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HomeMy WebLinkAbout07-5073 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ARNOLD LOGISTICS, LLC Civil Action -Law Plaintiff, v. No. p~ - 5b'13 Civi l ~Ot'M PENGATE HANDLING SYSTEMS, INC. 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 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFORD TO HIRE A LAYWER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone: 800-990-9108 McNEES, WALLACE & NURICK u~ onathan H. Rudd, Esq. Attorney I.D. No. 56880 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 717-237-5405 (phone) 717-260-1737 (fax) iruddCc~mwn.com Attorneys for Plaintiff Arnold Logistics, LLC • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ARNOLD LOGISTICS, LLC Civil Action -Law Plaintiff, v. PENGATE HANDLING SYSTEMS, INC. Defendant. COMPLAINT No. d 7- 3b~3 Ccu~~:,Q ~~ Plaintiff, Arnold Logistics, LLC, by and through its attorneys, McNees Wallace & Nurick LLC, hereby files this Complaint against Defendant Pengate Handling Systems, Inc. In support of its Complaint, Plaintiff alleges the following: PARTIES 1. Plaintiff, Arnold Logistics, LLC ("Arnold") is a Pennsylvania limited liability company with a principal place of business at 4410 Industrial Park Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendant Pengate Handling Systems, Inc. ("Pengate"), is a Pennsylvania corporation located at 3 Interchange Place, York, York County Pennsylvania 17402. FACTUAL BACKGROUND 3. Arnold is a third party logistics provider that warehouses products for other companies as part of its business services. 4. Pengate is in the business of designing, distributing and installing racking and other storage systems used by companies such as Arnold in their warehouse operations. 5. On or about December 31, 2003, Arnold issued a Request for Quotation for Push Back and Select Racking ("RFQ"). A copy of the RFQ is attached hereto as Exhibit A. 6. Arnold provided the RFQ to Pengate. 7. The RFQ included in part 5 Deep -Push Back Racking ("Push Back Racking") for use at warehouses operated by Arnold in Mechanicsburg, Pennsylvania and Joliet, Illinois. 8. Amold's specifications for the Push Back Racking provided fora 2-1-2 configuration for storing the pallets. This pallet position design involved storing 2 pallets on the floor under the rack structure, 1 pallet on the middle level of the rack structure, and 2 pallets that would be double stacked on the top level of the rack structure. 9. The RFQ provided that the average pallet weight was 1,500 - 2,000 pounds. 10. The RFQ provided that the Push Back Racking was to be designed with a 107" spacing from the floor to the bottom of the 18t beam, and 62" from the top of the 18t beam to the bottom of the 2"d beam. 11. On or about February 10, 2004, Pengate responded to the RFQ ("RFQ Response"). A copy of Pengate's RFQ Response is attached hereto as Exhibit B. 12. In its RFQ Response, Pengate proposed to supply the Push Back Racking as specified by Arnold, including the requirement that the racking system be s capable of handling double stacked pallets at the top level. 13. Arnold accepted Pengate's RFQ Response and issued Pengate Purchase Order 31382 for the Push Back Racking at the Joliet, Illinois location and Purchase 2 Order 31383 for the Push Back Racking at the Mechanicsburg, Pennsylvania location. A copy of Purchase Orders 31382 and 31383 are attached hereto as Exhibits C and D. 14. Pengate proceeded to supply and install the Push Back Racking at both the Joliet, Illinois and Mechanicsburg, Pennsylvania locations during the summer of 2004. 15. After the Push Back Racking was installed, it was discovered that Pengate had made an error in connection with its design of the Push Back Racking. 16. Because the specifications required that the Push Back Racking be capable of handling a double stacked pallet at the top level location, the beam and supporting structure needed to have double the capacity of the specified pallet weight of 1,500 - 2,000 pounds. 17. Pengate failed to design the Push Back Racking to account for the double stacked pallets on the top level, and instead designed the beam and supporting structure for the top level with a 1,500 - 2,000 pound weight capacity. 18. As a result of Pengate's design error, the top level of the Push Back Racking was unable to withstand the weight of two 1,500 - 2,000 pound pallets stacked on top of each other. 19. The Push Back Racking as installed could not be fully utilized as a result of structural deficiencies. 20. The Push Back Racking as installed could not be fully utilized without posing a significant safety hazard to Amold's employees. 21. On September 29, 2004, Amold rejected the Push Back Racking and demanded that Pengate cure and/or correct the deficiencies in the Push Back Racking. 3 22. Pengate has never cured and/or corrected the deficiencies in the Push Back Racking. 23. Arnold has never been able to fully utilize the Push Back Racking as it intended and expected when it specified that the top level be capable of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other. COUNT I BREACH OF CONTRACT 24. Arnold incorporates herein by reference paragraph 1 - 23 above as if set forth herein at length. 25. The RFQ, Pengate's RFQ Response, and the Purchase Orders make up the written contracts between the parties ("Contract"). 26. A material term of the Contract is that the Push Back Racking be capable of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level. 27. Arnold performed all requirements of it under the teens of the Contract. 28. Pengate breached the Contract by failing to supply Push Back Racking capable of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level. 29. Arnold is entitled to receive Push Back Racking that meets the requirements of the Contract, including the capability of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level. 30. The existing Push Back I~aaking will need to be replaced with Push Back Racking that is designed and constructed with the capability of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level. 4 31. In order to replace the existing Push Back Racking with Push Back Racking that meets and conforms to the requirements of the Contract, all product currently on and below the Push Back Racking will need to moved and then returned at an expense of in excess of $42,000. 32. In order to replace the existing Push Back Racking with Push Back Racking that meets and conforms to the requirements of the Contract, the existing Push Back Racking will need to be disassembled and removed at an expense of in excess of $117,000. 33. The cost to purchase replacement Push Back Racking that meets and conforms to the requirements of the Contract is in excess of $1,844,000. 34. Amold's direct damages associated with Pengate's breach of Contract in supplying and installing Push Back Racking that was not capable of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level are in excess of $2,003,000. 35. Arnold has and will continue to suffer additional incidental and consequential damages as a result of Pengate's breach of Contract. 36. Amold's damages were proximately caused by Pengate's breach of Contract. 37. Amold's damages were reasonably foreseeable by Pengate. WHEREFORE, Plaintiff Arnold Logistics, LLC demands judgment in its favor and against Defendant Pengate Handling Systems, Inc. for an amount in excess of $2,003,000, together with all additional incidental and consequential damages caused by Pengate's breach of Contract, interest and costs. 5 'COUNT II BREACH OF WARRANTIES 38. Arnold incorporates herein by reference paragraph 1 -37 above as if set forth herein at length. 39. Pengate expressly warranted that the Push Back Racking would meet and conform to the requirements of the Contract. 40. A material requirement of the Contract is that the Push Back Racking be capable of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level. 41. Pengate impliedly warranted that the Push Back Racking would be merchantable. 42. Pengate impliedly warranted that the Push Back Racking would be flt for its particular purpose. 43. The Push Back Racking was not merchantable in that it would not pass without objection in the trade under the Contract description. 44. The Push Back Racking was not merchantable in that it was not fit for the ordinary purposes for which it was intended to be used. 45. The Push Back Racking was not merchantable in that it was not adequately labeled to reflect that it was only capable of handling the weight of one 1,500 - 2,000 pound pallet at the top level and was not capable of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level. 46. The Push Back Racking was not fit for its intended purpose in that it was not capable of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level. 6 47. Pengate breached its express and implied warranties to Arnold since the Push Back Racking was not capable of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level. 48. Arnold is entitled to receive Push Back Racking that meets the express warranties set forth in the Contract and aH implied warranties. 49. The existing Push Back Racking will need to be replaced with Push Back Racking that is designed and constructed with the capability of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level. 50. In order to replace the existing Push Back Racking with Push Back Racking that meets the express warranties set forth in the Contract and all implied warranties, all product currently on and below the Push Back Racking will need to moved and then returned at an expense of in excess of $42,000. 51. In order to replace the existing Push Back Racking with Push Back Racking that meets the express warranties set forth in the Contract and all implied ~. wanranties, the existing Push Back Racking will need to be disassembled and removed at an expense of in excess of $117,000. 52. The cost to purchase replacement Push Back Racking that meets the express warranties set forth in the Contract and all implied warranties is in excess of $1,844,000. 53. Amold's direct damages associated with Pengate's breach of warranties in supplying and installing Push Back Racking that was not capable of handling the weight of two 1,500 - 2,000 pound pallets stacked on top of each other at the top level are in excess of $2,003,000. 7 54. Amold has and will continue to suffer additional incidental and consequential damages as a result of Pengate's breach of warranties. 55. Amold's damages were proximately caused by Pengate's breach of warranties. 56. Amold's damages were reasonably foreseeable by Pengate. WHEREFORE, Plaintiff Amold Logistics, LLC demands judgment in its favor and against Defendant Pengate Handling Systems, Inc. for an amount in excess of $2,003,000, together with all additional incidental and consequential damages caused by Pengate's breach of warranties, interest and costs. McNEES, WALLACE & NURICK YQ.~/ ~lonathan H. Rudd, Esq. Attorney I.D. No. 56880 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 717-237-5405 (phone) 717-260-1737 (fax) ~rudd _mwn.com Attorneys for Plaintiff Arnold Logistics, LLC Dated: August 23, 2007 8 ~XNIBf~ ~ ~ ` <,11~,w~~ ... 1' y'~~ ~,.% i± Request for Quotation (RFQ) For Push Back & Select Racking Issue Date of RFQ: 12/31 /2003 Response Due Date: 01/14/2004 `; ~ ~ ~ ~'"';; L~1 f ~ ~ ~~ Introduction Arnold Logistics is a premier multi-regional third party logistics provider. We operate more than Smillion square feet of warehouse space employing over 1,000 associates. We provide total business solutions including fulfillment and distribution, contract packaging, print, direct mail, inventory control and customer service. As part of our ongoing business needs, Arnold Logistics is seeking quotations for Push Back & Select racking. The racking will be required to be installed in 2 different locations. Item Pa. Pallet Ill. Pallet Totai Positions Positions 1 Dee -Select 1800 1.80 3480 5 Deep -Push 9300 8900. 18200 Back Quotation Response Guidelines In order to be considered, the following pricing matrix is to be completed. Pennsylvania Illinois Combined Item Price Per Plt Position Extended Cost Price Per Plt Position Extended Cost Total Cost 1 Dee 5 Dee Option A Tax S&H Labor to Install TOTAL * Labor in the Midwest is to be union labor 2 ` ...;~Tl. ~...~... r _ _ _. _ _ . ___._......._ ~~/ ' ~ ,, _~ Information as it aaplies to the Product - Avg plt wght 1500 - 2000 Ibs - Avg p(t dimension is 40" x 48" x 40" - 1 SKU per pallet Rack Design will be as follows for Push Back (2 Wide) - 2 Floor level (No Beam) - Spacing from floor to bottom 1St beam • 107" - 1 Middle level (1St Beam) - Spacing from top 1St beam to bottom 2"d beam • 62" - 2 Top Level (2"a Beam) Rack Design will be as follows for Select (2 Wide) - 1 Floor level (No Beam) - Spacing from Floor to bottom lst beam • 62" - 1 Middle Level (1St Beam) - Spacing from top 1St beam to bottom 2"d beam • 62" - 1 Top Level (2"d Beam) Option A • I would like a price option to have sleds/rollers on the 1St level of the Push Back Racking as we will be picking from this level potentially Select Racking Specifications • 16' Uprights • 96" Beams • Min 4500 LBS beam capacity 3 '~ ~ :h-. ~.~,..~ ~ ~ ~, z ~1'"' % ~ • Product Specification Information • Please provide the information on the following items as it applies to Push Back Racking you are recommending: - Height of Uprights to be used - Capacity of each sled - Cart stack height above rail - Capacity per wheel - Type of material (i.e. structural steel) - Rail pitch - Do you have Lift Out Protectors - Do you have Strip off Stop - Do you have End Stop - Any compatibility with other manufacturers • Please complete the following time-line information based on the following: - Pa. facility to be operational on April 23,2003 - Ill. Facility to be operational on Apri123,2003 • Pennsylvania - Lead Time for Material - Start Date - Installation Time - Date Work Completed • Illinois - Lead Time for Material - Start Date - Installation Time - Date Work Completed 4 ~`',~,~ i ~~ I have included Cad layouts for each of the facilities. Please contact me if you have any questions. Authori , and Signature Form Vendor candidate has full power and authority to enter into an agreement based upon the RFQ and any Quotation thereto; and the person signing this Quotation on behalf of vendor candidate has been properly authorized and empowered to enter into the Quotation. Vendor candidate further acknowledges that it has read the RFQ, understands it, and agrees to be bound by it. Proposing Entity/Company Name Print/Type Name Signature Date (*) Please direct any questions you may have to: Jerry Cook 717-73Q-5212 ext 5344 iccok(u?arnoldlo~istics.coin ** Arnold Logistics, LLC reserves the right to award business regardless of cost at their discretion. The attached is not to be considered an order. ** The pricing provided will remain valid for 90 days from date listed above. 5 ~xH~r~~z i ~n Request for Quotation (RFQ) For Push Back FINAL Issue Date of RFQ: 12/31 /2003 Response D-ue Date: Z/14 /2004 "~~' '~ 0 iM+. Introduction Arnold Logistics is a premier multi-regional third party logistics provider. We operate more than Smillion square feet of warehouse space employing over 1,000 associates. We provide total business solutions including fulfillment and distribution, contract packaging, print, direct mail, inventory control and customer service. As part of our ongoing business needs, Arnold Logistics is seeking quotations for Push Back & Select racking. The racking will be required to be installed in 2 different locations. Item Pa. Pallet Ill. Pallet Total Positions Positions 1 Dee -Select 1800 1680 3480 5 Deep -Push 9300 10,400 19700 Back Pennsylvania (Non Union) Illinois (Non Union) Item Price Per Plt Position Extended Cost Price Per Plt Position Extended Cost Total Cost 1 Dee S 21.17 $ 38,109 $ 21.77 $ 35,565 $ 73,674 5 Dee $ 35.73 $ 332,313 $ 35.41 $ 368 25 $ 700,638 Tax $ 22,225 $ 24 33 $ 46 938 S&H $ 30,848 $ 34,500 $ 65,348 Labor to Install $ 74,900 $100,000 $174,900 TOTAL $ 498,395 $562,623 1,061,018 The total weight for the Interlake portion is 505,000#. Estimated In'I~Piake Surcharge at $ 60 a ton is $15,150. This will be billed directly to Arnold Logistics from Interlake at cost. The total weight for the Advance Push Back portion is 750,491#. There will be no surcharge from Advance Storage Products a~P Interlake and Advance are RMI 2002 certified. These configurations were designed by factory engineers and are certified to be the most structurally sound cost effective solutions. The above quote includes additional beams and higher uprights to support your request of floor plus three levels of Selective Rack. Add $ 25.00 per upright for weld on bull nose protector. a LD ~~ LOGISTICS Item Coors Camp Hill Pa. Pallet Positions 5 Deep -Push 1,800 Back 36 Ba s Quotation Response Guidelines In order to be considered, the following pricing matrix is to be completed. 2-2-1 Configuration 2-1-2 Configuration Item Price Per Plt Position Extended Cost Price Per Plt Position Extended Cost 5 Dee $48.13 $ 86,634 $ 45.90 $ 82,630 Tax $ 5,198 $ 4 957 S&H $ 6,618 $ 6,618 Labor to Install $18,139 $17,417 TOTAL $116,589 $111,622 ~~ These prices assume this is purchased as part of package with Jerry Cook project. If bought as a stand-alone unit add $ 2,000 for 2-1-2 Configuration or $4,000 for 2-2-1 configuration. o `~ ~~~Y I Total Price fora ree combined and 2-2-1 configuration for Coors ........ .........$1,177,607 ~ Pengate wil s with Arnold Logistics any surcharge above $ 60.00 a ton. Information as it applies to the Product - Avg plt wght 1500 - 2000 1bs - Avg plt dimension is 40" z 48" x 40" - 1 SKU per pallet Rack Design will be as follows for Push Back (2 Wide} 3 __ - 2 Floor level (No Beam) - Spacing from floor to bottom 1St beam • 107" - 1 Middle level (1St Beam) - Spacing from top 1St beam to bottom 2°d beam • 62~ - 2 Top Level (2°d Beam) Rack Design will be as follows for Select (2 Wide) - 1 Floor level (No Beam) - Spacing from Floor to bottom 1St beam • 62" - 1 Middle Level (1St Beam) - Spacing from top 1St beam to bottom 2°d beam • 62» - 1 Top Level (2°d Beam) Option A • I would like a price option to have sleds/rollers on the 1St level of the Push Back Racking as we will be picking from this level potentially Select Racking Specifications • 16' Uprights • 96" Beams • Min 4500 LBS beam capacity • Product Specification Information ~ ~ ~ ~' / ~ .- . ~' ~ - Capacity of each sled 3,000# - Cart stack height above rai141/2" - Capacity per wheel 2,000# - Type of material (i.e. structural steel) Interlake Rolled Form Uprights, Interlake Structural Beams, Advance Structural Carts and 5 Deep Push Back Rack System - Rail pitch 5/16" per Foot - Do you have Lift Out Protectors Advance Carts are fully captured within the nested pushback system with no need for lift out protectors - Do you have Strip off Stop Yes; there are serrated strips on every cart. - Do you have End Stop Yes and also rubber bumper stops for all carts - Any compatibility with other manufacturers Yes, Advance is compatible with all rack manufacturers. • Please complete the following time-line information based on the following: - Pa. facility to be operational on Apri123,2003 - Ill. Facility to be operational on Apri123,2003 • Pennsylvania - Lead Time for Material See Project Management Schedule - Start Date - Installation Time Date Work Completed Installation to be performed by John Moore and RUJO from Baltimore MD. • Illinois - Lead Time for Material See Project Management Schedule - Start Date - Installation Time Date Work Completed - Installation to be performed by non union company Trans Continental Intallation Co. from Chicago IL. 5 ,.r.,...,.1~~,.. ~ I ~. - Capacity of each sled 3,000# - Cart stack height above rai14 '/2" - Capacity per wheel 2,000# - Type of material (i.e. structural steel) Interlake Rolled Form Uprights, Interlake Structural Beams, Advance Structural Carts and 5 Deep Push Back Rack System - Rail pitch 5/16" per Foot - Do you have Lift Out Protectors Advance Carts are fully captured within the nested pushback system with no need for lift out protectors - Do you have Strip off Stop Yes; there are serrated strips on every cart. - Do you have End Stop Yes and also rubber bumper stops for all carts - Any compatibility with other manufacturers Yes, Advance is compatible with all rack manufacturers. • Please complete the following time-line information based on the following: - Pa. facility to be operational on April 23,2003 - Ill. Facility to be operational on April 23,2003 • Pennsylvania - Lead Time for Material See Project Management Schedule - Start Date - Installation Time Date Work Completed Installation to be performed by John Moore and RUJO from Baltimore MD. • Illinois - Lead Time for Material See Project Management Schedule - Start Date - Installation Time Date Work Completed - Installation to be performed by non union company Trans Continental Intallation Co. from Chicago IL. 5 .~..,a~.l.~, ! ~_- '' Project Management for both facilities to be provided by Pengate Handling Systems. I have included Cad layouts for each of the facilities. Please contact me if you have any questions. Authority and Signature Form Vendor candidate has full power and authority to enter into an agreement based upon the RFQ and any Quotation thereto; and the person signing this Quotation on behalf of vendor candidate has been properly authorized and empowered to enter into the Quotation. Vendor candidate further acknowledges that it has read the RFQ, understands it, and agrees to be bound by it. Pengate Handling Sytems Inc. Proposing Entity/Company Name Dennis P. Frizzi Jr. Print/Type Name Please direct any questions you may have to: Jerry Cook 717-730-5212 ext 5344 iccok~~.arnoldlo~istics.com ** Arnold Logistics, LLC reserves the right to award business regazdless of cost at their discretion. The attached is not to be considered an order. * * The pricing provided will remain valid for 90 days from date listed above. 6 Signature Date (*) ALLSTATE'b LEGAL 800-222-0510 ED11 REGYCS ED ~XNI~ iT Purchase Order ~if~ BILLING ADDRESS: 4410 Industrial Park Road Camp Hill, PA 17011 (717)731-4374 - Purchase orders required for atl purchases. The Purchase Order Number assigned to this order must be on all invoices regarding this order. Send all invoices to purchasing location. Ship To Arnold Logistics PO No. 31382 251 Laraway Road Joliet, Il. 60432 DMSION 9 Requested By: Jerry Cook DATE 02/12/04 Vendor Pengate Handling Systems, Inc. 3 Interchange Place York, Pa. 17402-9617 TY DESCRIPTION PRICE EACH AMOUNT 1 Lot -1 Deep Select Racking / 1680 spots 35,565 35,565 1 Lot - 5 Deep Push Back / 10,400 spots 368,325 368,325 T~ 24,233 S&H 34,500 Labor to install 100,000 Total $562,623 There is a potentital surcharge estimated at $60 ton based on 505,000 lbs. If surcharge goes above $60 ton, this will be split with Pengate. This would apply to Mech & Joliet 15,150 Total $ 577,773 Reason for Purchase This is for Cadbury Operation in Joliet. Please charge to 03-009-008, Bldg 24, Div 9, Cost Center 229. Please forward Invoice to Jerry Cook for approval. Terms: Our P.O. number must appear on all Doug Enek invoices, packing lists, bills of lading, etc. Any changes in the specifications of this order, must be authorized. AUTHORIZED Blf f:\forms~ rgsE.doe ~Xtt I13 f~ J~ ~ ~ Purchase Order ~~~~ BILLING ADDRESS: 4410 Industrial Park Road Camp Hill, PA 17011 (717) 731-4374 - Purchase orders required for all purchases. The Purchase Order Number assigned to this order must be on all invoices regarding this order. Send all invoices to purchasing location. Ship To Arnold Logistics PO No. ~ ~ ~ O~ 341 Heinz Street b Mechanicsburg, Pa. 17055 DMSION 9 Requested By: Jerry Cook DATE 02/11/04 Vendor Pengate Handling Systems, Inc. 3 Interchange Place York, Pa. 17402-9617 TY DESCRIPTION PRICE EACH AMOUNT 1 Lot -1 Deep Select Racking / 1800 spots 38,109 38,109 1 Lot - 5 Deep Push Back / 9300 spots 332,313 332,313 Tax 22,225 S&H 30,848 Labor to Install 74,900 Total 498,395 Reason for Purchase This is for Cadbury Operation in Mech. Please charge to 03-009-009, Bldg 9, Div 9, Cost Center 029. Please forward invoice to Jerry Cook for approval. Terms: Our P.O. number must appear on all invoices, packing lists, bills of lading, etc. Any Chan=es in the specifications of this order, must be authorized. AUTHORIZED BY f:\forms\po_rgst.doc t ~ ~x~i~~T E ALL~STATE LEGAL"' 800-222-0510 ~s-,.~' 4410 Industrial Park Road Camp Hill, PA 17011 717-73 f-4374 g00-967-3914 Fax: 717-761-6688 September 29, 2004 Pengate Handling Systems Attn: Mr. Joseph Dean 3 Interchange Place York, PA 17402 Re; Arnold Logistics, LLC - Pengate Handling Systems, Inc. Dear Mr. Dean: em which Arnold Logistics purchased from Pengate As you are aware, the racking sY~ sties facilities in Mechanicsburg, PennsYlvama and and which Pcngatc installed in Arnold Logi =_ 'which is do not meet the specifications set forth in the request for quotation (1~Q' s tern Joliet, Illtno ate. As presently installed the ha~zagrd o was the basis for the award of the contract to Peng cannot be fully utilized due to structural deficieneiessamd poses a significant sa ety after with you and impressed upon you Arnold Logistics employees. We have discussed ttu ave the situation remedied both from the standpoint of~ a li p toyperformcunderdour the need to h alleviate the significant adverse impact the situation is having on o warehousing contract. e to the deficiencies in the installed systems, we have llct ostion costs oArnold in Du Mechanicsburg and 2,192 Pallet positions in Joliet. Each lost p p 7.92 er month in lost revenue under our contract. T contracted schedule sets forth Logistics $ P the magnitude of the projected lost revenue over the term of our n our view there are three possible remedies to the situation which Pengate created: I to conform to RFQ specifications. This may A. Retrofit or replace existing racking entail changing stackabikity from 2-1-2 to 2-2-iv ~ addifional reach heigh~gher top rail, Pengate would pay to retrofit forklifts ~ i During the retrofit period, Pengate would compeon ~~ 9'` P~ 1 o~Pallet position monthly basis for lost pallet position at the ra per month. g, Provide additional racking at each location to make up for lost pallet positions, and if sufficient additional racking cannot be placed at the existing locations, at suitable additional bulk storage locations. The ad ould aay allk osts assn sated «~ithout charge to ilk storage Iocations fogy the term of the contract. with the additional i3;751.1 .. r .. ` ~ without chazge to Arnold Logistics and Pengate would pay all costs associated ~~~ith the additional bulk storage locations for the term of the contract. Additionally; until the additional racking is fully installed and operational, Pengatc would compensate Arnold Logistics on a monthly basis for lost pallet position at the rate of $7.92 per lost pallet position pcr month. C. Compensate Arnold Logistics the lost revenue resulting from the lost pallet positions, any. penalties payable to the custdmcr for contract violations, and any rent for outside storage of product. The attached schedule indicates the total lost revenue ovcr the term of the contract is $1,925,551.40. At present value, we would expect an immediate payment of $1,710,934.08. As we have repeatedly advised you, we bid our contract with Cadbury on the assumption that the racking would be installed and perform in accordance with the specifications contained in the RFQ. What we have ended up with is a racking. system that is well short of meeting those specifications, which if utilized as intended would crcatc serious safety'issues for our employees and which raises the possibility that we will be unable to fully meet our contractual obligations to Cadbury. We need to heaz from you before 3:00 pm on Wednesday, October 6, 2004 concerning which of the above options you intend to pursue and your timetable for remedying the situation. Regards, ~. S Doug ck Presi ent CEO Arnold Logistics Attachment .. e ~ .- .. j ~. ~. m Nm 1.1. N O J Q .~ V 0.' Y V m t N 7 a 0 c _o .-~ a~ c -'~~-~.. ~'~~ .. y, ~f VERIFICATION I hereby certify that I, Thomas J. Collingsworth, am the Director of Risk Management of Plaintiff Arnold Logistics, LLC and I have the authority to verify this Complaint on its behalf. I certify that the facts set forth in this Complaint are true and correct to the best of my knowledge, information, and belief. In making this verification, I am relying on my attorneys' advise. The wording of this document is that of my attorneys and not my own. I understand that false statements herein are made subject to the penalties of 18 PA.C.S ; 4904, relating to unsworn falsification to authorities. Thomas J. oiling orth Dated: August 20, 2007 ~ ~ ("~ c- ~v ~ o ...~ I - G' i l~l -r...! / ~ ~\ w[ _ ~ \ + '~F _ ~ ~ +v~r _ 1 - i ~ { Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Rhoads &Sinon LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant ARNOLD LOGISTICS, LLC Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. PENGATE HANDLING SYSTEMS, INC Defendant CIVIL ACTION -LAW N0.07-5073 ANSWER & NEW MATTER Defendant, Pengate Handling Systems, Inc., by and through counsel, Rhoads &Sinon LLP, files the within Answer and New Matter to the Complaint filed by Arnold Logistics, LLC as follows: PARTIES 1. Admitted. 2. Admitted. FACTUAL BACKGROUND 3. Defendant is without sufficient information and belief to form a responsive pleading to the allegations contained in Paragraph 3 and the same are therefore denied. 4. It is admitted that, among other things, Pengate designs, distributes, and installs racking systems for its customers. 5. It is admitted that on or about December 31, 2003, Arnold issued an RFQ for Push Back and Select Racking. The remaining allegations relate to a written document that speaks for itself. 665666.1 6. Admitted. 7. It is admitted only that on or about December 31, 2003, Arnold issued an RFQ for Push Back and Select Racking. The remaining allegations relate to a written document that speaks for itself. 8. It is admitted that on or about December 31, 2003, Arnold issued an RFQ for Push Back and Select Racking. The remaining allegations relate to a written document that speaks for itself. 9. It is admitted that on or about December 31, 2003, Arnold issued an RFQ for Push Back and Select Racking. The remaining allegations relate to a written document that speaks for itself. 10. It is admitted that on or about December 31, 2003, Arnold issued an RFQ for Push Back and Select Racking. The remaining allegations relate to a written document that speaks for itself. 11. It is admitted that, on or about February 10, 2004, Pengate responded to the RFQ. The remaining allegations relate to a written document that speaks for itself. 12. It is admitted that, on or about February 10, 2004, Pengate responded to the RFQ. The remaining allegations relate to a written document that speaks for itself. 13. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 13, and the same is therefore denied. It is admitted that various Purchase Orders are attached to the Complaint and are written documents that speak for themselves. 14. It is admitted that, in 2004, Pengate fulfilled its obligations with respect to the racking systems through installation at Arnold facilities in Pennsylvania and Illinois. -2- 15. Admitted. 16. Admitted. 17. Admitted. 18. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 18, and the same is therefore denied. 19. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 19, and the same is therefore denied. 20. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 20, and the same is therefore denied. 21. Denied. It is denied that on September 29, 2004, Arnold rejected the Push Back Racking and demanded that Pengate cure and/or correct the deficiencies in the Push Back Racking. To the contrary, Arnold sent a letter dated September 29, 2004, a copy of which is attached to the Complaint but not referenced therein, wherein Arnold proposed three potential solutions to the parties' dispute. The document is a written document that speaks for itself. 22. Denied. It is specifically denied that Pengate failed to cure or correct any deficiencies in the Push Back Racking. To the contrary, after substantial discussion between the parties, Pengate selected and performed one of the three "fix" options proposed by Arnold in its September 29, 2004 letter, a copy of which is attached to the Complaint. Arnold expressly accepted the remedy that it had proposed and agreed to the "fix", which occurred in early 2005. 23. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 23, and the same is therefore denied. -3- COUNT I -BREACH OF CONTRACT 24. Pengate incorporates herein by reference the response to the above-paragraphs as though set forth fully herein. 25. The allegation contained in Paragraph 25 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. 26. The allegation contained in Paragraph 26 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. The Contract, as defined in the Complaint, is a written document that speaks for itself, or a series of written documents which speak for themselves. 27. The allegation contained in Paragraph 27 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. 28. The allegation contained in Paragraph 28 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. 29. Denied. It is denied that Arnold is entitled to any amount from Pengate. Arnold and Pengate agreed upon a remedy to resolve the matter, which was fully completed in 2005. 30. Denied. It is denied that Arnold is entitled to any amount from Pengate. Arnold and Pengate agreed upon a remedy to resolve the matter, which was fully completed in 2005. 31. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 31, and the same is therefore denied. It is specifically denied -4- that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 32. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 32, and the same is therefore denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking, as such term is defined in the Complaint. 33. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 33, and the same is therefore denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 34. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 34, and the same is therefore denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 35. Defendant is without sufficient information to form a responsive pleading to the allegation contained in Paragraph 35, and the same is therefore denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 36. The allegation contained in Paragraph 36 is a conclusion of law to which no responsive pleading is required, to the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. -5- 37. The allegation contained in Paragraph 37 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. WHEREFORE, Defendant Pengate Handling Systems, Inc. demands judgment in its favor and against Arnold Logistics together with all incidental costs and other fees. COUNT II -BREACH OF WARRANTIES 38. Pengate incorporates herein by reference the response to the above-paragraphs as though set forth fully herein. 39. The allegation contained in Paragraph 39 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. 40. The allegation contained in Paragraph 40 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. 41. The allegation contained in Paragraph 41 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Pengate made any warranty, express or implied, and it is expressly denied that the racking system is not "merchantable." 42. The allegation contained in Paragraph 42 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Pengate made any warranty, express or implied, and it is expressly denied that the racking system is not "merchantable." -6- 43. The allegation contained in Paragraph 43 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Pengate made any warranty, express or implied, and it is expressly denied that the racking system is not "merchantable." 44. The allegation contained in Paragraph 44 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Pengate made any warranty, express or implied, and it is expressly denied that the racking system is not "merchantable." 45. The allegation contained in Paragraph 45 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Pengate made any warranty, express or implied, and it is expressly denied that the racking system is not "merchantable." 46. The allegation contained in Paragraph 46 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Pengate made any warranty, express or implied, and it is expressly denied that the racking system is not "merchantable." 47. The allegation contained in Paragraph 47 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 48. The allegation contained in Paragraph 48 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pileading is required, the same is -7- denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 49. The allegation contained in Paragraph 49 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 50. The allegation contained in Paragraph 50 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 51. The allegation contained in Paragraph 51 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 52. The allegation contained in Paragraph 52 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 53. The allegation contained in Paragraph 53 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. -8- 54. The allegation contained in Paragraph 54 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 55. The allegation contained in Paragraph 55 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. 56. The allegation contained in Paragraph 56 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the same is denied. It is specifically denied that Arnold is entitled to any amount from Pengate, as Pengate has already cured any deficiencies associated with the Push Back Racking. WHEREFORE, Defendant Pengate Handling Systems, Inc. demands judgment in its favor and against Arnold Logistics together with all incidental costs and other fees. NEW MATTER 1. Plaintiff s Complaint fails to state a cause of action upon which relief can be granted. 2. Plaintiff s claims are barred, in whole or in part, by the applicable statute of limitations. 3. Plaintiff s claims are barred, in whole or in part, by the doctrine of accord and satisfaction. 4. Plaintiff's claims are barred, in whole or in part, by the doctrines of laches, waiver, and estoppel. -9- 5. Plaintiffs claims are barred, in whole or in part, as a result of a complete release. 6. Plaintiffs claims are barred, in whole or in part, as a result of Plaintiff s spoliation of evidence. 7. Plaintiff s claims are barred, in whole or in part, by the doctrine of consent. 8. Plaintiff s claims are barred, in whole or in part, by the doctrine of justification. 9. Plaintiff s claims are moot. 10. Plaintiff has not been damaged, nor will the Plaintiff be damaged, by any actions of Defendant. 11. To the extent that Defendant breached its contract with Plaintiff, Defendant cured any such breach. 12. To the extent that Plaintiff has suffered damages, which is expressly denied, such damages were caused, in whole or in part, by the acts of Plaintiff. 13. To the extent that Plaintiff has suffered damages, which is expressly denied, such damages were caused, in whole or in part, by the acts of third parties, including but not limited to Plaintiff s agent or agents, over whom Defendant had no control. 14. To the extent that Plaintiff has suffered damages, which is expressly denied, Plaintiff s claims are barred, in whole or in part, by a failure to mitigate. 15. Defendant expressly reserves the right to raise additional defenses that become known after discovery. -10- WHEREFORE, Defendant Pengate Handling Systems, Inc. demands judgment in its favor and against Arnold Logistics together with all incidental costs and other fees. Respectfully submitted, Date: October 10, 2007 BROADS & SINON By: G--- ~6bert J. ribeEk, Esquire Attorney .D. No. 74486 One So th Market Square Hamsb g, PA 17108-1146 (717) 233-5731 -11- Attorneys for Defendant VERIFICATION C. Joseph Dean, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that he is the President of Pengate Handling Systems, Inc., that he makes this verification by its authority and that the facts set forth in the Answer and New Matter are true and correct to the best of his knowledge, information and belief. r Da~ C. J seph D ,President ~__._ CERTIFICATE OF SERVICE I hereby certify that on this 10`" day of October, 2007, a true and correct copy of the foregoing document was served by means of First Class U.S. mail, first class, postage prepaid, upon the following: Jonathan H. Rudd, Esquire McNees Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 ~~ ~"~ Jodi oons ? r•s ~ : ~~ _. i ~-, a ~ ~~r~' ~7' l',' % ...~ Q c r-4 ,~ , ~u;;: ~~ rn ', SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-05073 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND 4 ARNOLD LOGISTICS LLC VS PENGATE HANDLING SYSTEMS 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: PENGATE HANDLING SYSTEMS INC 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 September 27th 2007 this office was in receipt of the attached return from YORK Sheriff ' s Costs : So answers _ ~"`" ~-- ~__ _ Docketing 18.00 ,~~ _~ -' ,::-~ "-~ ~ Out of County 9.00 / n7 fj " ~'~ ~ E 1 Y _ _ Surcharge 10.00 (DIp9) R. Thomas Kline Dep York County 27.85 ~~j Sheriff of Cumberland County Postage 1.26 66.11 09/27/2007 MCNEES WALLACE NURICK Sworn and subscribe to before me this day of A.D. T' YORKTOWNE BUSINESS FORMS, INC. Ph. (717) x345-5955 Fax (717) 848-8936 email: ybf@blazenet.net • COUNTY OF YORK OFFICE OF THE SHERIFF SER7~? ~ 96 It~ 45 N. GEORGE ST.,YORK, PA 17401 SHERIFF SERVICE MiSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN P~-EASE TYPE 01~_Y L~ 1 TtftU 12 ~O NQT DETACH ANY COPS 1 PLAINTIFF/S/ 2 COURT NUMBER Arnold Lo istics LLC ~ 7-5073 Ci vi 1 4 TYPE OF WRIT OR COMPLAIN ~ t, 1 t, n cx 3 DEFENDANT/S/ N O T I C E Pengate Handling Systems, Inc. Civil Complaint SERVE 5 NAME OF INDIVIDUAL, COMPANY. CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED. ATTACHED. OR SOLD Pengate Handling Systems, Inc. 6 ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO ,CITY, BORO, TWP .STATE AND ZIP CODE) AT 3 Interchange Place, York 17402 7 INDICATE SERVICE O PERSONAL }~ PERSON IN CHARGE DEPUTIZE , ERT MAIL U 1ST CLASS MAIL U POSTED 'J OTHER NOW ,.,, ~ } ~ o , 20 0 7 I, SHERIFF OF COUNT-Y, P , d he y deputize th riff of Yor~~J COUNTY to execute this nd e r her rcl g to law. This deputization being made at the request and risk of the plaintiff., SHERIFF OF O NTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SER~ ~ 0 F C 0 U N T Y 'Cumber 1 anc~ ADU FEE PAID BY ATTY. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sherrH levying upon or attaching any property under within wnt may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment. wdfaut Gadlity on the part of such deputy or the sheriff to any plaintiff herein for arty loss, destnrdion, or removal of any property before shenH's sale thereof. 9. TY~'`E JfY"end AD f A~ NEY RIGINATOR and SIGNATURE 10. TELEPHONE NUMBER t t DATE FILED Jonathan H. Rudd 717-232-8000 - 2 4- 2 0 0 7 12. NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed d notice is to t>e marled) athan H. Rudd, Esq., McNees Wallace & Nurick P.O. Box 1166, Harrisburg, PA 17108 CUMBERLAND CO SHERIFF SPACE BEi.OW FOR USE ~ TIE S~ - ~ NOT WRRE DEL.©W T1iS 11>NE 13. I acknowledge receipt of the writ 14. DATE RECEIVED 15 ExpirationlMeanng Date tx complaint as indicated above. m j m C g l l l Y C S O 8- 31- 2 0 0 7 16. HOW SERVED: PERSONAL RESIDENCE ( ) POSTED ( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ( ) E S BELOW 17. O I hereby CeAily and return a NO OUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 18. NAME AN TL ERVED /LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19 Date f Se ice 20 Time of Sernce 21. ATT£M Date Time k Date Time Mdes Int Dale Time Miles Int. Date Tine M4es Int. Dale Time Mile I Dale Time Miles Int. Ib 22. REMARKS 23 Advance Costs 24 Sernce Costs 25 N/F 26 Mileage 27 Postage 28 Sub Total 29. Pound 30 Notary 31 Surchg 32 Td. Costs 33 Costs Due o eland ,Lied ~~OO.oo .p u, a• ~ .d0 ~ 34. Foniyn County Costs 35. Advance Costs 36 Service Gosts 37 Notary Cert. 38 Mileage/Postage/Not found 39 Total Costs 40 Costs Due or Refund < ...~.~. 41. AFFIRMED and subscribed to befor this 44. Signature of 42 day of S EPZ . 2A ~ 749:... - - Dep. SfterkR ~ NOTARY 46 Signature of • k _, I J County Sherifl _ WILLIAM M HOSE,SHERI _., 49 Signature of Foreign _ _._ County Shenf- ,~,j. ~ ~ 45. DE ~~- 47 D/ ~~G Q 49 DATE ~ . t 1? ~ , ~ _ _. •J '' "' ~'' F,*^+~.: .., '`,-~~ ,y .. ye k.~.. ,. '..:, ;. ~. '. ' ' ~. g` t . .. i ~ ...._ . p. f E w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ARNOLD LOGISTICS, LLC Civil Action -Law Plaintiff, v. No. 07-5073 PENGATE HANDLING SYSTEMS, INC. Defendant. PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW COMES, Plaintiff Amold Logistics, LLC, ("Arnold") by and through its attorneys, McNees Wallace & Nurick LLC, and makes the following reply to Defendant Pengate Handling Systems, Inc.'s ("Pengate") New Matter. 1. Denied. This paragraph states a legal conclusion which requires no response. 2. Denied. This paragraph states a legal conclusion which requires no response. 3. Denied. This paragraph states a legal conclusion which requires no response. To the extent a response is required, it is expressly denied that there was satisfaction of any accord reached by the parties. To the extent the three (3) proposals set forth in Arnold's letter to Pengate of September 29, 2004 can be considered as a proposed accord, Pengate never complied and satisfied any of the three (3) options set forth in such letter. The additional racking supplied by Pengate was not capable of installation in its supplied condition and was never installed. Further, Pengate never paid Arnold for the lost pallet positions at the monthly rate of $7.92 from the time the original racking was installed until the additional racking was fully installed and operational, which has yet to take place. Accordingly, Pengate has not complied and satisfied the proposed accord, and as such, there has been no accord and satisfaction. 4. Denied. This paragraph states a legal conclusion which requires no response. 5. Denied. This paragraph states a legal conclusion which requires no response. To the extent a response is required, it is expressly denied that Arnold ever provided Pengate with a release. Pengate never completely performed any of the proposals set forth in Arnold's letter of September 29, 2004, and no release was ever provided to Pengate as a consequence of its non-performance of any of the proposed resolutions. 6. Denied. This paragraph states a legal conclusion which requires no response. To the extent a response is required, it is denied that Arnold spoliated any evidence. Pengate has had ample opportunity to inspect all evidence associated with its supply of racking to Arnold. 7. Denied. This paragraph states a legal conclusion which requires no response. 8. Denied. This paragraph states a legal conclusion which requires no response. 9. Denied. This paragraph states a legal conclusion which requires no response. 10. Denied. It is expressly denied that Arnold has not been damaged as a result of Pengate's actions. It is expressly denied that Arnold does not continue to 2 suffer damage as a result of Pengate's actions. Pengate supplied non-conforming racking systems, and Amold's damages consist of the cost to obtain conforming racking systems, together with all incidental and consequential damages. 11. Denied. It is expressly denied that Pengate cured its breach of contract with Arnold. The additional racking supplied by Pengate was itself incompatible and never installed. Further, Pengate never paid Arnold the monthly rate of $7.92 per pallet position for all pallet positions lost from the time the original racking system was installed until the additional racking was installed, which has never occurred. 12. Denied. It is expressly denied that any of Arnold's damages were caused in whole or in part by the acts of Arnold. Rather, all of Arnold's damages were caused by Pengate's breach of contract and breach of warranty as set forth in the Complaint. 13. Denied. It is expressly denied that Arnold's damages were caused by the acts of third parties, or the acts of Arnold's agents. Rather, all of Amold's damages were caused by Pengate's breach of contract and breach of warranty as set forth in the Complaint. 14. Denied. It is expressly denied that Arnold has failed to mitigate its damages. Arnold has repeatedly attempted to have Pengate correct its breaches of contract and warranty, but Pengate has failed to properly take corrective action to prevent further damages to Arnold. 15. Denied. This paragraph states a legal conclusion which requires no response. By way of further answer, Arnold objects to Pengate raising any additional defenses which it knew or should have known at the time it filed its Answer and New Matter. 3 WHEREFORE, Plaintiff Arnold Logistics, LLC demands judgment in its favor and against Defendant Pengate Handling Systems, Inc. as demanded in the Complaint, and further demands that Pengate's New Matter be dismissed. Respectfully submitted, McNEES WALLACE & NURICK LLC t~ Jonathan H. Rudd Attorney I.D. No. 56880 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5405 (phone) (717) 260-1737 (fax) jrudd@mwn.com Attorneys for Plaintiff Arnold Logistics, LLC Dated: October ~, 2007 4 VERIFICATION I hereby certify that I, Thomas Collingsworth, am the Director of Risk Management of Plaintiff Arnold Logistics, LLC and I have the authority to verify this Reply to New Matter on its behalf. I certify that the facts set forth in this Reply to New Matter are true and correct to the best of my knowledge, information, and belief. In making this verification, I am relying on my attorneys' advise. The wording of this document is that of my attorneys and not my own. I understand that false statements herein are made subject to the penalties of 18 PA.C.S; 4904, relating to unsworn falsification to authorities. Thomas Co lingsw rth Dated: October ~ ~ , 2007 CERTIFICATE OF SERVICE hereby certify that on this ~ day of October, 2007, I served a copy of the foregoing document by first class United States mail, postage prepaid upon the following: Robert J. Tribeck Rhoads & Sinon LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 k~l an H. Rudd N ~ ~~' ~~ ..,.s '~'i "Cr ,~'.' L'3 r~-p~ _. t"3 _ ~;;~ ~ ~ ~~. ---f ' el t=-- ,'' i; N -gym _ fV ., ~ ^. ~t e-._Y ~ _ Y.,e A` i ~~' Arnold Lo istics LLC ~~» ~ t ~ Plaintif ~ ~~ vs Case No. 07-5073 ~t3~~~~~~~~~i C€~~l~~T'~ ~~°~SYl~~ll~1~~~ Pengate Handling Systems, Inc. Defendant Statement of Intention to Proceed To the Court: Plaintiff Arnold Logistics , LLC intends to proceed with the above captioned matter. Print Name 3onathan H. Rudd Date: October 19, 2010 Sign Na Attorney for Arnold Logistics, LLC Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Ru1e230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of ternnation on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros whichexits independently of termination under Rule 230.2. OF C„�1 David D. well ti ° �' 8 lfnee K Simpson Prothonotary o ;RSA: z 1St Deputy Prothonotary zr $(Jé k5. Sohonage, ESQ. Irene E. Morrow Solicitor 7750 Td Deputy Prothonotary Office of the Prothonotary Cumberland County, Pennsylvania 67- 73 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • T'ax(717)240-6573