HomeMy WebLinkAbout03-5420L.B. SMITH, INC.,
Plaintiff
V.
KEYSTONE QUARRY, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND, PENNSYLVANIA
CIVIL ACTION LAW
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 det~nses or objections to the claims set forth against you. You are warned that
if you fail to do so the case may proceed without you and a judgment may be entered against you by
the Court without further notice for any money claimed in the Complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY COURT ADMINISTRATOR
Courthouse, Fourth Floor
Carlisle, PA 17013
(717) 240-6200
L.B. SMITH, 1NC.,
Plaintiff
KEYSTONE QUARRY, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND, PENNSYLVANIA
CIVIL ACTION LAW
NO.
AVISO
USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mas adelante en las siguientes paginas, debe romar accion dentro de los
proximos veinte (20) dias despues de la nofificacion de esta Demanda y Aviso radicando
personalmente o por medio de un abogado trna comparecencia escfita y radicando en la Corte por
escfito sus defensas de, y objeceiones a, las demandas presentadas aqui en contra suya. Se le
advierte de que si usted falla de tomar accion como se describe antefiormente, el caso puede
proceder sin usted y un failo por cualquier suma de dinero reclamada en la demanda o cualquier otra
reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte
sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para
usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A
UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE
ENCONTRAR ASISTENCIA LEGAL.
CUMBERLAND COUNTY COURT ADMINISTRATOR
Courthouse, Fourth Floor
Carlisle, PA 17013
(717) 240-6200
Dean F, Piermattei, Esquire
Attorney I.D. No. 53847
Stephanie E. DiVittore, Esquire
Attorney I.D. No. 85906
Pd-IOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for L.B. Smith, Inc.
L.B. SMITH, INC.,
Plaintiff
KEYSTONE QUARRY, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND, PENNSYLVANIA
CIVIL ACTION LAW
NO. t55 - a"q,,h:5
COMPLAINT IN REPLEVIN
NOW COMES Plaintiff, L.B. Smith, Inc. ("L.B. Smith"), by its attomeys, Rhoads & Sinon
LLP, and files the within Complaint, stating as follows:
I. L.B. Smith is a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania, with its principal place of business located at 2001 State Road,
Camp Hill, Cumberland County, Pennsylvania 17011. At all relevant times, L.B. Smith was
engaged in the business of designing, constructing and installing industrial equipment for use in
quarry and other industrial operations.
2. Upon intbrmation and belief, Defendant Keystone Quarry, Inc. ("Keystone") is a
Pennsylvania corporation with its principal place of business located at P.O. Box 249, Dunham
Drive, Scranton, Lackawanna County, Pennsylvania 18512.
3. In accordance with L.B. Smith's busIness of designing, constructing and installing
industrial equipment for use in quarry and other operations, Keystone contacted L.B. Smith at is
486425,1
Cumberland County operation, seeking to conO'act with L.B. Smith to construct and install an
Aggregate Crushing and Screening Plant ("New Plant") for use in stone aggregate production at the
Keystone facility.
4. Pursuant to the parties' original agreement, L.B. Smith agreed to construct this
System in exchange for payment in the amount of $9,000,000.00. The parties executed a Customer
Order evidencing the agreement. (A copy of the Customer Order is attached hereto as Exhibit "A"
and incorporated herein by reference).
5. After commencement of the work, the parties agreed to amend the terms of the
contract. Specifically, the Parties agreed that L.B. Smith would construct and install the New Plant
on the Keystone site in exchange for payment in the amount of $7,000,000.00, possession of a prior
plant utilized at the Keystone operation, an Allis H-4000 Portable Closed Circuit Plant ("Old Plant")
and use of an additional plant utilized by Keystone in constructing the New Plant.
6. In accordance with the amended terms, after Keystone Quarry made the initial
payment in the amount of $9,000,000.00, L.B. Smith delivered payment in the amount of
$2,000,000.00 to Keystone.
COUNT I - REPLEVIN
(Allis H-400 Portable Closed Circuit Piano
Paragraphs 1 through 6 above are incorporated herein by reference.
8. In 2003, difficulties developed with respect to the installation of the New Plant.
Specifically, although L.B. Smith designed and constructed the New Plant pursuant to Keystone's
specifications, Keystone altered the design specifications resulting in difficulties with operation.
-2-
The New Plant as designed by L.B. Smith would be fully operation and conform to the
specifications as originally provided.
9. Additionally, there was a difficulty with a probe utilized in the New Plant. The
probe was manufactured and sold by Milltronics, not L.B. Smith. L.B. Smith, however, in an effort
to insure proper installation, worked with an independent contractor and Milltronics to inspect and
repair any defective probes.
10. Keystone also raised issues with respect to the adjustment of speeds and rates for the
New Plant. As the independent contractor confirmed, however, the PLC program selected by
Keystone does not allow for easy adjustment of speeds and rates.
11. Other difficulties were the result of electrical work performed by the electrician
chosen by Keystone. Specifically, the electrician failed to properly program the New Plant.
12. Despite the fact that these difficulties were not a result of defective design or
installation, but instead work performed by subcontractors specifically chosen by Keystone, L.B.
Smith attempted to work with Keystone to resolve these issues.
13. L.B. Smith fully and completely performed its work as obligated by the parties'
agreement, designing, constructing and installing the New Plant in accordance with the contract
specifications. L.B. Smith completed its work in 2003.
14. Despite L.B. Smith's performance, however, Keystone has refused to release the Old
Plant pursuant to the parties' agreement. The Old Plant is valued at approximately $292,000.00.
-3-
15. Notwithstanding L.B. Smith's return of $2,000,000.00 of the original contract
mount and the installation of the New Plant, Keystone has wrongfully retained possession of the
Old Plant and continues to retain possession of the Old Plant.
16. L.B. Smith has the right to immediate possession of the Old Plant.
WHEREFORE., Plaintiff L.B. Smith, Inc. demands judgment in replev'm in its favor and
against Keystone Quarry, Inc. for:
(1) possession of the Allis H-4000 Portable Closed Circuit Plant; or
(2) in the alternative only, the value of the Allis H-4000 Portable Closed Circuit Plant
with interest to the date of judgment, in the event possession of the Allis H-4000
Portable Closed Circuit Plant cannot be obtained, being a sum in excess of
$292,000.00; and
(1) any and all relief which this Court deemed appropriate.
COUNT II - CONVERSION
(ALL1S H-4000 PORTABLE CLOSED CIRCUIT PLANT)
17. L.B. Smith incorporates herein by reference Paragraphs 1 through 16 above.
18. Keystone has intentionally exercised dominion and control over the Old Plant from
the time difficulties developed with respect to the installation of the New Plant by L.B. Smith.
19. The wrongful detention of the Old Plant constitutes a serious interference with L.B.
Smith's immediate right of possession of the Old Plant.
20. Keystone has failed and refused, and cont'mues to fail and refuse, to permit L.B.
Smith to retrieve the Old Plant and has unlawfully converted the same to its own use.
21. As a result of the foregoing, L.B. Smith has been deprived of the possession, control
and enjoyment of the Old Plant.
-4-
22. L.B. Smith has sustained, and will continue to sustain, damages from loss of use of
the Crane caused by the unlawful conversion of the Old Plant by Keystone.
WHEREFORE;, Plaintiff L.B. Smith, Inc. demands judgment in replevin in its favor and
against Keystone Quarry, Inc. for:
(1) possession of the Allis H4000 Portable Closed Circuit Plant; or
(2) in the alternative only, the value of the Allis H-4000 Portable Closed Circuit Plant
with interest to the date of judgment, in the event possession of the Allis H-4000
Portable Closed Circuit Plant cannot be obtained, being a sum in excess of
$292,000.00; and
(3) any and all relief which this Court deemed appropriate.
COUNT III - REPLEVIN
(Model RT860 Rough Terrain Hydraulic Crane)
23. Paragraphs 1 through 22 above are incorporated herein by reference.
24. In order to install the New Plant at Keystone's Dunmore facility and remove the Old
Plant, L.B. Smith transported to the site a piece of equipment, a Model RT860 Rough Terrain
Hydraulic Crane, Serial No. 220883 ("Crane") owned by L.B. Smith and valued at approximately
$300,000.00.
25. The Crane was necessary for proper installation of the New Plant as well as removal
of the Old Plant, and, at all times relevant hereto, L.B. Smith retained title to the Crane.
26. As a result of the difficulties with the New Plant, Keystone has wrongfully retained
possession of the Crane.
27. By correspondence dated August 28, 2003, L.B. Smith demanded return of the
Crane. L.B. Smith requested that Keystone agree to provide access to the Crane to enable L.B.
Smith representatives to remove the Crane, and the Old Plant, from the Project site. (A copy of the
-5-
August 28, 2003 Correspondence is attached hereto as Exhibit "B" and incorporated herein by
reference).
28. Notwithstanding L.B. Smith's demand, Keystone has refused to provide access to
the Crane for removal, and the Crane continues to be in the possession of Keystone.
29. L.B. Smith has the fight to imtnediate possession of the Crane.
WHEREFORE, PlaintilT L.B. Smith, Inc. demands judgment in replevin in its favor and
against Keystone Quarry, Inc. for:
(2) unimpeded access for recovery of possession of the Crane; or
(3) in the alternative only, the value of the Crane with interest to the date ofjudgment,
in the event possession of the Crane cannot be obtained, being a sum in excess of
$300,000.00; and
(4) any and all relief which this Court deemed appropriate.
30.
COUNT IV - CONVERSION
(Model RT860 Rough Terrain Hydraulic Crane)
L.B. Smith incorporates herein by reference Paragraphs 1 through 29 above.
31. Keystone has intentionally exercised dominion and control over the Crane from the
time difficulties developed with respect to the installation of the New Plant by L.B. Smith.
32. The wrongful detention of the Crane constitutes a serious interference with L.B.
Smith's immediate right of possession of the Crane.
33. Despite iL.B. Smith's demands that the Defendants provide access for the unimpeded
retrieval of the Crane, Keystone has failed and refused, and continues to fall and refuse, to permit
L.B. Smith to retrieve the Crane and has unlawfiflly converted the same to its own use.
-6-
34. As a result of the foregoing, L.B. Smith has been deprived of the possession, control
and enjoyment of the Crane.
35. L.B. Smith has sustained, and will continue to susta'm, damages from loss of use of
the Crane caused by the unlawful conversion of the Crane by Keystone.
WHEREFORE,, Plaintiff L.B. Smith, Inc. demands judgment in replevin in its favor and
against Keystone Quarry, Inc. for:
(4) unimpeded access for recovery of possession of the Crane; or
(5) in the alternative only, the value of the Crane with interest to the date of judgment, in
the event possession of the Crane cannot be obtained, being a sum in excess of
$300,000.00; and
(6) any and all relief which tiffs Court deemed appropriate.
36.
COIJNT V- BREACIt OF CONTRACT
L.B. Smith incorporates herein by reference Paragraphs 1 through 35 above..
37. As set fm~h above, Keystone failed to comply with its contractual obligations to L.B.
Smith.
38. Specifically, Keystone breached its obligations to L.B. Smith in failing to return the
Allis H-400 Portable Closed Circuit Plant, previously defined as the Old Plant, as obligated by the
Parties' Agreement.
39. As a result of Keystone's breach of its obligations, L.B. Smith has suffered, and
continues to suffer damages, including without limitation the loss of use of the Old Plant, the value
of the Old Plant, interest with respect to the period in which Keystone wrongfully retained the Old
Plant and lost profits from L.B. Smith's inability to sell the Old Plant during the prime period for
such sales.
WHEREFORE, Plaintiff L.B. Smith, Inc. demands judgment in its favor and against
Keystone Quarry, Inc. :for damages in an amount in excess of $35,000.00, together with other relief
as this Court deems appropriate.
Respectfully submitted,
RHOADS & S1NON LLP
Stephanie E. DiVittore
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
-8-
CUSTOMER'S ORDER
The undersigned ~ to ,~he lol[o~'in.g a.d. dition~a_L t~_r. ra~s a.n_d.~n~d~i~S~uch cash con$:deratl ...... bef e the delivery off, he good., here!n~m,en ,tl~ned.
J[~L~tsOrderfs,foratim?a!e,. · ..~--~..L.g~u edb~Sellerand/o mutuallyagreedapon. IfthisOrderis£,,r arent~l, theunders'gne~ ~gr~._.~.
:' ' 7. Other than the manufacturer's s~and~rd written expres~y?ra~ty, wit~ r~p~t
ment and/or ~ade aee~ssori~ the subj~ of this Order, ~pon wnicn such manufacturers omy snm~
liable; there are no rep~entations, wartanti~ or ~aran~, oxp~ or xmphed or st~t~e~
~ rm~t to quali~, mercha?ab~hty a~o/or t!tnms tot parttc~lar
nt d(~nt~ ~ c~ cost~f( pitm. '' 1'
' ~"~' ~ ~"'~ ~2;~ .... I .~or is not bound by ~, ~ repr~entations or terms made by ~y agent reta~ve tq
~ transaction which.are not emb~hereln m wr~b g.
ATTORNEYS AT LAW
TWELFTH FLOOR
ONE SOUTH ~ARKET SQUARE
P,O. BOX 1146
~ARRISBURG~ PA 17108-1146
TELEPHONE (717) 233-5731
FAX (717) 231-669'~
E M A I L jmanbeck@rhoads-sinon.com
W E B S I T E: www.rhoads-sinon.corn
August 28, 2003
Re: L.B. Smith, Inc.
OF COUNSEL
HENRY W. RHOADS
RET[RED
JOHN C, DOWLJNG
PAUL H, RHOADS
1907-1984
F~ANK A. SINON
19L0-2003
JOHN M. MUSSELMAN
(717) 231-6602
FILE NO.
1299/
Louis Denaples, President
Keystone Quarry, Inc.
P.O. Box 249
Dunham Drive
Dm~nore, PA 18512
Via Facsimile 570.348.3135 & Regular
Mail
Dear Mr. Denaples:
Rhoads & Sinon LLP has been retained to represent L.B. Smith, Inc. ("L.B. Smith") with
respect to a dispute regarding the installation of a crushing system at your Dunmore,
Pennsylvania facility. Specifically, this letter is to address a piece of equipment -- owned by L.B.
Smith -- that remains on your Dumuore Property. As you are aware, in erecting the crushing
system for Keystone Quarry, Inc. ("Keystone Quarry"), L.B. Smith was compelled to utilize its
own equipment, including a heavy equipment crane that remains at the Dunmore, Pemlsylvania
site. We understand you have refused to allow L.B. Smith to remove the crane from the site.
At this time, L.B. Smith is requesting that Keystone Quarry permit unopposed access to
the Dunmore property in order for L.B. Smith representatives to retrieve this equipment at a
mutually agreeable date and time prior to September 8, 2003. To the extent that you will not
pem~it L.B. Smith representatives or agents access to the site in order to remove the crane, or to
the extent you impede L.B, Smith's access to the crane in any manner, we will be fomed to
proceed with litigation for the return of the equipment. Specifically, L.B. Smith will be fomed to
institute an action in Replevin and obtain a writ of seizure to be executed by the Lackawanna
County Sheriff. L.B. Smith will seek m~ immediate hearing and writ of seizure in accordance
with the Pennsylvania Rules of Civil Procedure.
An action in Replevin will be avoided, however, if you notify L.B. Smith on or before the
close of business Wednesday, September 3, 2003, that you will permit L.B. Smith to retrieve the
equipment and agree to a date when the equipment can be removed. If you do not agree to allow
L.B. Smith representatives to load and remove the crane, we will file a Complaint no later than
Friday, September 5, 2003.
4856681
LANCASTER;
TELEPHONE (7/7) 397-~43~, FAX (717)232-1459
September 9, 2003
Page 2
Thank you for your prompt attention to this matter, we look forward to your response
CCi
R.E. Jordan I[, President
L.B. Smith, Inc.
Very truly yours,
Pal"lOADS ~:; SINON LLP
By:
John P. Manbeck
VERIFICATION
Michael March, deposes and says, subject to the Penalties of 18 Pa.C.S.A. §4904 relating to
unswom falsification to authorities, that he is the Executive Vice President of ECHO Industries,
Inc., an affiliate of L.B. Smith, Inc., that he makes this verification by its authority and that the facts
set forth in the foregoing Complaint are true and correct to the best of his knowledge, information
and beliefi
Dean F. Piermattei, Esquire
Attorney I.D. No. 53847
Stephanie E. DiVittore, Esquire
Attorney I.D. No. 85906
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for L.B. Smith, Inc.
L.B. SMITH, INC., :
:
Plaintiff :
v. :
KEYSTONE QUARRY, INC., :
:
Defendant :
IN THE COLIRT OF COMMON PLEAS OF
CUMBERLAND, PENNSYLVANIA
CIVIL ACTION LAW
NO. 2003-5420
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Kindly mark the docket in this matter, settled, discontinued and ended.
Date: December 29, 2003
Respectfully Submitted,
RHOADS & SINON LLP
.
ennattel, lzsqlll~
Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-.5731
Attomeys for Plaintiff
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2003-05420 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
L B SMITH INC
VS
KEYSTONE QUARRY INC
Thomas Kline
duly sworn according to law, says, that he made a
and inquiry for the within named DEFENDANT
KEYSTONE QUARRY INC
but was unable to locate Them in his bailiwick.
deputized the sheriff of LJ~CKAWANNA County,
serve the within COMPLAINT - REPLEVIN
Sheriff or Deputy Sheriff who being
diligent search and
to wit:
He therefore
Pennsylvania, to
On January 12th , 2004
attached return from LACKAWANNA
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
Dep Lackawanna Co 28.40
Notary 2.00
67.40
0 /12/2004
RHOADS & SINON
Sworn and subscribed to before me
this /~ day offS7
Prothonotary
this office was in receipt of the
So answers~/ ~
R. Thomas Kline
Sheriff of Cumberland County
SHERIFF'S RETURN - REGULAR
CASE NO: 2003-00538 T
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF LACKAWANNA
L.B. SMITH INC.
VS
KEYSTONE QUARRY INC.
JOHN SYMONIES
County, Pennsylvania, who being duly sworn according to law,
says, the within NOTICE AND COMPLAINT was served upon
KEYSTONE QUARRY, INC.
DEFENDANT , at 0001:20 Hour,
at DUNHAM DRIVE
SCP~ANTON, PA by handing to
DAN O'BRIEN BUS MGR AT DUNHAM DR SCRAIqTON PA
a true and attested copy of NOTICE AND COMPLAINT
, Deputy Sheriff of Lackawanna County
on the 12th day of November
the
, 2003
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing ~ ~ .00
Service ~- ' .00
Affidavit ~ .00
Surcharge .00
.00
.00
Sworn and Subscribed to before
me ~his -~[2~ day of
Notary
~eriff
In The Court of Common Pleas of Cumberland County, Pennsylvania
L.B. Smith Inc
VS.
Keystone Quarry, Inc
SERVE: sa~e 03-5420 civil
No.
NOW, October 15, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Lackawanna Cbunty to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
NOW~
within
upon
at
by handing to
a
and made known to
Affidavit of Service
, 20 ., at
o'clock M. served the
copy of the original
So answers,
the contents thereof.
Sworn and subscribed before
me this __ day of
,20
Sheriff of
COSTS
SERVICE
MILEAGE
AFFIDAVIT
County, PA