment against plaintiff, D.F.S. Company, Inc. ("D.F.S."), on the ground that the statute of limitations for D.F.S.'s alleged claims has expired. In support thereof, Canam states as follows: 1. On or about October 14, 1998, Canam and D.F.S. entered into a contract trader which Canam would provide, and D.F.S. would purchase, steel joists and other materials for a project in Enola, Pennsylvania (the "Contract"). A true and correct copy of the Contract is attached hereto as Exhibit "A." 2. The total sale price of the material was $291,640.00. Exhibit A. 3. Pursuant to the terms of the Contract, Canam's de. livery of the materials was scheduled for January 4, 1999. Exhibit A. 4. Canam delivered the materials between January 14, 1999 and January 25, 1999. True and concect copies of the bills of lading for the materials are.. attached hereto as Exhibit "B." 5. After taking delivery o£the materials, D.F.S. complained to Canam, in a letter dated February 22, 1999, that alleged nonconformities in Canam"s performance under the Contract caused damages to D.F.S. Correspondence from D.F.S. to Canam, dated February 22, 1999, attached hereto as Exhibit "C." 6. On April 7, 2003, D.F.S. filed the instant action against Canam. See Complaint. 7. Section 2725(a) of the Pennsylvania Commercial Code, titled "Statute of limitations in contracts for sale," provides that: "An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued .... " 13 Pa. C.S.A. § 2725(a). 8. Section 2725(b), "Accrual of cause of action," provides that "A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach ..... " 13 Pa. C.S.A. § 2725(b). 9. In its complaint, plaintiff alleges that Canam breached the Contract by failing to provide the materials "in accordance with the parties' agreement: to specifications provided; in the appropriate sequence; and bundles; and, shipments of produc:t missing materials at a time when the same was needed in construction .... "Complaint, ¶ 1:5. 10. Because plaintiff filed its complaint more than four years after its cause of action accrued, its claim is barred by the statute of limitations, 17 Pa. C.S.A. § 2725, and the complaint should be dismissed in its entirety, with prejudice. WHEREFORE, defendant Canam Steel Corporation, respectfully requests that the Court grant its Motion for Summary Judgment, enter judgment in favor of Canam and against plaintiff, D.F.S. Company, Inc., and dismiss plaintiff's complaint in its entirety, with prejudice. Respectfully submitted, ~ L°aS4rPahAK. ~3?a~nc k e /-- e . 00 wUodn Cokg &u 18th and Arch Streets Philadelphia, PA 19103 (215) 656-3300 Attorneys for Defendant, Canam Steel Corporation Dated: October 14, 2003 3 CERTIFICATE OF SERVICE I, Laura A. Biancke, certify that on October 14, 2003, a copy of the foregoing Motion of Defendant Canam Steel Corporation for Summary Judgment, 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 ja A. Biancke// 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 D.F.S. COMPANY, 1NC. East Industrial Park P.O. Box 172 Miflintown, PA 17059 Plaintiff, CANAM STEEL CORPORATION P.O. Box C-285 4010 Clay Street Point of Rocks, MD 21777-0285 Defendant. Attorneys for Defendant, Canam Steel Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action No. 03-1593 EXHIBITS TO MOTION FOR SUMMARY JUDGMENT Joseph Kernen Laura A. Biancke Piper Rudnick LLP 3400 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 (215) 656-3300 Attorneys fi)r Defendant, Canam Steel Corporation canam .j :/ Ro. sox POINT OE ROCKS. MD I 'lB.: {301) 6';'4-5141 FAX: (301) 874-2~46 '-Iii II];I l; ItJht[, 207)3 DATE 01/22/!}9 .,m-.P~m' .o. 1,, 784 ~ CUENT NAME ~ D.F.S., CO. PROJECT NO. PTJRCI~E ORDER NQ 8-2995 SIGNED SALES CONTRACT GIANT STORE 113 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 SOUTHERN STL DECK DIRECT E]F'O'B' YOUR PLANT E] 1 12 2 12 3 4 2 2 2 ? 2 9 4 9 4 10 6 12 6 13 21 14 62 16 135 17 21 19 12 20 12 21 24 1 A B 1 A B C D E F 1 A B C D E F G H J K L M N O P DECK - 36 DECK - 36 015'03''00/00 4,648 018'10''00/00 5,740 DECK DECK DECK DECK DECK DECK - 36 - 36 - 36 - 36 - 36 - 36 023'00''00/00 7,010 023'06''00/00 7,163 017'04''00/00 5,283 019'03''00/'00 5,867 015'03''00/00 4,648 005'02''00/00 1,575 DECK DECK DECK DECK DECK DECK DECK DECK DECK DECK DECK DECK DECK DECK DECK 36 36 36 36 36 36 36 36 36 36 36 36 36 36 36 016'00''00/00 4,877 019'00''00/00 5,791 021'05''00/00 6,528 021'08''00/00 6,604 022'09''00/'00 6,934 022'05''00/00 6,833 022'07''00/00 6,883 022'08''00/00 6,909 016'04''00/00 4,978 021'10''00/00 6,655 020'01''00/00 6,121 020'05''fl0/00 6,223 020'06''00/00 6,248 027'02''00/00 8,280 024'07''00/00 7,493 516519 516520 516521 steel 20734 01/22/!19 No. 1. ~ 784 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 D.F.S., CO. 8-2995 SIGNED SALES CONTRACT GIANT STORE 113 $OUT}{ERN STL DECK DIRECT 0F.O.S.~,~A~ 24 2 12 ~ 24 " 12 12 8'~' 10 ? 10 8 22 ~ 12 ~0 6 ~ 6 ~2 12 13 12 14 12 ~s 20 ~s 20 ~7 28 ~8 4 ~9 4 20 4 2, 4 22 4 9,000 6,000 9,000 1 R S T V W X Y U AA AB AD AE AF AG AL AM AN AO AP AQ *1 *2 *3 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 DECK - 36 #10 SIDE LAP SC #10- SIDE LAP S wELD wASEERS 019'09''00/00 6,020 022'10''00/00 6,960 022'03''00/00 6,782 020'02''00/00 6,147 020'09''00/00 6,325 019'07''00/00 5,969 025'08''00/00 7,823 023'09''00/00 7,239 021'02''00,/00 6,452 021'06''00/00 6,553 013'06''00./00 4,115 020'00''00/00 6,096 027'09''00/00 8,458 019'03''00/00 5,867 026'09''00/00 8,153 021'11''00/00 6,680 024'08''00,'00 7,518 025'05''00/00 7,747 023'06''00/00 7,163 022'01''00/00 6,731 027'05''00/'00 8,357 014'09''00/00 4,496 0 0 0 516521 canam steel P.O. BOX 20735 01/22/99 ~E~. 1{784 CUENT NAME D.F.S., CO. 8-2995 SIGNED SALES CONTRACT GIANT STORE 113 GIANT STORE 113 Ames Con{;truction 310 E. Penn Dr. ENOLA PA 17025 SOUTHERN STL DECK DIRECT I5,000 12 '~ 12 2O 20 3,400 3,000 11 13 8 14 4 16 8 17 4 19 8 20 900 21 850 22 23 80 24 40 25 80 28 1 *4 3 I AC L AJ AK *1 *2 2 dl d2 d3 d4 d5 d6 d7 d8 *2 4 hl b2 b3 wELD wASHERS 0 DECK - 36 027'07''00/00 8,407 DECK - 36 019'05''00/00 5,918 DECK - 36 015'02''00/00 4,623' DECK - 36 020'01''00/00 6,121 DECK - 36 027'06''00/00 8,382 DECK - 36 022'00''00/00 6,706 ~10 SIDE LAP SC 0 Weld Washers 0 DECK - 36 019'03''00/00 5,867 DECK - 36 017'10''00/00 5,436 DECK - 36 012'09''00/00 3,886 DECK - 36 022'00''00/00 6,706 DECK - 36 020'05''00/00 6,223 DECK - 36 016'04''00/00 4,978 DECK - 36 028'10''00/00 8,788 DECK - 36 027'~6''00./00 8,382 #10 sis 0 weld washers 0 DECK - 36 DECK - 36 DECK - 36 027'06''00/00 8,382 025'02''00/00 7,671 022'06''00/00 6,858 516.521 516323 516538 516539 20 36 TEL: (301) 874-5141 FAX: (301) a74-2~46 DATE 01/22/ 99 ~_J S~M,~m' .0. ] 4784 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 CLIENT NAME D.F.S., CO. 8-2995I SIGNED SALES CONTRACT ~Me GIANT STORE 113 · ....... ..~ --- .............. ... ........ ~ ~ ........ . SOUTHERN STL DECK DIRECT [-]FO.B.Y(~JRP[~NT r~ 10 40 20 2O 20 40 11 8,500 12 8,000 ~s 20 16 17 18 19 20 21 22 23 24 2.5 4 b4 b5 b6 b7 b8 b9 bi0 bll b12 b13 '1 *2 4 al a2 DECK - 36 022'02''00/00 6,756 DECK - 36 019'09''00/00 6,020 DECK - 36 017'03''00/00 5,258 DECK - 36 025'01''00/00 7,645 DECK - 36 027'01''00/00 8,255 DECK - 36 027'04''00/00 8,331 DECK - 36 022'04''00/00 6,807 DECK - 36 029'10''00/00 9,093 DECK - 36 030'00''00/00 9,144 DECK - 36 008'00''00/00 2,438 #10 sis 0 weld washers 0 DECK - 24 DECK - 24 019'00''0'0/00 5,791 011'00''00/00 3,353 516539 51(;540 l' Poerr OF ROCKS, MO 2~777-02aS 20648 01/15/9) 14727 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 CL~NT NAME D.F.S., CO. 8-2995 SIGNED SALES CONTRACT NAME GIANT STORE 113 can ruck TRAILER 35 7 8 9 10 11 12 15 17 18 19 20 21 , 22 23 24 25 : 26 1 JSA J5 J7 J2 J9 J9A 070'02''15/16 070'02''15/16 070'02''15/16 070'02''15/16 070'05''15/16 070'05''15/16 127746 P.O. BOX G-~ 20649 ~m 01/15/!'9 ,~,'#PMENT NO. 1~ 728 CUEN~r NAME D.F.S., CO. 8-2995 SIGNED SALES CONTRACT ~,,~E GIANT STORE 113 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 Canam Truck ~"]FOS. YO~m.~ ~ TRAILER 9 i 127728 1 G4 067' 06' ' 01/02 3 1 G6' 066' 05' ' 01/02 4 1 G2 064'09' '03/04 1 G8 060' 02' ' 01/02 S% _~" 3 127729 1 'G9 060' 01' ' 03/04 3 127730 8 9 1 Gl0 060'01' '03/04 10 11 12 14 15 ~4 RO. BOX C-285 POINT OF ROCKS, MO 2~Tr7-02~5 ~[..: (~01) ~74.5t 41 FAX: (301) 874-264~ 20663 01/16/99 ~ENT NO. 14"36 D.F.S., CO. 8-2995 SIGNED SALES CONTRACT GIANT STORE 113 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 ~.~ O..o.".ou"~^"~ Canam Truck ~:.O.S, vouRm.~n' E] TRAILER 40 127746 ;o 15 2o 21 22 ! 24 1 3 1 1 ~ 1 J 2 1 6 2 1 9 1 J7 J9A J10 J1 JllA Jll J8 J4 J4A J3A J3 070'02''15/16 070'05''15/16 070'05''15/16 070'02''15/16 070'02''15/16 070'02''15/16 070'02''15/16 070'02''15/16 070'02''15/16 070'02''15/16 070'02''15/16 P.O. BOX C-~S IIIIII1]1 ~!1 I11~11 20661 DATE 01/16 /99 8HIPMEhrr NO. L 4 7 3 7 D.F.S., CO. 8-2995 SIGNED SALES CONTRACT GIANT STORE 113 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 Canam Truck [::]F.OB. YOURP%ANT r-] TRAILER 37 3 3 27 ? 8 12 ;5 ~7 24 1 J6 J3 J4C J15 070'02''15/16 070'02''15/16 070'02''15/16 068'07''11/16 127746 D.F.S., CO. 8-2995 SIGNED SALES CONTRACT 2067 01/19/9') 14144 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 NAmE GIANT STORE 113 _______~___~~--~-- Canam Truck TRAILER 11 ...... 1 1 2 1 3 1 4i 1 5 ~,260 ~-~,260 8 9 10 -o 14 ~ 22 13 72 14 8 l~ 96 le 80 17 16 ~ 88 32 2 2 6 2 2 1 G3 G5 G1 G7 B1 E2 1 122 121 120 119 118 117 116 115 114 113 111 110 133 131 130 129 127 067'06''01/02 066'05''01/02 064'09''03/04 060'02''01/D2 000'00''00/00 OOO'O0''O0/O0 005"11''01/04 005'10''11/16 005'08''00/00 004'03''00/00 006'03''07/16 006'03''00/00 006'02''03/04 006'03''13/16 006'03''09/16 006'01''01/16 003'08''03/04 005'08''01/04 003'07''09/16 005'10''05/08 005'10''01/02 005'10''01/16 005'09''15/16 127734 127735 canam CUENT NAME D.F.S., CO. 8-2995 SIGNED SALES CONTRACT GIANT STORE 113 20673 01/19/9 ) ~o 14 744 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 Canam Truck OF.O.~YOU~PL~NT ~ -~-- TRAILER 11 127735 I 22 2 6 3 4 4 24 s 72 _.. 96 8 8 ~ 48 ~ 72 12 56 13 8 14 2 16 17 15 lS 43 19 133 2o 27 21 22 5 23 15 24 25 8 1 126 125 123 109 108 107 106 105 104 103 102 101 100 002 001 1 al a2 a3 a4 1 900 901 1 800 005'10''03/16 005'10''07/08 005'10''15/16 004'01''15/16 004'10''15/16 005'07''05/08 005'08''81/16 005'10''05/08 005'06''03/04 005'03''01/04 006'02''01/08 005'08''07/08 005'06''05/16 005'05''01/02 005'11''01/02 020'00''00/00 020'00''00/00 020'00''00/00 020'00''00/00 006'04''00/00 009'10''00/00 001'00''00/00 127739 127763 516528 P.O. BOX C-285 Polar Ol· ROCKS, MC} 21777.G~.8S TEL.: (301) 874.5141 FAX: (301) 874.2646 206' 4 01/19/99 SNP.ENT NO. 14744 D.F.S., CO. 8-2995I SIGNED SALES CONTRACT GIANT STORE 113 DESTINATION GIANT STORE 113 .. Ames Construction 310 E. Penn Dr. ENOLA PA 17025 Canam Truck 0F.O.~YOu~PLANT 0 TRAILER 11 ~ 18 2 60 $ 30 9 10 12 15 18 19 20 24 1 801 BAC BOLTS 000'08' '00/00 000' 02' ' 01/02 516528 PO i;lOx G 265 POINT OF ROCKS, IdD 21777-0265 TEL.: (301) 874-5141 FAX: (301) 974-264~ 20676 NO. lZ 746 D.F.S., CO. GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 ~--2995 SIGNED SALES CONTRACT GIANT STORE 113 Canam Truck ~ Fa5 ~R ~ TRAILER 32 2 6 3 1 1 s' 4 ~ , 1 16 1 15 ~6 20 22 23 24 25 1 J24 ' J20 J23 J20A J18 J19 J17A J17 J21 J22 055'02''07/08 054'11''05/08 054'11''05/08 054'07''03/08 055'02''15/16 055'02''15/16 055'02''15/16 055'02''15/16 054'11''0~/~8 ~F34'11''05/08 127748 canarn ,tee, 206 5 ~ 01/19/~ 9 SHIPMENT NO. 14750 D.F.S., CO. 8-2995 SIGNED SALES CONTRACT GIANT STORE 113 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 Cana.m Truck TRAILER #33 ~o 15 11 2 ~2 2 13 3 2o 1 J5A J15 J16 J15A 1 J14A J14B J14 1 J28 J30 J27 J29 J26 070'02''15/16 068'07''11/16 068'07''11/16 068'07''11/16 034'08''03/08 034'08''03/08 034'08''03/08 024'10''01/04 024'10''01/04 024'10''01/04 024'10''01/04 024'10''01/04 127746 127749 127752 CtJENT NAME D.F.S., CO. 8-2995 SIGNED SALES CONTRACT GIANT STORE 113 20719 ~E 01/22,99 ~ NO. ] 4775 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 ] 0 ~.o~o,, ~-~.,- OXo~ Canam Truck E]FO'S'YOURPU*'NT 0 trailer #40 4 ? 31 4 17 18 19 2O 22 23 24 25 26 4 J43 J36 J42 J37 J45 J38 J41 059'02''03/04 059'03''03/08 059'03''03/08 059'03''03/08 059'03''03/08 059'03''03/08 059'03''03/08 127818 20i 2O s.,~ ~. .4776 GIANT STORE 113 Ames Construction 310 E. ]Penn Dr. ENOLA PA 17025 D.F.S., CO. 8-2995 SIGNED SALES CONTRACT GIANT STORE 113 Canam Truck D F.O.~YOt~PLANT trailer #34 B1 E2 3 007 006 00§ 004 141 140 139 138 137 136 135 134 3 a3 a4 3 J5B J13 J4B J15 J15A 3 000'00''00/00 000'00''00/00 003'06' 01/82 004'10' 00/00 004'03' 01/02 005'05' 00/00 003'04' 03/08 005'09' 01/16 005'09' 01/02 004'00' 01/04 006'01' 07/08 006'02''05/16 005'06''07/08 005'07''01/16 020'00''00/00 020'00''00/00 070'02''15/16 070'02''15/16 070"02''15/16 068'07''11/16 068'07''11/16 127736 127737 127738 127753 127755 I"% steel D.F.S., CO. GIANT STORE 113 2072: . 01/22/99 ~P~NTNO. 14776 ~STINATION GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 519 519 2 2 28 13 66 ~4 30 4 34 17 4 15 24 19 2o 160 21 22 48 23 20 24 16 2,5 26 3 J25 J25A J17 J17A Bi E2 4 143 142 141 140 139 138 137 136 135 010 4 al 3 BAC BOLTS 801 055'03''07/08 055'03''07/08 055'02''15/16 055'02''15/16 000'00''00/00 000'00''00/00 005'04''13/16 005'0§''09/16 005'05''01/08 005'04''07/08 005'05''01/04 005'04''03/16 005'04''07/16 005'05''03/08 005'04''03/04 003'07''00/00 020'00''00/00 000'02''01/02 000'08''00/00 1:17755 127911 127912 127913 5]6527 20i31 o~ 01/2§~ 99 ~,~ ~o. ] 4782 CIJIENT NAME D.F.S., CO. 8-2995 SIGNED SALES CONTRACT ~ GIANT STORE 113 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 Canam Truck TRAILER 1 15 19 2O 21 23 24 25 26 4 J39 J43 J38 J41 J35 J44 4 J40 059'03''03/08 059'02''03/04 059'03''03/08 059'03''03/08 059'02''03/04 059'02''03/04 059'02''03/04 127818 127,919 steel 20"32 · point OF ROCKS..0 ~1 rtt~ ~T~ 01/25/99 SHIPMENT NO. 14783 GIANT STORE 113 Ames Construction 310 E. Penn Dr. ENOLA PA 17025 (;UENT NAME D.F.S., CO. 8-2995 SIGNED SALES CONTRACT N~ GIANT STORE 113 Canam Truck ~ ¢.O,S. ~R P~T ~ TRAILER 38 11 12 13 15 16 lg .20 22 23 24 25 26 4 J42 J41 4 bae 059' 03''03/08 059' 03' ' 03/08 000' 02' ' 01/02 127818 516584 02/22/99 11:45 7542 C.~LNA~-PA PROJ, ~GT. ~002J Atln:~lm C~u. mm. S[eel D~:e:. · , 2/22/99 From: Ga~ Tv,~edlie Re~. Pennsboro Enclosed please tirol AMES responas to Change o~' fffi. DFS ~ I~ ~ e~ ~ falling p~le~ ~ ~erials detlvemd No X ~ddgi~ for ~ ~ ~ Gia~ ~- ...... ' ' ~ not sod~ ~r I~fion (fr~ ~ ~ ~ ~om m s~e o~dl~) -- qo ~ ~[I ~v~e on mmil ~a as ~ Gary CANAli-PA PROJ. ~GT. ~1oo8 Febn~-y ~, 1999 DFS Company, Inc, E. ~ P~I~ Road P OBox 172 Miffih~own PA 17059 TI~' followin$ is z response to your extr~ ~ $~'"rY 1 S, 1999, Pleuc respond to ~kis le~er so we oan cl~ar -p these items. I. ~ anSte oo. ekctch gA,. -Th~ a~ngle will ~ ~ ~ ~e ~ ~-~ ~y- '~ ~ ~ ~ ~, ~ deck ~ on.~ ~1, ~f~ ~ ~lc is ~t ~. $8~5.~ h a lot ofmon~ f~ ~ li~e bit of~. ~ 250 ~ ~ ~ 0f ~ ~d ~ ~n ~ be ~ ~. I 3. ~dno~ ~7 ~ ~ ~ -We ~ ~ ~ m ~ ~I~ on eol~ l~s 2.1 ~d 4~ ~ ~ W 12 x ~ ~ ~io~ ~ ~ ~ m ~ ~,+ ~in~ ~ job ~ 10,7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA D.F.S. COMPANY, INC., Plaintiff CIVIL ACTION - LAW vs. No. 03-1593 CANAM STEEL CORPORATION, Defen~ lant PLAINTIFF'S, )FS COMPANY, INC. ANSWER IN OPPOSITION TO DEFENDAN'I"S CANAM STEEL CORPORATION MOTION FOR SUMMARY JUDGMENT Plaintiff, by a ~d through its counsel, Johnston, Zagurskie & Mummah, files this Answer opposing D~fendant's Motion for Summary Judgment and in support thereof answers Defendant'~ Motion as follows with like numbered paragraphs with additional New Matter. 1. Admitted. 2. Admitted. 3. Admitted n Part and Denied in Part. It is admitted that under the terms of the Contract, Canam was to deliver the materials on January 4, 1999. It is denied that all of the materials were ~lelivered on that date and in fact to the contrary, some materials ordered were never delivered. 4. Admitted n Part and Denied in Part. It is admitted that copies of the billings of lading materials i~ attached as Exhibit "B" and various materials were delivered between January 1. 5. Admitted Canam in a letter d performance and ti 1999 and January 25, 1999. Part and Denied in Part. It is admitted that DFS complained to ~ted February 22, 1999 of alleged non-conformities in Canam's e same is attached to Defendant's Motion identified as Exhibit "C". statute of limitations WHEREFOR Motion for Summar It is denied that this correspondence is inclusive of all issues relative to the Defendant's Breach of Contract and by way of further answer, see New Matter. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. i 10. Denied. It is denied that Plaintiff's Complaint is barred by the applicable and by way of further answer, see New Matter. E, Plaintiff respectfully requests that this Court deny Defendant's Judgment. NEW MATTER A. PLAINTIFF'S COMPLAINT IS 'TIMELY 11. Defendant, by and through its agents, acknowledged the non-conformities as outlined in the Fibruary 22, 1999 correspondence from DFS to Canam Steel. 12. In addition to the non-conformities, as construction progressed, as outlined in Plaintiff's Compla~int, Plaintiff discovered that various materials ordered had not been supplied or were in~ 13. Defends unequivocally Defe~ ,dequately fabricated. nt at all times relevant and material hereto, clearly, distinctly and Jant acknowledged the problems and issues associated with its performance of the 14. As provi Ames Construction Defendant was rec paragraph five of ti at issue contract. :led in Exhibit "C" to Defendant's Motion, correspondence from the general contractor in the at issue construction project, Jested to provide an itemized breakdown of its costs pursuant to at correspondence. 15. Not until April 28, 1999 when Plaintiff, DFS Company, Inc. was orally advised by Ames not to return to the work sight did DFS Company, Inc. become aware that either Defendant failed to supply the information requested by the general contractor or alternatively, supplied information which was deemed implicitly inadequate by the general contractor. 16. At all tim~;s relevant and material hereto, until April 28, 1999, Defendant continued to promis~ and express its commitment that it would "make things right" with the general contract,~r. 17. Defendar~t failed 'to make things right' and Defendant's ability to do so became apparent by, the actions of the General Contractor Ames on April 28, 1999 as stated above herein ~hat Defendant no longer has any ability 'to make things right'. / 18. Defendant orally having clearly, distinctly and unequivocally acknowledged the problems along no breach regarding parties' agreement ¢ ability to make it righ 19. The afore Plaintiff's loss of the general contractor, 20. Prior to 21. Defendar Plaintiff's involveme~ 22. The 'accr Section 2725 is April 23. Plaintiff's vith Defendant's expressed commitment that it would make it right, the problems and issues associated with its performance of the ccurred until April 28, 1999 when it was apparent that defendant's was rendered impossible. said actions outlined in the previous paragraph resulted in the contract when on April 28, 1999 Plaintiff was advised by the .roes, not to return to the project. ~ril 28, 1999, Plaintiff was unawre of Defendant's breach. I's breach occurred when the general contractor terminated in the project. al date' of the cause of the action for purposes of applying 28, 1999. action being filed on or before April 28, 2004 is timely. WHEREFORE, Plaintiff respectfully requests this Court enter an Order denying Defendant's Motion for Summary Judgment. B. ALTERNATIVELY-APPLICATION OF 13 Pa. C.S.A. Section 2725(c) 24. Defendant in this action on or about April 7, 2000, filed a civil action in the Court of Common Pleas in Cumberland County bearing civil action number 00-2148 alleging certain sum: due Defendant relative to the same contract at issue in the action before the Court. 25. Plaintiff, )efendant in Civil Action # 00-2148 civil action, timely filed an Answer with New M tter. 26. The Ansv Cer with New Matter, for all practical purposes, contained and is a counterclaim, excepl for the lack of the title specifically saying counter claim. 27. 13 Pa. C. $.A. Section 2725 (c) states: "New A~ction after termination of another-Where an action commenced within the time limite~J by sub-section (a) is so terminated as to leave available a remedy by another a~tion for the same breach such other action may be commenced after the expiration o~ the time limited and six months after the termination of the first action unless the ten nination resulted from voluntary discontinuance or from dismissal for failure or neglect :o prosecute." 28. Alternativ ,~ly, in the event that this Court is inclined to adopt any earlier date prior to April 7, 2003 ~s the applicable date for applying statute of limitations of Section / 2725 (c) renders the ~action timely filed. / 29. In accord; herein as a result of' termination of the su available remedy by ~nce with 2725(c), Defendant in Civil Action 00-2148 and Plaintiff he action already commenced, would have six months after the by Defendant to bring a cause of action which would leave an ~nother action for the same breach which is a fact to have transpired. 30. As a result of the pendency of Civil Action 00-2148, no prejudice may be asserted by Defendant herein. 31. Since Plaintiff herein would have six months following the termination of Civil Action 00-2148 and Civil Action 00-2148 has not been terminated, Plaintiff's complaint is timely filed. WHEREFOR Court deny Defenda Date: --, for the reasons stated herein, it is respectfully requested that this ~t's Motion for Summary Judgment. Respectfully submitted, JOHNSTON, ZAGURSKIE & MUMMAH 117 Main St., P.O. Box 0 Mifflin, PA 17058 (717) 436-8044 Attorney I.D. No. 62494 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA D.F.S. COMPANY, lNG., Plaintiff VS. CIVIL ACTION - LAW No. 03-1593 CANAM STEEL CORPORATION, Defend~ nt _( ERTIFICAT E OF_ S_EERVICE_ AND NOW, _/. ~,'~-~--- _,~_~_, 2003, I, Donald K. Zagurskie, Esquire, attorney for Canam ;teel Corporation, in the above-captioned matter, hereby certify I served a true and cc rrect copy of the Answer In Opposition To Defendant's Canam Steel Corporation M ,tion For Summary Judgment by depositing the same in the United States mail, at Miffli Pennsylvania, addressed to the following person at the following address: LAURA A. B PIPER RUD 3400 TWO I 18TM AND A PHILADELF ,ANCKE, ESQUIRE ~llCK, LLP .OGAN SQUARE ~,CH STREETS HIA, PA 19103 JOHNSTON, ZAGURSKIE & MUMMAH BY~GURSKIE 117 Main Street P.O. Box O Mifflin, PA 17058 rr~ ~ ~ 21: