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Home My WebLink About95-07148 J ~ .~ j ~ 00 "t- - r ..~ ~ v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95- )/~.Y twY~ BETHLEHEM STEEL CORPORATION, Plaintiff . . . . PAVEK, INC. and GREAT AMERICAN: INSURANCE COMPANIES, Defendants CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 . BETHLEHEM STEEL CORPORATION, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. v. PAVEX, INC. and GREAT AMERICAN: INSURANCE COMPANIES, Defendants CIVIL ACTION - LAW COMPLAINT AND NOW COMES, Bethlehem Steel Corporation, by and through its attorneys, Knupp & Kodak, P.C., and files this Complaint, of which the following is a statement: 1. Plaintiff is a Delaware corporation with its principle place of business located at 1170-Eighth Avenue, Bethlehem, Northampton County, Pennsylvania. 2. Defendant Pavex, Inc., is a Pennsylvania corporation with its principle place of business located at 4400 Gettysburg Road, Camp Hill, Cumberland County, Pennsylvania. 3. Defendant Great American Insurance Companies is an Ohio corporation, licensed to do business in Pennsylvania, and further authorized to sell insurance in Pennsylvania; its principle place of business is located at 580 Walnut Street, Cincinnati, Hamilton County, Ohio 45202-3180. 4. On or about July 20, 1994, Structures Unlimited, Inc., issued Purchase Order No. 3377 for 147 pieces of structural steel to be manufactured by Plaintiff. Before shipping the order, Plaintiff verified that the steel was to be incorporated into noise barriers 1 for the Pennsylvania Department of Transportation, York County Project No. SR101B, Sec. 002. 5. Structures Unlimited, Inc., filed for bankruptcy on January 19, 1995. 6. Plaintiff notified pavex, Inc., the general contractor on the above project, and Great American Insurance Companies, the bonding company on the above project, as required by law. A copy of the material sent by Plaintiff for notification, including evidence of the type of mailing, is attached hereto, collectively marked Exhibit "A," and incorporated herein by reference. 7. Plaintiff is owed $52, B46. 30, plus interest from July 20, 1994, as evidenced by Plaintiff's invoices, copies of which are attached hereto, collectively marked Exhibit "B," and incorporated herein by reference. B. Pennsylvania law required, for this project, that pavex, Inc., provide payment security to guarantee payment to suppliers such as Plaintiff, who supplied materials in the prosecution of the work on Pavex's contract with the Commonwealth of Pennsylvania. 9. As a part of the contract with the Commonwealth of Pennsylvania, pavex, Inc., as principal and Defendant Great American Insurance Companies, as surety, executed a payment for the use and protection of all persons supplying labor and materials to Pavex, Inc., or to its sub-contractors and sub sub-contractors in the prosecution of the work provided for, in the aforesaid contract. Said payment bond provided, inter Alli, that every 2 person supplying materials to the contractor or its subcontractors and sub sub-contractors in the prosecution of the work who has not been paid in full may sue on the surety's payment bond, prosecute the suit to final judgment and have execution thereon. A copy of said bond is attached hereto, marked Exhibit .C," and incorporated herein by reference. 10. Despite plaintiff's repeated demands for payment from pavex, Inc., Pavex, Inc. has refused to make payment. 11. Plaintiff made formal demand for payment as required by said bond, to both pavex and Great American Insurance Companies, fulfilling all conditions required by said bond in order to be entitled to payment pursuant thereto. A copy of the demand package is attached hereto, marked Exhibit "D," and incorporated herein by reference. 12. Plaintiff last sold materials on the project described herein on September 20, 1994, and waited ninety (90) days before making demand on Great American Insurance Companies for payment, as required by the payment bond described herein. 13. Despite Plaintiff's clear entitlement to payment, and Plaintiff's following of all conditions set forth in the payment bond, both Defendants have refused to tender payment to Plaintiff of the balance due to Plaintiff. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in its favor and against the Defendants, jointly and severally, for $52,846.30, plus interest from October 25, 1994, 3 ,,_.,,'..,....;~}.-<.~'''"_ .""'.,...,:":"".10.,.....'-)< """"'-";'-".-'.':'-' we:," along with the costs of this action, and any other relief this Court deems appropriate. 12./<"/9i/ Date I I ~~- Robert D. Kodak Attorney for Plaintiff 407 North Front Street P. O. Box 11848 Harrisburg, PA 17108-1848 (717) 238-7151 Supreme Court I.D. #18041 4 ,.....'.,,-..' ,.'. . 1170 Elghlh Avenue BETHLEHEM, PA 1eOte.ntl FINANCE DEPARTMENT ClltlDlf DIVIIIOH TIUX, 1..1U1 FAX: IIIDIIU.UI1 October 20, 1994 Pavex. Inc. 4400 Gettysburg Road Camp Hill. P A 17011 REGISTERED MAIL Gentlemen: Re: PcnnDOT Noise BlllTicr Job York County. PA SRIOl8 Sec. 002 NOTICE We hereby notify you that Bethlehcm Steel Corporation. having an address at 1170 Eighth Avenue, Bethlehem. PA 18016. furnished structural steel to your subcontractor. Structures Unlimited, Inc.. 440 Wenger Drive, Epbrata, PA 17522 for incorporation into the above referenced project and bas not received payment for this material. Structures Unlimited, Inc. is indebted to Bcthlehcm for this material for a total amount of S52.846.30. This notice is furnishcd under the provisions of the Pennsylvania statutes covering bonds on public improvements. Sincerely, R. C. Hoffeld Credit Representative RCH:pk cc: Great American Insurance Co. clo Striewig Bonding Agency P.O. Box 161 Camp Hill, PA 17001-0161 REGISTERED MAIL Structures Unlimited. Inc. 440 Wenger Drive Epbrata, PA 17522 .. ,.'- D Stratton - Baltimore ""'<'" ....-'~,..'.'.,."., --,-~ '- .- -"'.>> -- (" 1170. I'OHTH AVINUI B1iTHLEHEII. PA 1101.-,.11 FINANe& D&PAATIl&NT ALIIl" J. ........ COlLlcnON M......... TlUX, ...,.., PAX, 1110'''.'''" November 14. 1994 Mr. Berry G. Hoffman District Engineer Pcnnsylvania Dcpartmcnt of Transportation Commonwealth & Forster StrcelS Harrisburg. PA 17120 REGISTERED MAIL Re: PennDOT Noisc Barrier Projcct York County SRI018 Sec. 002 Dcar Mr. Hoffman: Enclosed is a copy of a NOTICE scntto your general contractor and the surety of the captioned project. Consider this as your fonnal notification as required by the statutes of the state. In addition to tbis noticc. we arc asking that you provide us with a copy of tbe PAYMENT BOND. Our infonnation indicetes tbat a bond was provided by The Striewig Bonding Agcncy with coverage by Grcat American Insurance. bond number 7571780 in the amount of $4,710.472. Thank you for your assistance in this matter. Sincerely, ,-' Alfred 1. Massi Collection Manager . AIM "" cc: Structures Uallmlted. lac. 440 Weagcr Drive Epbrata. PA 17522 -2- ~ ... ~ - ,.r III Ii z .. I&l !C a ~ I&l a ~ .. ~ ~ ::> ... ~ ~""'ClG\N ....N "''''... ... ... !z ....o.....NN ......... ........ .. "- .... . .. . . ... ::> an~ID""\,Q ......... ..,..,N N = .., .. \00"'....= "''''.., ......... ... .. 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Suar:TY..,.. 14.,11' l",'AIowMf lIft'to tMI1llI11 /1_ "'loth d l'enMVlv.III" ill the .full eM t ....., "-r _~.n ftundr.d ten thou..nll fou,. hundr'" .....ntrtwo .nd UJ'100" r. (f 4,710,472," :t. A8Vful ....w..,.ttt. Unit... IW "'rioa, h b. ...id to th ...... C I nlJulth .."....~lwanla, .. _i_. h whioh ..,....nt _u _d trulv It. It. _"-.._ bi...,WI'- ..1,,_. Our heir.. ex.outa,.., '~nl.t,..tore.. ."d -_ref lIointay ..... .....,..Uv. fll'lllly tw t'-. ""_nt.. ..' ~'" . , '. r. \ ~t ....lod with ..... "Mpoottve ..1. ."., .tod thi. .y 0' ~0v~~~A.D. 19 ~. WHEREAS. tho ebovo bounden 'lINCIPAL he. undo"t.ken to oontreot with tho ..id CO..o~lth of I'enn.vlv.ni.. by .nd through tho Soor.t.ry a' T".n.port.tion o.voring tho wo"k idontified bolaw for opproxi..t.ly tho .u. of four oillion .ovon_____ hundrod ton thau..nd 'our hundr.d e~.nty-two .nd 95'100 dollor. (.___4.710.472."__1. For tho ioprovOMont of 0 c."toin .oction of STATE HI0HWAY in YORK CDUNTY. *AIRVIfN TOHNSHIP. Co..onwoalth of "onn8Vlvonl., STATE ROUTE 101a SECTION 002. '.hie project 1. .ltuet.d ju.t .oath of tho borough of Now CU.borlond frOM Stotion 159+29.a7 CS.,.ent 0010 Of toot 0001) to Stotion 205+43.ge (So,.ont 0020 Off.ot 2344). The Nork eon.i.t. of the eonotruction of . connoctor road with the Dofon.. Di.t"ibutlon Region fe.t, includin, noi.. borrier., .11 within .n overol1 proj.ct 10ngth of 4,'14.11 foet CO.'74 oil.> .. indic.t.d on the drowing epprov.d Nov..b." 22, 1993, end HH~EAS. it woo ono 0' tho condltiano of tho .word of tho Socrot."y 0' Tron.port.tion, .ctlng 101' ond on behalf of the Ca~onw..lth of ~onnoyly.nl., pur.uont to which ..id contr.ct woo undortoken by tho I'RINCII'Al that th... pr...nt. .hould b. axooutod, to bao..o binding upon the doto ..id contr.ct i. .pprovod for ~h. OffiCI of tho Bud.et, by tho Co.~trol10r. IIOH. THEREFORE. Tho condition. of thl. obliaetlon ie .uch ~t if tho .bovo boundon ~RIHCIPAL, .. cont"octor. .hall in oil r..peotl ooaply with .nd foithfully par for. the to,... ond condition. of-.id oontract, and hi., thoir, or It. obl1..tian. thoraundor, inolu6ing tho plana, .pocificationa. .nd condition. th.raln roforrod to and ..de. lUza..93 EXHIBIT 3: ,coe4276CCOHTRACTl c I L!llll'I.I' '~I.III: "'.11, I lUll I r.L : " I. -, " ":-1.1 :,':1, 111"\, '.'';. .I> ~ .' . i.. I' L' . .".',' t . '.' I I'i<tt theroot, and .uoh a1to,.t1.~ .0 "II' ~o ..de In ..ld .~.eif1o.- 0.'th.r01n prOYI~d f.r, and oha11 wall .nd truly, ond In . or ..t1ataotory t. t~ S.orot.ry of Trah8portat1.n, 00.,1.'0 tho oontroototl fer, .nd .ha11 NV. hare1_ tM,CO_o/'IW..lth of ~lv.ni. froe anII' o...na. inourred throulh tM f.ilur. .f ..id ,.....tr.otor to o_loto tho ...rk a. ....elf1.d, .r for anII' ...... ~nl out of the aoro1...n... andlor 1'..11"1'00 .f ..id o.ntr.etor .r hi., thel,., 0,. ita ..,.".nla. . " , .;, , , And ....11 ..vo .nd koo. harol... the ..id C_onw..lth of tOlll\8VlY.ni. o.dnot ond frOlll 011 h.... 'to it f,... .1'11' ..-. .....'.0- .v.r, including ,.bnt, trod_rk, ond ~rilht infrin..-rtta, in tho "1'1'0" of ~on.t~otin. ..id oootion of roidwoVI thoI' thio .~li..tion to ... ....id .r othend.. tD ... ond r_in in full oforo. ond Ifk~ It 18 fu,.th.r p,.ovided that .1'11 .Uorationa whioh _II' .,. .;iir in tho to"" of tho oont,.ot 0" in tho work to ~o don. undor it o"~ .iving by the Co..._lth of 01'11' oIlCtonai.n of ti.. f.r..thtt ...rfo,.- ..nc. .f tho oontraot 0" .1'11' other f.rbell,.ono. on thtt pe,.t .f oith.r tho Co_on..-tttror-the-f'IUftCl'AL-to-thtt-itthor .hall-net-in .1'11' -II r.l.... tho PRINCIPAL ond tho SURETY or SURETIES or olther or .1'11' of thOM, th.i,. h.ire, .1e.cutO,.., .~lnl.tr.tor., .uoe...oro or ..oigna. f,.o. thair 1iabllitv har.undo~, notic. to tho SURETY or SURETIES of any .uoh oltoroltlon. olCt.n.lon, or forbe.r.no. b.lng h.r.by ..ivod. 1212a/9S 5S cHS.D931228.T2S260e.coe4276ICDHTRACT) __~_____._________M_..-------- TEL:;'I ~.;';-~'-(I~');' 110'./ 1.1:::' ';1':, 1 ~:I~ "o.uu~ ~.U~ f[Willl-ll ':OWTFI.II:TIOII . ..)-. , ~r" ..~c .1 ... .. '. '. ,'~.J:II. "P'1' r'" , .. ,~ . " - . .. . . '. , "rota;. :I: , 1. .\ ,......, ,o.u.-M&.-llY .TIt&S' .1lI!C"r .~v_. .J!:IL .~ _ ......, IlIe..__..... ---'-"'---' .---' ':j' , ._.~.... o.t-tysh...... ~u..,_ .. ___,.._. --' ,_." ~ ..ClIlllr" "111. r...........'. - ~.,.. -"---' ,...' ',Jt... nllle . ~l. ..,~ \..~,...,. .,.. , ,.I~ ,-~~_.._-- . ., . - .... ----. .' .. ...-. ~, t". "It t\,' ,. 1) ,', ~..IlIlM" .... ..~ p. Sr~b . -, ~5".. n.-\ . ~~..,- \~ n. o,f'o,. --(. 'V\-; ~'(" o...'l\~~ Suretv CO....I'lV Cs. '" ~(). d AU..t IV (-- - (-- t?f; 7 ( 1) ',~ ,'\e.f: V-il'l-"'ct ~. 'S-\~.'\t:.~'~'~' Attarnev-in-F.ct Certific.tion liThe Ul'ld.r.igned .ttorn.v-il'l-f.ct bv .xeouting thi. rerfer88l'loe lend e.rtifie. that h.,.he i. licen..d with tha oe.p.ny na..d .a .ur.ty for thi. bond by the r.l'lnavlv.nia lnauranc. D.~rt..nt .nd that to the b..t of hi~h.r knewl.dg. th. ..id .ur.tv i. lic.n..d with the P.nnavlv.ni. lnauranc. D....rt..nt. I INSTRUCTIONS - Pl.... .ion wh.r. indicated (<--). If Corpor.tion, .10n by rr..1d.nt er Vio. Pr..ident and .tteat by Seor.tarv or Tr..eur.r. Affix ...1. If Partn.r.h1p. .ion bv ..ch p.rtner .I'ld witl'l'" .iOl'lllltur. ef ..ch partner. If Individuel, .ion by ~.rieter .nd wttn.... Indic.t. .ur.tv c08genv, .ign bv .ttorney- ill-faet (PA licene.d R..ident Ao.nt OnlY), obt.in witn... .1~tur., ,;~fi'll~r.tv co.peny'. ...1. Attach rew.r of Attorn.v. with ~o...d , ,w. thi. ..... ~ ." .~ 1Z/2&/93 H CHS.D931zza.T23260e.CO'~Z76(CO"T.ACT) rE (II /[i1~1 r ~: 011', T FI.I( T 101/ TEL:~1~-77~-(I~~17 Illl' 11 "_It. t . . , ~ ' ~,v.auG\N INSUMNCE <:oMIWN &10 WALNUT ITAEET. CINCINNATI. OHIO U202 .1113.....5000. FAX 1113.723.27'" be "",,,,ber or penon. lu.horiud by "it power or .uorney u nOl mort than 'DDlEI!: No.O 1516'1 paWER OF A lToaNEY KNOW ALL MEN IV THt:.Sl PRESENTS: Thl' the OREAT AMERICAN INSU''''ANCF. COMPANV. I cotporallon orll.iced ..d ultli., under a.d by vi"uc oflhellwl oflhe S,ate o(Ohio. d~ hereby no.....au. OOftlUtUlt aDd apIlOlnllhc ..non 0' penonl nlmed belo", "IIUC a.d Ilw(uIIIlOI..y.ln.(a.l. ro, il a.d in iu .Ime, plane and lIud lOU_I. inbchaIT-ohhe oaidOlIlll*'Y, Ai IUI<'Y. Iny Ind.1I bond', ,.dcUlki.,1 Ind ,0nlll,1I or lurclylhip. or olherwrillcnoblolalionl in the ".tUI< \hctWf; provided thai tllcliallllity o(thc lI,d Comp"ny on .ny u,h bo.d, undenlkinl 0' COftIlICI or aU",'Ylhip calCuled under lhla aulhorilY ahall nO' nCMd 1M Hmil~ Namc Addtal ~;. 01 Power " ALL OF CNoIP HILL, PmNS'lLVJ\NIA IUlI!:RI' N. I" JW:.I<.l" N. P>>IE[A S. STRIEWIG, S'J'R,I&IIG BlN1'2 JR. Thi. Powe, or Allomey I<vokel III p",vioul powen illucd in behalr or Ihc allo,ncrt.)-in.rlC, n.med .bo... IN WITNESS wHERf.OFlhe OR EAT AMERICAN INSURANCE COMPANV hl.caUS<d thne p"""nlllo be I.&.'d and auc"ed!>) """"p,oprlll< ornecn .nd ill corpo'.le ...1 hcrcunlo .rf,.od ,hi. 7th d.yor May . 19 93 ' A"c" .-:;:--,..., '. OilEAT AMERICAN INSURANCf. COMPANY @ ......... , ' L:-",L.., .' ~ .'. ..-"..- --, ~J "_~_I..l .._ ':1' '" -1."'-__ , . , l't f J.ar t r, ~ STATE Of OHIO. COUNTY OF IIAMILTON -." On ,his 7th d.yor May, 1993 . bero", m, renon.lly .ppear.d GARY T, DUNH"'I, 10 m. hown. MinK duly .worn, dcpoloC' and "Yllh.' ht resided In Cinclnnlli, Ohl(\,thll he is Ihe Presldenl or the Bond Dlttlllon of G,ut American Inlur.ancc Company, the Company dncnbed In and which tlreulcd the- above insuumtnl; Ihl' he know, the KII: that II "'ai so Iffi~ed by lu,hnrll,! o( hil orr"c under I~' By.L.wl or I.,d Complny. .nd ,~.I hllllned hi. n.melhc"IO by li~. au,hol1lY. .... /.": ..; \'I~ .."\11' I. MAUREEN DOUGHERTY NotIfy P\AlIC, Sla\Il 01 OIl.; ..,Oclo'.'~l Expnr Aug. 1~.1996 1)/ a. ~ J' ';"_(:/)&.uf(j~, T (/'J , This PO\WCI of AIIQrney IS Sllnted by IUlhonlY or lhe rollow1fta lelolutlanl Idopu:d by the IIDlld or Direetou or Grul Amer,,:'" Insufll'lcc Company by uftanlmOUI "muen conunl dllcd March I. 1993 RESOL VED. Th., rhr DiVUlDft P~J,dtnr. the leycr.} Div,sion VIC'C' Pra;dcnu .nd An;S/an, V,et' PttudcnlJ. or .n)" ont 0/ ,htm. bt' .nd hereby;J Authonzcd. (rom limt to "mt. '" 'I'pn;n, onC ormon A"ortlerl.ln-F.ct 10 t~tcu't on brh.11 (If ,ht (. "om,.."", as IlIn/)', .n,v-,nd ~1I ,bonds, unl1tn.*tnf'l .nd COIlIr.CU o/,urr,ysh,p, or o,htr wr;ucn tJt,Ii,.IIOdS in the n"Uft' thereDf; '0 ptrcaibt ,heir nsprCI;vr du',rI .nd III; t'tJ~'''W limlU of thtir .u,hom,,'. .nd '0 ft,'olct .n)' luch .ppoin,ment " ,n,' "mt. Rf'SOL VED FUR TilER , Th" Ih. Comp.ny 1..I.nd ,h. II,n.,otr of .ny o( Ihe .t......id om.et$ .nd .n., .~ttr<l.'.' or ""i".n, t S. r:rtl.,:iI (If 'lit Ctlmp.ny m,.v be ,("lI.cd "" f.CJ;mill '0 ,ny po..,r of '"OrtlIY or etni(ic.,t or ti,hrt M,,'tn (0' ,hr t1CCCut,f1n of ,n.", bond, ultJ.,I.liltg. 4'on"I>~ tV lurl'l.",IIIf) (lrntllt, w(II,tn oblt,.,ion,!' Iht n,'ul~ ,htrror, lucll J"n"Ure "nd st" whtn so IJftd htm, htf'tb,. ,dopltd by lite' Comp.ny IS .ht o""n,' li,n,lUff of luch 0/""' and ,ht (1f"in.lsul 0' 'he (,omp.n,r. 10 be """J ,na bifid,", up"" ,',( Camp."." ".j,fUltr "me (OfU .fld ,((tCllaI 'h"u,h m.nu,lI)' ,m"td S,.ncd Ind sClled Ihl' \ c;~ dlynr~"-"")'''::'<)-<;0 .19C~~ ~ ,/ , .~ _~ J~~'_.'- rc"- {,.~;, " - -.... ". , 'f i , ! " ',-. " . ~. '." .~ . . . . '. . . . VERIFICATION I, Richard G. Masters, an Assistant Secretary of Bethlehem Steel Corporation, am authorized to make this verification on its behalf. I verify that the facts set forth in the attached pleading are true and correct to the best of my knowledge, information and belief. I so state subject to the penalties of 18 Pa. C.S. Section 4904 (relating to unsworn falsification to authorities). Date: 1/- ~ f. 'If ~~~ Richard G. Mas rs Assistant Secretary , - .. ".,-~..... 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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-7148 Civil Term BETHLEHEM STEEL CORPORATION, plaintiff PAVEK, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendants CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 ;'"'_''' 'r.I\I..,~~';r-~':-::\l "',"'.',';',,,", \, \':" " ... . . BETHLEHEM STEEL CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-7148 Civil Term v. PAVEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendants CIVIL ACTION - LAW FIRST AMl!:RDED CQMPLll.IRT AND NOW COMES, Bethlehem Steel Corporation, by and through its attorneys, Knupp & Kodak, P.C., and files this First Amended Complaint, of which the following is a statement: 1. Plaintiff is a Delaware corporation with its principle place of business located at 1170-Eighth Avenue, Bethlehem, Lehigh County, Pennsylvania. 2. Defendant Pavex, Inc., is a Pennsylvania corporation with its principle place of business located at 4400 Gettysburg Road, Camp Hill, Cumberland County, Pennsylvania. 3. Defendant Great American Insurance Companies is an Ohio corporation, licensed to do business in Pennsylvania, and further authorized to sell insurance in Pennsylvania; its principle place of business is located at 580 Walnut Street, Cincinnati, Hamilton County, Ohio 45202-3180. 4. On or about July 20, 1994, Structures Unlimited, Inc., issued Purchase Order No. 3377 for 147 pieces of structural steel to be manufactured by Plaintiff. Before shipping the order, Plaintiff verified that the steel was to be incorporated into noise barriers 1 .. . .. for the Pennsylvania Department of Transportation, York County Project No. SR1018, Sec. 002. 5. Structures Unlimited, Inc., filed for bankruptcy on January 19, 1995. 6. Plaintiff notified pavex, Inc., the general contractor on the above project, and Great American Insuran~e Companies, the bonding company on the above project, as required by law. A copy of the material sent by Plaintiff for notification, including evidence of the type of mailing, is attached hereto, collectively marked Exhibit "A," and incorporated herein by reference. 7. Plaintiff is owed $52,846.30, plus interest from October 25, 1994, as evidenced by Plaintiff's invoices, copies of which are attached hereto, collectively marked Exhibit "8," and incorporated herein by reference. 8. Pennsylvania law required, for this project, that pavex, Inc., provide payment security to guarantee payment to suppliers such as Plaintiff, who supplied materials in the prosecution of the work on Pavex's contract with the Commonwealth of Pennsylvania. 9. As a part of the contract with the Commonwealth of Pennsylvania, pavex, Inc., as principal and Defendant Great American Insurance Companies, as surety, executed a payment bond for the use and protection of all persons supplying labor and materials to Pavex, Inc., or to its sub-contractors and sub sub- contractors in the prosecution of the work provided for, in the aforesaid contract. Said payment bond provided, inter AliA, that 2 .. . .. every person supplying materials to the contractor or its subcontractors and sub sub-contractors in the prosecution of the work who has not been paid in full may sue on the surety's payment bond, prosecute the suit to final judgment and have execution thereon. A copy of said bond is attached hereto, marked Exhibit .C,. and incorporated herein by reference. 10. Structures unlimited, Inc. provided an integral portion of the work for Defendant pavex, on the project that is the subject of this action and, in so doing, Structures Unlimited required Plaintiff to specially paint and galvanize the steel, and to drill holes in the steel at every two-inch interval of such steel. 11. Despite Plaintiff's repeated demands for payment from Pavex, Inc., Pavex, Inc. has refused to make payment. 12. Plaintiff made formal demand for payment as required by said bond, to both Pavex and Great American Insurance Companies, fulfilling all conditions required by said bond in order to be entitled to payment pursuant thereto. A copy of the demand package is attached hereto, marked Exhibit "D," and incorporated herein by reference. 13. Plaintiff last sold materials on the project described herein on September 20, 1994, and billed for those materials with invoice dated September 21, 1994; Plaintiff was not paid for such materials within the first ninety (90) days from September 21, 1994, and has not been paid to date. 3 .. ... 13. Despite plaintiff's clear entitlement to payment, and Plaintiff's following of all conditions set forth in the payment bond, both Defendants have refused to tender payment to plaintiff of the balance due to Plaintiff. WHEREFORE, plaintiff requests this Honorable Court to enter judgment in its favor and against the Defendants, jointly and severally, for $52,846.30, plus interest from October 25, 1994, along with the costs of this action, and any other relief this Court deems appropriate. /-:;y- ~ Date KNUPP & KODAK, P.C. ~~ Attorney for plaintiff 407 North Front Street P. O. Box 11848 Harrisburg, PA 17108-1848 (717) 238-7151 Supreme Court I.D. #18041 4 j ,.~",,' ., ;~..' JRi 25 '96 011 Z8PM BETH STEEl. CREDIT P.2 '. . .. vazrlCl~IOll I, Kiehard O. Malterl, an Alli.tent 'Ic:eta~ of .ethlehea Iteel Corporation, am authorized to aake thi. verification OD 1~. behaU. I vuUy that the fact.. ..t. to~b in the attaohed pl.acUD; are true and correct to tbe b..t of my knowledge, information and belief. I.e .tate lubject to the penlltiel of 18 Pa. C... '4904 (rllltin; to un.worn faleilieation to autborlti..). Dati I ~'1 / 199'~ ~~i~"-J 10.0 . Ha el'l A.lietant Secret.ary '. , " ~..~ ',- ,HO. ..CHTH AYIlHUK BETHLEHEM, PA 11011.7111 nux: ...7417 FAX' 11101....3217 m..AHCE D'PAAT""HT ,1.1..''''0 J. "'..... COU.ICTIOH MAHolaU November 14, 1994 Mr. Barry G. Hoffman District Engineer Pennsylvania Department of Transportation Commonwealth. & For~ter Streets Harrisburg, PA 17120 REGISTERED MAIL Rc: PcnnDOT Noise Barrier Project York County SRIOl8 Sec. 002 Dear Mr. Hoffman: Enclosed is a copy of a NOTICE sent to your general contractor and the surety of the captioned project. Consider this as your fonnal notification as required by the statutes of the state. In addition 10 this notice. we are asking that you provide us with a copy of the PAYMENT BOND. Our infonnation indicates that a bond was provided by The Stricwig Bonding Agency with coverage by Great American Insurance. bond number 7571780 in the amount of $4,710,472. Thank you for your assistance in this matter. Sincerely, .... Alfred J. Massi Collection Manager ~ AJM .... EXHIBIT A ~ , . , " I\. . , l:l B - z - .., .. ~ a l:l III a III ~ II. .... 'G.....CI~N ....N "''''co co ... IE "O....NN ......... ......'" '" ... .... . .. . .. . . ... '" an"'CD~\G ......co "''''N N : '" C ItrGO~""CD Iftlll'" ........co co C ... ~ 'OtQr--NN ....'" NNIII III ... N .. OlIo .. ... .. . . . . . . . ~ ... co CD co co... ......'" ......N N Iii '" .... III III .....ll. ....... Z .... ClCCDIIl .....C U CI- ....: Ul .", ~ o\uf~ffiB I- IIl:U UlC Z:'" Ul:ll. :I-C UlUl .....1- : z 'CI'N\O '-0 CD ........ IIII11N N ti Ul IE II'tNO\U\N ......... ........N N 15 . . . . . .. . .. . . ... '" ..,..,,,,,....N Iftlll.. "'...... ... ~ C 'llI"\7'\7'''''''' ......... ......... '" U ... N N N I- III III ... '" DOlo\OV'lO ......... ......0 0 IE ,...NIlGccun "''''CD .......'" '" .... . .. . . '" m\7NNCO ....III 00'" ... C 011\1"010"'''' ......11I .......... ... ~ ,..."",...","" oClIn NNCD CD ...... ..... . . . . . . . COIDCDCO\1" ......'" ......N N '" .... III III U Z ... ll. ............ ... ... * W eacu:, 0 * 0** lil ClC ClClClO* 0** C** I\. I- ...z ... N ...'" % N W , ...... III U ..., "'W .. Z III zmo:... W NetN... ... .. C ..... "'.... U coootQ ... III ... 00 W ... \71tQ,....,... CD 0 C 0... ... IIIC cn...lD:< C 1JIl0l0V'0\ 0 '" ... CD W WI\. > ............. N N ... I- ClCWID Z 1.1 I I , I- ... I-U :I>Zct: ... 1il1"<a'I:I'oa' ... ... U '" =... ~....UJI- o ct cae:' 0 0 U 0 "'ClC UI-:'CC ..........,.. ... ... C ... 01- "'U ClC Q cae:, CI 0 0 ... UIIl o:c:co: U U'" I-Z\7'G.. \7t,;z'I8'oa' ... ... ~ , C" cn....""LL1 0\0\0\0\ ... ... EXHIBIT B I- W ...................... ... ... '" ~ f"'4U\\tun ... ... .. ..-4........... N N .. .. ...................... ... ... 'U IDCDCOCD CD ... .. ".-. 111.1.'....'.. ,. , .'. '~rtr.....t I,. tt,...,r...YMIIT....D;..,:...." .....,.tt.... to. ,., llll..... , ...t, . iel 0" ~"o" '_t.rel-into cnJ b.08IM....~"P.. ~'A.. \:'\I'~ \::l ~:~ i"l ,,"v.,..Il+ 'otH\t...la'.d. ."r. ft) t'Aft'at '.1 '''Iha -.f" ..,....'It; u,.... . "t.&;...._~iNaDTs;.."....,... In ...'..J",. ..'t~ ,.. ,"'C.il"" Ud.'ob~~do!'tt"t .... ,..' "r-l~, &~""rw'"" r'~."'l ,.. .")l........U~...",..... ' . ~ Mil, "eIlMV1Y11nl. UIU I... ~Rl..t:I~AL eaol IVItT ~,.,.......; Jor,.lly .nd oava,.'iy. ell' .". 11'IlIIlCINL, !laM" . '. . ,.,..,., . ;':.)" 0" cor,,~t:'Qr.. ......s.:... .......f.. ."........,.1"....,.,,,' 1~..n'&..,... ,". ~.., ". ,S)~CWA I II 'u,....r.~on. ~ Mm'...........l....'"'."...b JteaiHl.. tC ~~ fl- Ith ..f ....""""1.....,&8 -a.. ~ -.aU...,", 'IOj.-t ...,.....'..nu.......,..,. ....n twndr.d. hn ..MIlW....,.foll..:hutlllrM.weV*'.; I It _..~~. Ct_-4.lll,'472JU..::..:h '"l~l' "n.,...f~"".1 tM..~'..~ . to.... Hid to..the....U..tC__loth .~ lI--.vhi.,..; el'''''tUe& . to whlah H_ntr_1l .n" "NIp'h '....._...; ....,11<1 ea......,..' , . MI"., _.out......'Wt..i-fI&et,...,... ......._... ....I,jointlV.n4 ,I....,. ..v....lly. fi,...lv by t'-. ..r.ant.. .' .' . ft',. ~",.' " ,. ." 1:.1".' "I;l"'.t~... l!l'l.cf'l.'l.;;.'" " .....hd .wl th ..u... r raU". _1. 8n" _te4'>tht....:;I ....t'.f .... ,.......,..~., "I ..J.:". .\c-' t... '4.... .D""I'~.!' ,...,.... .' r "'r " .,. '.' \.> ,.. . . , ;' ... )'. .. ~." .' . NHIllUS, ,he ....". Munchn t1'lllltCrrAL .... ",,",.t.kan to oont,..ot with. tho ..iel C6_6Ilw..1th of 'lInftlIVIY8ni., by .n" thrau.h t......o~.t.,.V of Tr.ne~or..tl'ft'a.9.rlftg~.-.rk ldentlfl.d bolow f.r'.~proxi..t.1V ~'.ua'o':~.ur~ili.n a.v.n ....",d,.o" t... 'thou_n' fovr -hun'..od .......tv-two....d..'/UO cIoU.". U_4,7U..72.U_t. . ", ' .. .. ....,. ,. '., " '. . . ".r~". l_,.rov.__\ ,.40 . ..,...1.. .....1_... sT"tl!..~IlOltNAy In YOIlK COUNTY. 'A..-teW TOHII'HI". C__Uh 0' P'.nnavlnnlll,ITATE ROUTE 1011 SECTION 002. 'hle-prajoct i. .Uuet" j...t .outh .,..tho.boroullh .f H_ CU1eb.rl.nd froo station 15.+29..1 (5......t 0010 O'f.ot'OOOl) to Station 205+43.9' (500-.nt 0020 O'f..t 2J44). Tho.w.rk oOftDl.ta 0' tho oonatruotlan of. conn octo" ro.d with tho D.f..... Dlatributlon ...ion ...t, 'ncludlng noi.o ba"ri.,.., .11 within .n ov."oll project l.ngth of 4,'1~.11 t.ot CO.'74 .11.) .. i....I~.t.d on ~h. d".winD..ppro"od Nov..b." 22, 1.93. ond MHEREAS, it NO. ano of tho oondition. .f the .ward a' tho S.O".t.ry of Tr.n.po"t.ti.n, .ctlng fa,. .nd on bohalf of tho Co~on- wealth 0' P'annoyl"ani.. pu".uont to which ..Id oont".et wo. und.rt.k.n ~ the P'RIHCIP'AL that t~. ..r...nto .hould by .x.cutod. ta b.eoo. binll1nll u~on tho dot. ..id eantr.ct i. .pp"av.d for tho Offio. of, tho .u....t. by the Cooptrollo,.. ~, THeREFOR!, Th. conditton of thi. obligation i. ouch that if the ~bo.,. ho;.i.dei\-PRINCIPU'....11. .nd' will p"o~Uy or o.u..-to' ...-.- ~t.tJ::.t'llL.U'.-v.-." .f' _noy whioh' _vb. duo by 'contracto,,(o;','" . (ot".r>lia.,.,'to ..;; in..i'';;idui.i.' fir.., ;..rtn.".hip; ..ooeiotion,' '0,.-' "~' ~,D!"'tl'an. for ..1 _t."h1. fUNlhhod 0" labor .uppU.d 0" --....-...--..-.,. -... . . 121281'9 oS 35 ~c ~nt'~~. T~.~L". ~".A7TL'~nYrRACT) EXHIBIT C ..... . ~~.~ .Jn~tt.t.._...cuthll .f the 'Work, =~ .,. n.t the ~ _t.;.A.l -'r: ~!I1l0,. _~~!:ed in~~ _.,," _~~_~!I" 0 n.n~,..t'~of-the-...~ .n-"~-!!!!~. o.nt~l~t..!.II" ,'0,. ~~~l,!.f.,~ .""l...iiit'.u....d-.Ii"d ~A'" ron..r."!Iv public utSIStl.. 111}",.'ift'cDftneotton'wi'th, th.' O" ....uts.n .f .uch woril., \I\.n thb ..,11..th" to ... vold, .th./"Wi.. '~...-S" ,,, fvll 'f.re. ."d 'ff'.,t. .~; ':'Yh. '1t11lC11'Al .nd SUIlETY herelw, hlntlv .nd ...._lIv, 0'"'' tlttfl the 01111... heraSII thd ony '"dhi"'l, ft..., !...rt",Mthl~. ._.l.th" .,. G....orota.II' Mhith helo ......."lOd .-'aMr '1' .#UNltohod ,_te,.hl 'n ,he ..,.o..outhn of the work .....r.vl...d....ftlI,.nv..-Uc dlUb ""lch .... """..,.d .......10.. in, _linloa""~lI;~ttt,~ ,......cutson .f evoh wril., -anti Mhloh he. oot ....., ,.1.. .Ion fIIl1.ther.- t.r....v _in ...,.,at.'" thl. "'_1 tohilAn 'flI,.'~:tM1~4 _ .... .nd _v."........ ..... -- t. .,...1 ;1..4_. .... ... _ .. ..v bo :lUDtlv ttu. hi.., tt-, '1' it, ond haY' oxoouU_ - ' etI, .. '"ovlded, h_v.r, tllat the Co..on",..Uh ...11 not... 11 or the ,.._nt .f.ny,...t..r ....,....... .f au." aldt. . ---...., . k.oov.1'V bv .nv i"divSdu.I, fi,.., ,.,.tno,..hSp, ....oi.tlon '1' oorpo,..tSon her.und.,. .hall b. oub;joct t. the provl.i.na of the 'Publlc "ork. Cont,..cto,..' lond l.w of l"70, Act No. 31'. .pprDv.d D.o..b.,. 20. 1"7, '.l. .", which Aot ohall b. lncD,..o,..t.d he,..in .nd ..d. . pe,.t h.r.of, .0 fullv ond o~l.t.lv .. though It. p,.o- vi.l.n. 101'1" fullv ond ot l.ngth ",,..In reclted. It I. furth.r provided that .nv .It.retlona whlch ..v b. ..d. ln the t.r.. of the cont,..ot or ln the work t. b. dDn. or ..t.rS.I. tD b. furnl.h.d Dr I.bo,. to b. .uppli.d 0,. p'I'for..d unde,. lt Dr the alvlno bv the Co"oRW.olth of .nv aKtanoi.n of tl.. fDr tho p.rfDraanc. of the cont,..ot Dr .nv otha,. f.,.~rano. on the port of .1 th.,. the Co..on",..lth Dr the PRINCIPAL tD the Dth.,., .hell nDt in .nv wav r.l.... the PRINCII'Al .nd tho SUR~TY .,. SURETIeS 0" .Ith.r 0,. .ny Df t~.~, th.ir h.i,... .x.outDr.. ....lnl.tr.tol'O' .uca...o,.. 0,. ...Sana ,,.. th.ir li.bllity h.r.und.r. n.tic. to tho SUR!TY or SURETIES Df eftV .uch .It.rotion. exten.iDn, or f~rb~r."c. boinv her.bv waiv.d. IN WITNESS HHER~OF. the ..ld PRINCIPAL .nd SURETY hay. dulv .x.cut.d thlo lond und.,. ...1 tho day .nd v..r ~lr.t .bov. writt.n. '.... .~ 12/28/93 36 CHS.D931zza.T23260a.coe4Z76CCONTRACTI fEtHi[IOT ((1/1'" TF'lILT IOtl TEL:71;'-l72-05~;' I-luv 1.1.::' ';1:. 1 :.; 1. 1 IIU .1.11., J I" .1.1... , ' ," I.. . . .' ;'" , 'ave)(, Inc. I. .A~ IJ ......v. ',"" I', " "". 0.. ....ft. , H.... .......~~.. t'.'''' C-"roa....."'" . ~~"=\,~""'-"" -!."";~,.(",,,,(,,~ <:.:!':.~,~)\)..~. Suraty Coapany '\ c..... Au..t 'v c-- ~:i~~/dr-- .(S..I) :\ ~.~ .y-in-Fact. , \ ~, "S...I,;, l; '~\)V\~, ~,,, Attornay-in-Faot Cartification -----..----------------------- NTha underaian.d attornay-1n-fact bv exacuting thi. Pa~.nt lond carti,'aa that he/aha ia lican..d with the company namad aa auratv for thia bond by the 'annavlvania lnauranc. Dapart~ant and that to tha b.at of hia/har knowlad.a tha ..id auraty ia lic.na.d with the '.nn.vlv.nia Inauranca D.partaent. f INSTRUCTIOHS _ Pi.... aian wh.r. indicatad (C--). If corporation. aign bv 'r..idant or Vic. pr..ident and att.at by S.crat.ry or Tr..aurar. Affil< ...1. If P.rtnarahip, .ion bv ..ch partn.r and witn... .ian.tur. of ..ch partnar. If Individu.l. aian by' propriator and witn.... Indic.te auratV C08p.nv. aion by attorn.v- in-fact (PA lic.n..d R..idant Aoant Only), cbt.in wi tn... aian.tur.. affix auratv companY'a ...1. Attach Powar of Attorn.v. with '~bo..ad a..l. to t"i. p.o., 121ze/93 37 CHS.D9~lzza.T232'oa.coa4276(COHTRACT) ~ Idll /lIU I '. UfoI': I ~'l". I I UH . I i:.L : I! ,'-I 1"';-'.1;" ,-" ill.} ~. .. l I . '-' . '.",. ,.. '.' .' '. "- .. '" , , \ . . .. GtEAT ~ INSURANCE COMA\NY 11110 WALNUT stREET. CINCINNATI. OHIO 411202 01113.3118.6000 0 FAX 1113,723.2740 Th. numbor 0' pc"o", .u,ho,i',ed by Ihl' pOVtcr or IIICI,ney is nOI mo,c chin 'l'HREE No. U 15167 POWER OF ATTORNEY KNOW ALL MEN IV TlU:st: PRESENTS: Th.llh. GREAT AMERICAN INSURANCF. COMPANY.. co'por.'io. or..nilld .nd exllll., under .nd by vi"uc 01 ,h. 1.10' o',h. 511I. o'Ohio, doc. h.tcby nom'n.,., conllilulI.nd appoinllh. pcnon or p.non. nam.d b.low ," "ue .nd la"'ul.llornoy.ln.'.." ror i,.nd In ill n.me. pl..o.nd "Cld 10 eleeulo in bohall or Ih. .aid Compony,.. .ur.'y. onr .nd.1/ bond.. undm.kin" .nd .onlt.ell a' ,ulCly.hip. 0' olher wrillen obli'llion. in Ih. n.IUIl th.roo'; provid.d ,hallh.,i.bi,hy 0' Ihe "l~ Company un .ny lu.h bond. und./IIkln. 0' eonlt.ct 01 .urcty.hlp ..eeul.d under Ihi. .ulhority .hall "01 ...o.d Ih. limilll.led bel.... . Nam. Add.... Llmll or Power IQJERr N. STRnJoIIG,-JR. !OBERT N. S'l'RnMG PAMEtA s. BEm'Z ALL (E CI\Ml' HIUo, PEHolS'iLV7\NIA ALL UolLIMITm Thll Pow.r or A"orn.r ,.vok.. all previous pO"Or1 illu.d in beh.1I or Ih. .lIorn'rl./.in"a" nom.d 'bov.. IN WITNESS WHEREOFlheGREAT AMERICAN INSURANCECOMPANV hu......d ,h... p....nu 10 be IIln.d.nd .I'.II.d br ill approp"a" olne.n 'n~ ill cO'pO'.I. .eal hot.un'o .rn.ed Ihi. . 7th d.yor May . 19 93 AIIOlI ORE"T AMERICAN INSURANCE COMPANY r , . ~. " .' . ~ , , , STATE Uf' OHIO. COUNTY OF HAMILToN - u: j OnlhlS 7th d.).r MI1y, 1993 . be'o,. m. personally .pp..r.d GARY T DUNBAR. 10 m. 1no"'". beln. duly sworn. dCPOlCS and 1.1)'& thl' he reaided in CincinnQli. Ohio.lhat he is 'he Presidenl of .he Bond 0lvI510n 01 Crnl AmtllC'Mn InSUflnceComplnY.lhe Companyde5cribed In and whichueCUlcd Ihe above inSlrumenl; Ihal he knows Iht,ul; Ih1111 Win 50 "r'lud by IUlhnm~ or hi. offi.o under Iho 8y.Laws 0' Ilid Company. lnd Ih.1 hr .iln.d hi. n.mo Ihml. by Ill. .ulho,io). '. h4....j:t::;:r' u':f..x:Ioj:F,:: "'''''7'''~'~'':'~.~ ." """ k:. c...'Y.':"J,.:.~,..... UP-.l.... N~ .~...;. 1~ , . I .. /. ..: ...~A.:._ .. .. .'\.\.... ...1.... '. Thl' Power or Allorney is .ranted by authority or .he rollowins resolutions Ida pi cd by Ihe 80a"J or DircclUf' of (JruI AmcricJn Insur.nc. Company by unanimous wrill.n con..n' dated M.rch I, 1993. RESOL VED: Tholl ,h~ Divillo;; Pr~sidrnt. the JrwI./ DiviJion Vicc Plesident' .nd ~u;ft..m \',ce' PttsiJrn". ot.n.~"Jnr ltfthtm. hr and ht~bY II ,ulhOliltd. (,aM time 10 timC'. '0 ill'I'Olnt onC' or morc' A,tolnt)'s.ln.Fllc, to tK.tC'u't on "thalf tJfthc ('omr.n).. IIJ JUftt.t', ~n.v "nel.a/l .bondJ. uddttt,km,J and tOnU'CII (If JUlttyrhi". t" olher written ohli,,,ionJ in Iht ",,'utt ,hut.J!. '0 pttStf,~ .hcII rtlptl''''.-C dUI,tl IInd ,he ftlptttfVt limil$ o( the" authori',: .and '(I rn'o!t .lnr sueh appointment" .ny "mt. . RESOL VEl> FUR THER: Thlt ,hr Comp.ny Inl And Ihr ji,,,,,ulc of .In)' of ,ht ~/cJrrt.,d ""'~CfS ~nd Iny ,t;rtltl.lT.' nl AUW4nt StCfttuy (If 'he Comp,n.r m.ay be ~fnJltd b)' facsim,lt '0 any poltcr of ."ornty or rut"';c~'t of ti,htr J:".ttt fnr ,hI t'.tt'(lIt,(ln lJllln..' bond. undtrldin,. contrlct or Juft'y,hip. oro,htr wri"cn obli,"iun in the na".I" Ihtrtor. juch Ji,nAtlJlt .nrJ It.ll whrn", u)cd bt"'l~ hcrtli.,. .dnph:d b.\' Ihe Campan..".ar tht ~ri,in.' si,,,.,u1C of such ol'(;(c( .anti ,hr Ollti"., UJI ollhr Ctlmp.ny. '(I tJt .'al,,1 .nd blOdin; upon ,ht C,lmI'Un.,' ....,.'h ,hr Umt fOfrt "nd tllttl ~s Ihnu,h ma"ulI/{\' "fliArd. CERTIFICA TION I. RONAl.D C. IIA YES. Aniuanl SCCtCU.f) or (;,(WI ArncfI,,'.n 'n'",.nce C'nmplfI). do hClcb:- ":C'lI(ylll.lI lhr hHCt.OIR& I'n\lfr, of Allflrnr) .nd Ihr RrtalLlflans nl the- OOJld of Oirtl:tors 1,)( ~hrch I. ItW.' hll\lf nOl been fr'''n~cd .1l1d 31t oow in full Im&..C' ~nd dlef". Signed and \calc,", Ihl\ \ ~ \ ~., or ~ <0:.'\)" ,~<:~, ~"qq~\ -', , ,. . .,\, .:~~._~ -..- ._--_.~, ----- "70 EIOhlh Av.nu. GETHLEHEM. PA '10'1.7'" "NANCI DI~A"TMIHT C.U" 01""10" T....., ".'.1' 'A.: 1.IDI.....Un Octobcr 20, 1994 Pavex; Inc. 4400 Gettysburg Road Camp Hill, PA 17011 REGISTERED MAIL Gentlemen: Rc: PennDOT Noise Barrier Job York County, PA SRIOl8 Sec. 002 NOTICE We hereby notify you that Bethlehem Steel Corporation, having an address at 1170 Eighth Avenue, Bethlehem, PA 18016, furnished structural steel to your subcontractor, Structures Unlimited, Inc., 440 Wenger Drive, Ephrata, PA 17522 for incorporation into the above referenced project lII!~ has not received payment for this material. Structures Unlimited, Inc. is indebted to Bethlehem for this material for a total amount of S52,846.30. This notice is furnished under the provisions of the Pennsylvania statutes covering bonds on public improvements. Sincerely, R. C. Hoffeld Credit Representative RCH:pk cc: Great American Insurance Co. c/o Striewig Bonding Agency P.O. Box 161 Camp Hill, PA 17001-0161 REGISTERED MAIL Structures Unlimited, Inc. 440 Wenger Drive Ephrata, P A 17522 D Stratton - Baltimore 'EXHIBIT D '.' 'T, ,.' ". .... .' . .~ ....-;0 '. ::-^,."".", ~"":,,'\,,',! . . . t " .,... ~. ., "'" BETHLEHEM STEEL CORPORATION, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUHTY, PENNSYLVANIA NO. 95-7148 civil Term CIVIL ACTION - LAW v. PAVEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendants CBRTIFICATB OF SBRVICB I, Robert D. Kodak, Attorney for plaintiff, hereby certify that I have served the First Amended Complaint by placing a copy of same in the united States mail, first class, postage pre-paid addressed as follows: Samuel L. Andes Attorney at Law 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 KNUPP & KODAK, P.C. obert D. a Attorney for Plaintiff 407 North Front Street P. O. 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" ./: ;~~'i~}~~.}~-(i:~~!il~r:~;__~>'~:;":" ,..._ 0,"" :-~~~!ii~t 7,~:", , , .,-';", i""-'" "/ ~ ~ ~ ! is n~ ~ dill E I E III l~ lU .ig i!la J ~i I ~ I ~ III ',~'",.., I a;.! I ~' ~8 i I ; ~ lil!ll N ,i i I;~~!I i~i~ ... '" . ~;~~tl:a !f Ii!:a-, f.~~!!1~ ~~ Ii! ,~ i! ~ 1S 11 15 .. '. . ~, . ,~ .... tr .. ~... . v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-7148 Civil Term BETHLEHEM STEEL CORPORATION, plaintiff PAVEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendants CIVIL ACTION - LAW APPIDAVIT OP ROBERT D. KODAK. ESOUIRE Robert D. Kodak, Esquire, being duly sworn, deposes and says as follows: 1. I am licensed as an attorney by the Supreme Court of pennsylvania. 2. I represent Plaintiff, Bethlehem Steel, in the captioned proceeding. 3. Prior to institution of this proceeding, it came to my attention that Structures Unlimited, Inc., the party whose role is at issue in the captioned case, sought protection under the United States Bankruptcy Code, and, to the best of my knowledge, is not now a going concern. 4. I have inquired of several personnel of my client, and have also attempted some investigation on my own, to locate former employees of Structures Unlimited who were involved in the transaction that is the subject of this lawsuit. 5. To date, I have not been able to locate any of Structures' former employees. 6. I have been a~tempting to locate these employees because they would probably be able to provide additional information regarding the tasks that Structures needed to undertake to prepare the steel beams for the PENDOT construction project that is the subject of this case, and because they may be able to refute some of the assertions made by William H. Lindeman, Jr., in his deposition. FURTHER, YOUR AFFIANT SAYETH NOT. Z/1/97 Date { I ",.....,;.".--:':-'_.;...:'~"..;;;.' <"'hr"""" '. COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF DAUPHIN . . Sworn and subscribed before me this -3,w day of fu:a(~1 , 1997. (SEAL) My commissions expires: Not.ri.1 Se.1 Bonnie Jo Hull, Notary P,'~11c H.rrisburg, D.uphin Coun:y My Commission E'plres J.n, 14, 1999 1.1an1Jcr, Pcnns', 'Mlri.1 Asr.od.1li:ln of t'.:Qt",.l:OS .... - 1,-, c::. t.~;. j::- .' ", .~ w( - <.Ji i :~; ~i c;: : .~ ':-J . '.~ ~l C") ~ ;-:) L I .- ~; ;.; - l1 r:- "j ;7j [C. t...! ~"1 r..L I" ~ u,_ r- ::3 (.) 0' (.) . . BETHLEHEM STEEL, Plaintiff ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW vs. PA VEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendant NO. 95-7148 CIVIL TERM MOTION FOR SUMMARY JUDGMENT AND NOW come the Defendants, by their attorney Samuel L. Andes, and move the Court for Summary Judgment, pursuant to Pa. R.C.P. No. 1035, based upon the following: I. The moving parties herein are the Defendants. The responding party is the Plaintiff. 2. Plaintit'rs action is based solely upon a payment bond issued by the Defendant, Great American Insurance Companies, as surety, and on behalf of Pavex, Inc., as the principal, which said bond is attached to Plaintit'rs Complaint and marked as Exhibit C, in which said bond was issued pursuant to, and is controlled by the provisions of the Pennsylvania Public Works Contractors' Bond Law of 1967 (8 Pa. C.S.A. No. 191 et ceq.) 3. The bond in question, and the claim on that bond made by Plaintiff, arise out of a highway construction project undertaken by Pavex, Inc. for the Pennsylvania Depamnent of Transportation, which project involved the construction of a state highway in Fairview Township, York County, Pennsylvania, which is identified as State Route 1018, Section 002 (hereinafter, the "Project"). 4. Plaintiff had no dealings with either of the Defendants, either direct or indirect, with regard to the Project. 5. Plaintiff had no contract, written or oral, with either of the Defendants relating to the Project. 6. Plaintit'rs only contact with the Project was its sale and delivery of generic steel beams and material to Structures Unlimited, Inc. ",....'''_c~<,\.,i::.':..''''~~.,...::;;:: " '. ...~t,."" . . ~,\j~~"'j:",-"",,~ , ...,- . . " ". ., 7. Structures Unlimited. Inc. was a supplier or materialman who, pursuant to a written contract with Pavex, supplied certain steel components to Pavex, Inc, which Pavex. Inc., then installed or erected on the Project. 8. Neither Plaintiff nor Structures Unlimited ever had any presence on the site of the Project, ever supplied workmen or did any work on the site of the Project, or had any other direct connection to the Project. 9. Structures Unlimited was a mere materialman or supplier and was never a sub contractor as defined by law. 10. Plaintiff, as a supplier to a supplier or materialman has no right to claim under the bond issued by the Defendants, as surety and principal, for the Project. 11. Defendants have no liability to Plaintiff, under the said bond or otherwise. 12. There is no factual dispute in this matter and the case can be decided entirely by the law. 13. Defendants are entitled to Summary Judgment to dispose of this matter at this time. WHEREFORE, Defendants pray this Court to enter Summary Judgment in their favor in this matter and to dismiss the Complaint of Plaintiff. c~-..~- :s I L. Andes Attorney for Defendants Supreme Court ID 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 f;; c. :- ,.-;, , n ~( " ~, 8 :},,= ~F ':-.( ,j~ oCr! ':~ ~[ cr, ~ 'v') I " Ul~ " . rL!\' '-",* L "N r~ I> .,'}~ '-" l ~. ,-" *:.; v en (J ~ qS"1/1.j9 READING AND SIGNING OF DEPOSITION . , To be attached to the deposition of October 9, 1996 William H. Lindermn, Jr. Helena L. Bowes by reporter taken on in the matter of Bethlehem Steel V5 Pavex, Inc. PAGE 2:.1 1.. CHANGE OR CORRECTION Wrz. 0 -\-nlZ Znd i +0 ~hevlt I have Inspected and read my deposition as captioned above and have listed all changes and corrections ",,0.... .0" wilh my .....0"' _. .. . S'r Date: \\ /OS/qlo Signature:ld iOO'^~J{l ~A"~^\"': ORIGINAL' I'J J ,- BETHLEHEM STEEL CORPORATION: PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION- LAW NO. 95-7148 CIVIL TERM PAVEK, INC., AND GREAT AMERICAN INSURANCE COMPANIES, DEFENDANTS DEPOSITION OF: DAVID D. STRATTON TAKEN BY: DEFENDANTS BEFORE: TAMMY J. BAKER, REPORTER NOTARY PUBLIC o. DATE: SEPTEMBER 6, 1996. 2:40 P.M. PLACE: ANDES, VAUGHN & BANGS 525 NORTH 12TH STREET LEMOYNE, PENNSYLVANIA APPEARANCES: ('"1 _0 0 F 0' -1I - ,,:c' .'- ::;J KNUPP & KODAK, P.C. nl;': 0 li~ -,.- '- BY: ROBERT D. KODAK, ESQUIRE ~~ .,~ 61~. to) 'j FOR - PLAINTIFF 2t. c') .- ." C~ ,- .:;r. ::.!: c:.{ ANDES, VAUGHN & BANGS :~( - <, J'"" BY: SAMUEL L. ANDES, ESQUIRE ~-. .. s:. ..~- => '" FOR - DEFENDANTS ~ 0 ~ v" Hujres, 7l16righi, 'hill irJVat4le :Reporting Seriiu, 8nc. 115 PINE STREET. HARRISBURG, PA 17101 Herrlsburg 717,232,5844 Fe, 717,232.9837 Lenees'er 717,393,5101 2 0 1 2 NAME 3 DAVID D. STRATTON 4 BY: MR. ANDES 5 BY: MR. KODAK 6 7 8 9 10 11 12 'J 13 WITNESS DIRECT CROSS REDIRECT RECROSS 3 37 32 EXHIBITS 14 STRATTON DEPOSITION EXHIBIT PRODUCED AND MARKED 15 1- MEMO DATED 6/26/96 10 16 2. PURCHASE ORDER 11 17 3. PURCHASE ORDER 16 18 4. TERMS AND CONDITIONS 16 19 5. MEMO DATED 5/26/94 37 20 6. PURCHASE ORDER 37 21 22 23 24 -J 25 .....,'. o J 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and that all objections except as to the form of the question are reserved to the time of trial. DAVID D. STRATTON, called as a witness, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ANDES: Q When we talk casually about these usual stipulations, one of the rights you have when you are deposed, Mr. Stratton. is to read the transcript to make sure it accurately reflects what you said. If you are satisfied that she will transcribe it accurately we can dispense with that? A Okay. Q My name is Samuel Andes, I'm an attorney and you are here at my office. It's a Friday afternoon, I've already made you wait 15 or 20 minutes, I apologize for that. Have you ever been deposed before, sir? A No, sir, I have not. Q What's your name and your business address for 4 ,") "'<<<....r 1 the record? 2 A My name is David D Stratton, S-t-r-a-t-t-o-n. My 3 business address is 6 North Park Drive, Suite 105, Hunt 4 Valley, Maryland, 21030, I believe. . 5 Q How old are you, Mr. Stratton? 6 A Sixty-three. 7 Q I asked you earlier, you said you have not been 8 deposed before. Let me give you a couple of ground rules 9 and then if we have any problems with them we can iron those 10 out in advance. 11 You're under oath. I'm going to ask you :) 12 questions. If you don't understand the question, tell me 13 that and I'll clarify it. 14 A Okay. 15 Q If I cut you off before you finish your answer 16 completely or if later you think of information which you 17 want to use to supplement a prior answer, tell me and I'll 18 give you the chance to do that? 19 We're not in a court of law now and we are not 20 trying to impress jurors, we are trying to get information. 21 It's somewhat informal, so if you have questions let me 22 know. 23 A I will. 24 Q You are here with your company's attorney, Mr. --/ 25 Kodak, and certainly between the two of us if any questions 5 ~) 1 or problems arise Mr. Kodak can probably iron them out. 2 A Okay. That's fine. I don't think I know enough 3 to ask questions. 4 Q You are employed by Bethlehem Steel Corporation? 5 A Correct. 6 Q How long have you been employed by them? 7 A 41 years, 2 months and one day. 8 Q Are you perhaps getting near retirement that you 9 know that so exactly? 10 A I just happen to know that. I was thinking about 11 it earlier today. 12 Q What is your position now? 13 A Perhaps the best description would be sales 14 representative. The title is account manager. 15 Q How long have you held the position of account 16 manager? 17 A That is a fairly recent title, perhaps two years 18 old. I'm not even certain. The job, however, I've been on 19 the road, so to speak, in the district sales offices since 20 the fall of 1959. 21 Q Okay. Would you say basically although the title 22 was different your duties and responsibilities were much the 23 same in the prior position? 24 A Very much the same. 25 Q And without going into a lot of unnecessary o ~ 6 ~\ , 1 detail, can you tell me what those duties are or what you 2 basically do for Bethlehem Steel? 3 A I'm in field sales, the traveling salesman if you 4 will, contacting customers and soliciting business for 5 Bethlehem Steel; hopefully making a dollar for Bethlehem 6 Steel. 7 Q And what, in particular, what -- are you a 8 salesman for any particular department or division of 9 Bethlehem Steel? 10 A No. Our setup has generally been that 11 salespeople in the district offices sell all products. o 12 There are some exceptions to that in this day and age. 13 I don't handle tin plate, as an example, that 14 American Can or someone would buy; nor do I handle railroad 15 products or large diameter pipe such as we produce over here 16 across the river. 17 Q That would include various types of structural 18 steel? 19 A Yes, it would. 20 Q Okay. I don't know if you know much about this 21 case, but Bethlehem Steel, your employer, has sued my 22 client, Pavex, Incorporated, and its bonding company, Great 23 American Insurance to be paid for materials it supplied on a 24 project on which Bethlehem Steel was a contractor and ~ 25 Structures Unlimited supplied certain material or services. ") 6 7 8 9 10 11 --.." 12 -...J 13 14 15 16 17 18 ...) 7 1 00 you know anything about that job? 2 I think I have heard that it was a PennDOT job, I A 3 think in northern York County, perhaps Exit 18 of the 4 Turnpike, 83 and the Turnpike. I believe it's in that 5 neighborhood. Q Okay. A I know nothing more than that about that. Q It has been identified by my client as the Defense Distribution connector road, Section 002 and it was, you're correct, for the Pennsylvania Department of Transportation. Are you familiar with that job at all in terms of have you ever been to the job site? A No, I have not. Q Are you familiar with it in that you were responsible for the sale of Bethlehem Steel products that were used on this job? A I did not participate in the sale in this 19 instance. My territory includes Ephrata, Lancaster County. 20 At times I have called on Structures Unlimited, not 21 frequently, and not -- maybe once in the last five years or 22 so that I've been there. 23 I think the purchase order we received was from a 24 Tom Stokes whom I have never met, never talked with. 25 00 you know whether Bethlehem Steel had a Q '1 c--.. J ...) 8 1 salesman that worked on this job at all? 2 A A salesman -- if you're defining salesman as my 3 job; no, there was no one else. It was handled through 4 customer service people in the Bethlehem plant. 5 Q Now, I don't know much about ordering steel, but 6 if a company -- strike that. 7 Before I even get into that, do you know what B Structures Unlimited did, what type of company it was? 9 A The familiarity that I have with Structures 10 Unlimited is basically they did the overhead sign work such 11 as you see along interstate highways, the Turnpike, what 12 have you, generally involving the tubular section, pipe, 13 that type of thing, which we have never furnished to them. 14 In connection with that there may be some 15 structural steel used. 15 to 20 years ago I guess was my 16 first involvement with them and we had a rather sizeable 17 order from them, as I recall; going on memory. 18 In this instance somewhere along the line I've 19 heard this was not for an overhead sign type application, 20 however, that this might have been driven into the ground 21 and used in connection with a sound barrier or something. 22 Q You have been told that by other people? By other people and quite frankly I cannot 23 A 24 remember by whom. 25 Q In the hierarchy of Bethlehem Steel, to whom do 9 ) ...) 1 you report? 2 A I report to the district manager of the Baltimore 3 sales district. 4 Q How large an area does the Baltimore sales 5 district cover? 6 A Central Pennsylvania, going up as far as Lycoming 7 and Clinton Counties. 8 Q In other words it covers Lancaster, Lebanon, 9 Dauphin, Cumberland, York Counties? 10 A Adams, Lancaster. Most, if not all of Maryland, 11 a little bit of northern Virginia and I think a little bit 12 of Delaware. 13 Q Where was Structures Unlimited located, where 14 were their offices? 15 A Ephrata, Pennsylvania. 16 Q Okay. In the normal course of operations in the 17 sales operations at Bethlehem Steel, a customer could place 18 an order through you, but if you weren't available or if it 19 had no contact with a salesman and it wanted to buy a steel 20 product, how would it go about placing an order? How could 21 it go about? 22 A Probably starting with a telephone call, I'm 23 assuming, to an 800 number where the customer service people 24 are located. That then might be followed up by a faxed 25 order which apparently was the case here. ~ -:) 1 10 This, I believe, is what came from Tom Stokes, 2 faxed to that number, to a gentleman -- one of our customer 3 service reps, Andrew Kametz. 4 5 placed? 6 7 8 9 Q So as far as you know that's how this order was A To the best of my knowledge, yes. Q Okay. A That's how that happened. 10 look at all of these? Q You've given us some documents. 00 you mind if I 11 12 A Not at all. ') '''"-' 13 Stratton Exhibit No.1.) (Memo dated June 26, 1994 produced and marked 14 BY MR. ANDES: 15 Q I'm going to show you a document marked Stratton 16 No.1, which purports to be a memo or appears to be a memo 17 from Bob Dietrich to you dated the 26th of June, is that 18 correct? 19 20 four pages. 21 22 23 24 c.....) A That's correct. At my request he faxed me these Q Okay. And Mr. Dietrich's position is what? A He is a collection manager. Q What prompted you to request these documents? A He had contacted me and advised me that I had 25 been appointed as our witness. ,..,.,.,'.;, 11 1 1 Q A As the corporate representative? As our corporate representative to work with Bob 2 3 Kodak on this particular caae. 5 Q A And in response you said send me some documents? Send me what you have, because I had previously 4 6 explained this to Bob, once an order is shipped, it's taken 7 out of our computer system, data system, roughly 90 days 8 after completion. 9 This order, I believe, was shipped two years ago 10 or more and there was just no way I could retrieve anything 11 at all. 12 Q Okay. I'm going to show you a document marked '""" -...J 13 Stratton 2 which, I assume, was the second page of that fax 14 transmission that you got? 15 Purchase Order produced and marked Stratton 16 Exhibit No.2.) 17 THE WITNESS: Correct. 18 BY MR. ANDES: 19 Q What is that, if you could tell me? 20 A This appears to me to be the purchase order 21 initially sent to us by Tom Stokes of Structures Unlimited 22 on the 20th of July, 1994. 23 0 So that would have been the document with which 24 Structures Unlimi ted initiated this order? J 25 A I believe that would be correct. '-'<' ~;'--;", 12 ) -; 1 o It may have been preceded by conversations on the 2 phone or whatever, but this is the actual order, please 3 supply this material to us, et cetera? 4 A I don't think Structures Unlimited would have any 5 way of knowing that Andrew Kametz, as an example, would have 6 been the person who would be entering and following the 7 order; so I assume there was a phone conversation. 8 o And this, as far as I can see, does not contain 9 any pricing information? 10 A Yeah, it does. 11 Q Oh, it does? Can you show me where that is, 12 point that out? A That appears to be in Mr. Stoke's handwriting. :> 13 14 Price quoted was 19.50 on stock lengths and there are two 15 definitions for stock lengths. I'm reading upside down. 16 Q I understand. 19.75 on C/L? 17 A On cut link, if you will. 18 Q Then down below there's circled 135 ton? 19 A That would be the approximate weight of that 20 material. 21 Q All right. So that would be the pricing 22 information and above that would be a description of what's 23 required? 24 A That's correct, for that particular project. ....) 25 Q Can you tell me what all that means? There's a ~ . v 13 1 number, melted and MFO I guess means manufactured in USA, 2 all domestic material with mill certs. What's that mean? 3 A A certification from us stating this material was 4 melted and milled in the United States of America, which I 5 think would be a requirement on a Pennsylvania Department of 6 Transportation job. 7 0 Beneath that it says W. 10 X 49? 8 A That refers to a specific wide flange section 9 which is approximately 10 inches deep and in this case about 10 10 inches wide and weighs 49 pounds per ton. 11 Q Over on the right I assume it's much the same 12 only a 12 inch flange and it weighs about -- 13 A 12 inch wide flange and 12 inch depth 14 approximately and 58 pounds per foot. 15 0 The copy I have has some pencil notations on it. 16 00 you know what they are? 17 A Some of those are mine. 18 0 They were not on the original apparently? 19 A No. These are mine, my notes, if you will. 20 In fact, what I had determined from my marketing 21 people in Bethlehem is that -- we do maintain a warehouse, 22 if you will, in the Bethlehem plant, stocking material, in 23 lengths. 24 In this particular section, we stock 35 feet 25 long, 40, 42 and a half, 50 and 60; and in this section we ~ ~ ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stock 40 feet long, 50 feet and 60 feet. Q So that's information you determined later that you made a note of so that you would remember it for a deposition, for example? A That's correct. I didn't know that this document was going to become a part of this. Q All right. Then it has a number and a length? A That would be a length in feet. o Okay. So for instance. Reading across the first line there were to be four of these 10 inch flange units 33 feet long, two 31 feet long et cetera, et cetera? A Correct. Q That much I can understand. MR. KODAK: Off the record a second. (Discussion held off the record.) BY MR. ANDES: Q And there are some totals. The total number of pieces and I guess the total feel of length? A That's correct. Q And the pricing information we discussed before. What's this way down in the lower left-hand corner? A Zone is a geographic location. I don't know whether that's peculiar to us or common in business. 3736 to us is Lancaster County, Pennsylvania? A The SPLC, that's one I didn't know, I had to go 14 ) ~ ~ 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 back, but it refers to a specific location within that 3736 zone and 209132 apparently means Ephrata, Pennsylvania. That is, I guess, where we would tell the trucking firm to deliver the material. o So once this is received, probably someone at Bethlehem Steel and perhaps even Andrew Kametz would have made that notation for purposes of pricing and delivery? A Correct. Q Down beneath that are some handwritten notes, 7/21, holding for credit dash Ray and 7/22, okay, Ray. I assume that means A To get a credit approval. Ray is Ray Hoffeld of our credit department and the day after it was referred to him apparently by ~nowing that it was a PennDOT job, his interest would be is there a bond, do we have lien rights, probably some financial data on Structures Unlimited, itself; but also very much interested in who is the owner of the job and what recourse do we have to get money. o In your experience would Ray have spoken to someone to ascertain specifically whether there was a bond or would it be sufficient for him to learn that it was a PennDOT job and, therefore, conclude there was a bond, if you know? A I don't know. Q Okay. But it's possible that what Ray would do ~ ~ 1 is when he finds out it's a PennDOT job he would say fine, 2 that's all the investigation I need? 3 A If all jobs are bonded for PennDOT and he knew 4 that, I could see where that might happen. 5 Q Is it required for Bethlehem Steel that a bond be 6 in place before it will grant credit or approve credit? 7 A Not necessarily. It depends upon the perceived 8 financial responsibility of the purchaser. 9 Q To your knowledge in July of 1994, was Bethlehem 10 Steel doing much business with Structures Unlimited? 11 A I'm sure that's the first order we had had in 12 maybe the previous 10 to 15 years. 13 Q So I guess we'd have to talk to Ray to find out 14 if he did anything beyond what we've just discussed or even 15 if he did that about the credit approval? 16 A Ray is still an active employee. He may have 17 records or a recollection. I don't know. 18 MR. ANDES: Okay. Next Stratton Exhibit No.3. 19 (Purchase Order produced and marked Stratton 20 Exhibit No.3.) 21 (Terms and Conditions produced and marked 22 Stratton Exhibit No.4.) 23 BY MR. ANDES: 24 Q You told me earlier this is a form that was sent 25 to you by Mr. Dietrich and I assume you correct me if I'm ....) 16 '0 4 5 6 7 8 9 10 11 c........ 12 ....) 13 14 -...J 17 1 wrong __ that was sent primarily so the information marked 2 Stratton 4 would be included, which lays out the terms and 3 condition of the order? A Yeah. This page 3 is a sample, only, of our acknowledgment form, which says we've entered your order for, in this case, it's an B by 6 by 1 inch angle, 40 feet long, what have you; and I think these terms and conditions are actually the reverse side of the acknowledgment form. Q That's sent along aA just a sample of what your acknowledgment would have looked like, Bethlehem Steel's? A Yes. I was particularly interested in what the terms and conditions of sale had to say because it's a document I rarely, if ever, see. Q That's not generated by you, that's generated by 15 customer service as a rule? 16 A Order entry, someone in the system in Bethlehem, 17 it's mailed to the customer and does not show up in any of 18 the electronic data that I have access to. 19 Q 00 you know whether there is an acknowledgment 20 form for this particular order? 21 A I'm sure that there is, but I don't know, 22 obviously. I didn't see one. 23 Q Mr. Dietrich supplied you with these documents, I 24 take it? 25 A At my request, yes. 18 ~ ~ 1 Q Looking at No. 2 -- which is the purchase order 2 what specifically did Bethlehem Steel have to do to 3 prepare that steel for delivery? 4 A Are you thinking of the entire process? 5 0 No. I don't want you to go down back and tell me 6 about melting and manufacturing. 7 A I'm not sure where you want me to begin. 8 Q Let me pin that down a little bit. I'll rephrase 9 the question. 10 I assume from the notes that there are stock 11 lengths of these beams. Is that okay if I call them that? 12 A That's wide flange beams. 13 0 Are they what we laymen might call a variant of 14 an I-beam? 15 A Yeah, it's a variant of it. It's a more E-shaped 16 cross-section. It looks -- the cross-section looks somewhat 17 like the capital letter E or H. H. 18 Q I assume from what you said earlier in this 19 deposition is that at Bethlehem Steel they have stockpiles 20 of steel? 21 A Yes, they do. 22 Q Let's start at that point. What would Bethlehem 23 Steel do to make that delivery to Structures Unlimited to 24 comply with that order? 25 A We roll these sections on a scheduled basis. ~ 19 ~ 1 They might roll every fourth week. Two years ago it might 2 have been every third week, every fifth week. I'm not sure 3 about these specific ones. 4 The order entry people, customer service people 5 would enter these against the first open schedule or 6 whatever schedule was required to best meet the requirement 7 stated by the customer. Generally it's as soon as possible. 8 At that time we would have rolled these on our 9 mill just as we would for any other customer and any other 10 customer would include our warehouse there, our depot. 11 In the case of the depot, they would cut them to ~ -...J 12 the stock lengths for steel warehouses or steel service 13 centers, very much the same way, stock lengths for resale. 14 In the case of these pieces -- which are for a 15 specific project -- we were furnished with lengths other 16 than stock lengths to produce. 17 Typically we would roll these out somewhere in 18 the neighborhood of 250 feet long and try to as efficiently 19 as possible cut them to use the entire bar; but to get these 20 specifically for this particular project, they would not 21 have gone through our warehouse or our mill depot, they 22 would have been cut in the mill yard itself. 23 Q That way there wouldn't be as much waste? 24 A Less waste and also it would be for assembling ...) 25 the loads in that same yard. ) ~ ~ 20 1 Q That's less waste, less handling, that way you 2 can run the whole order, cut it to length, as soon as it's 3 ready, load it on a truck and you're done? 4 A That's correct. 5 Q Would there have been, other than rolling it, 6 which is, I take it, what you do with all the steel you 7 produce, you roll it? 8 A Uh-huh. 9 Q And cutting it, which do you with all the steel, 10 what else had to be done, if anything, with these particular 11 beams? Were any holes drilled or were they bent or formed 12 in any other way? Were they painted, anything else? 13 A Not by us. The only fabricating operation we 14 would have performed was cutting to those specific lengths 15 for that specific project. 16 Q Then you would have loaded them on a truck and 17 shipped them? 18 A In general, yes. I don't know whether this was a 19 customer truck or commercial carrier; I assume a commercial 20 carrier. We may have had to notify them prior to shipping. 21 In fact, I think you have some truck schedule notices 22 Q Yes, I think we do. 23 MR. KODAK: They are in the answers. 24 THE WITNESS: I don't know that we had to 25 telephone Tom Stokes and say we have a load ready, it's ~ J ~ 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 leaving at 7 a.m. tomorrow or anything of that type. BY MR. ANDES:. Q Are you aware of any other documents -- strike that. Are there any other documents in your possession that relate to this job? A None in my position. Q As far as you can tell me sitting here today, that's basically what Bethlehem Steel did, rolled, cut and shipped those beams? A I don't know whether that describes everything we do. Those are certainly some of the things. o What else perhaps would Bethlehem Steel have done for these particular beams? A Well, in this case, obviously to satisfy the job we had to prepare a certification, perhaps even notarize it saying that they met a certain specification; also, that the material was melted and manufactured in the USA. We have the shipping list to prepare, records to keep, invoices to issue. o Could we put all those in a general category of administrative or paperwork? A I think so. Q Okay. Aside from paperwork and aside from what I've described, which I'm going to call the manufacturing , 22 ~ :> 1 part, would there be any other type of work that Bethlehem 2 Steel probably would have done? 3 A If I understand the question correctly, I can't 4 think of anything else. 5 0 Okay. Maybe you'll recognize these and it will 6 help and maybe they won't. I'm going to show you some 7 documents which Mr. Kodak provided earlier and they look to 8 be something having to do with the shipping of these 9 products? 10 A Correct. 11 0 Can you tell me what that document is? 12 A It's entitled truck shipment notification Tom 13 Stokes has written on here. I assume that he was notified, 14 probably by fax -- that is an assumption, however. 15 Q Can you tell me, looking at it, what company 16 provided the transportation? 17 A I cannot from this document, no. 18 0 Turn the page and see if there's -- that also 19 appears to be related to transportation, it's a truck 20 shipment notification. Can you tell from that what trucking 21 company was involved? 22 A No. This appears to be just two different pages 23 of the same document. These also are entitled truck 24 shipment notification. 25 Q I would assume from the quantity ordered and the ~ ~ 1 tonage ordered t~at this was shipped on more than one truck? 2 A Probably six or seven. 3 Q So the next several pages appear to be much the 4 same, the truck shipment notification? 5 A That's certainly what they appear to be. 6 Q Would this be a document prepared by Bethlehem 7 Steel and sent to Structures Unlimited notifying them that 8 the shipment has been made and is in process? 9 A I think it's probably sent to them a day or two 10 earlier. 11 Q But it would be sent by Bethlehem Steel for that 12 purpose, notifying them? 13 A Yes. 14 Q And there are two more pages with much the same 15 information. The next page appears to be an invoice or a 16 statement of account? 17 A Yeah. 18 Q Instead of showing you that, let me show you what 19 I believe is -- I know it's attached as Exhibit B to the 20 complaint in this matter, just for purposes of 21 identification and it's labeled Bethlehem Steel Corporation 22 statement of account as of 12/31/94. 23 I assume that's a bill that Bethlehem Steel sends 24 to customers when it's owed money? 25 A I don't know whether it's sent to the customer or ~ ...) 23 24 ~ ...) 1 prepared for our internal use. It's not a document I'm 2 familiar with. 3 Q So you really can't tell me much about it? 4 A I'm sorry, I can't. 5 Q That's okay. I think this one is a little 6 different. No, it's not? 7 MR. KODAK: The date is different, Sam. 8 BY MR. ANDES: 9 Q Yeah, that's all. The next page in this packet 10 that Mr. Kodak provided, are you familiar with that document 11 or that type of document? 12 A That is an invoice, uh-huh. 13 Q And can you tell looking at that who the trucking 14 company is and I'm pointing my finger to an area where I 15 think you might find it? 16 A Kenneth Shook Trucking who is based somewhere in 17 the Lehigh Valley, perhaps Bethlehem. A commercial carrier, 18 a steel hauler, if you will. 19 Q Can you tell from these documents whose 20 responsibility it was to hire and pay the shipper, the 21 trucking company? 22 A We contact a trucker in the absence of any 23 specified trucker or preferred carrier. We will call them, 24 a trucker of our choice. The material is shipped collect so 25 that the freight bill is the responsibility of the o 25 ~ o 1 purchaser. 2 Q All right. 3 A And I think that would show up yeah, collect. 4 Q And that's what collect means, is that the 5 recipient -- in this case, Structures Unlimited -- is 6 responsible to pay the transportation? 7 A That's correct. 8 Q And to summarize what you just said so I'm sure I 9 understand it, if Structures Unlimited had said we want to 10 use Joe Blow trucking company and if Bethlehem Steel had no 11 objection, that's who you would use? 12 A Correct. 13 Q But if they don't specify, then Bethlehem Steel 14 would hire someone? 15 A We -- you know, there are any number of carriers 16 which serve the Bethlehem plant. How business is 17 apportioned among them, I don't know. Perhaps availability 18 of equipment. 19 Q Okay. And in this packet there are approximately 20 nine or 10 invoices. I take it one invoice would be 21 prepared for each shipment? 22 A Yeah, generally that's true. I don't know why 23 there would be eight or nine. 24 Q Maybe I miscounted. Take a minute and look it 25 over? v ~ o v 26 1 A I'm thinking we would get 20 to 22 tons on a load 2 and this note here would indicate someone felt it was about 3 135 tons total; but this is 44,194 pounds. That certainly 4 is a full load. 5 Here's a second for 45,800, a third one for 6 42,630, a fourth for 46,294, a fifth for 44,660 and I 7 believe I'm up to six now. This one is 47,040 and that B appears to be the six loads. 9 Q So six loads and some of those invoices are 10 multiple pages, but apply to one load? 11 A Correct. 12 Q That accounts for my miscounting. 13 00 you have -- other than what you've told me 14 after looking at these documents, do you have any direct 15 knowledge of this order, the steel sold to Structures 16 Unlimited? 17 A Quite frankly, I can recall when this order came 18 in -- not the specific day or whatever, but I get daily a 19 summary of orders entered the day before and it's sometimes 20 in a coded form, if you will, a shorty name; and one day on 21 this list under structural shapes showed up Struc Un and I 22 first looked at that -- because we hadn't done any business 23 with these people for a long time. 24 I looked and wondered who in thunder is that and 25 I thought a little bit and thought it could be Structures i . c,_, 27 ~ ~ 1 Unlimited and I t'Jrned around to my tube and plugged in that 2 shorty name and 10 and behold it was Structures Unlimited in 3 Ephrata, Pennsylvania. 4 I can recall my boss at that time coming out 5 saying who is this? Does anybody know who this is? He 6 thought we had a new customer. 7 Was this, in the scheme of things, a very large Q 8 order? 9 I don't know how to define that. We'll take A 10 orders for 20 tons, in some cases less than a truckload. 11 We'll have orders that will go over a thousand tons. :> 12 Okay. Q 13 A This would be considered, however, to me a large 14 order, a good order. 15 Q Okay. From your own knowledge do you know what 16 Structures Unlimited did with the steel? 17 Only what I've heard since I've talked with Bob, A 18 that then -- what you said, they drilled holes in it, 19 painted it and galvanized it. 20 Q And it was used for what, do you know? 21 A I think I have been told that it was to be driven 22 in the ground to support a sound barrier. 23 Q And would that - - 24 A I don't know, however. ...) Q And when you say you were told, by Mr. Kodak? 25 , ) J ...) 28 1 A I don't remember whether I heard that from people 2 on my end or whether I heard that from you and your office. 3 Q Do you know whether Structures Unlimited did any 4 work on the job site? 5 A I have no knowledge of that at all. 6 Q 00 you know whether they were responsible to 7 drill the holes or paint or galvanize? 8 A I don't know that. 9 Q 00 you know whether they did anything else to the 10 steel other than sell it to Pave x? 11 A I don't know anything of that type factually. 12 Q I imagine you can assume some things, but I'm not 13 asking what you assume, but what you know. 14 A I would assume, yes. We cut it to the specific 15 length, they did some subsequent operations and delivered it 16 to Pavex. That is my assumption of the way a job would 17 typically work. 18 Q Are you familiar at all with sound barriers? 19 Have you ever been involved in selling or designing or 20 implementing them? 21 A I drive by them, same as you have. We have had 22 inquiries from people that say these will be driven into the 23 ground, I guess the precast concrete is slipped down in 24 between the flanges and this is the supporting member. 25 Q On this job you don't know of your own knowledge r'i , :) ...) 29 1 that that's what it was for? 2 3 A I do not. Q But you have been informed you think that's what 4 it was for? 5 A lot of that's going to be assumption, I'm A 6 afraid, because I don't know for certain that was the 7 application here. 10 11 12 13 And you don't know what, if anything, Structures 8 Q 9 Unlimited did with it? A No. Q Okay. A I subsequently tried to call on Tom Stokes, went to Structures Unlimited sometime after this order was 14 entered and shipped and I can't remember if -- whether I was 15 there to seek follow-up business or whether I was there 16 because I had heard we hadn't been paid for it; but I did 17 visit Structures Unlimited and Mr. Stokes was, I think, no 18 longer with the company. He certainly wasn't there the day 19 that I visited. 20 Q 00 you know what Mr. Stokes's position was? 21 A I don't, although apparently he was involved with 22 purchasing material. Whether he was also a project manager 23 or something, I don't know. 24 Q Did you ever deal with or know a man named Brian 25 Richardson in connection with Structures Unlimited? 30 ~ o 1 A That doesn't sound familiar to me. 2 Q How about a John Moran? 3 A Nor does that. 4 Q Okay? 5 A The ownership of that company has changed several 6 times over the years and I think probably I knew people who 7 were there under p~evious ownerships. 8 Q 00 you know a company named LB Foster? 9 A I know of them. 10 Q What type of a company is that? 11 A I think they're in construction related work. I 12 don't know that they're contractors, themselves. I 13 understand they have purchased the assets of Structures 14 Unlimited, however. 15 Q They have, okay. You know that just from street 16 talk and from being in the business? 17 A I think that probably came from my credit people, 18 that the company has now been sold, they're bankrupt and 19 it's sold. 20 I drove by the place yesterday, as a matter of 21 fact. I was covering Lancaster County yesterday. There is 22 no sign on the building. 23 Q Okay. Did it appear to be occupied or did it 24 appear to be inactive? 25 A No. It appeared to be active. v 31 'l ~ 1 Q But without a sign? 2 A Yes. No identification on the building and I 3 think LB Foster is a Pittsburgh based firm and may very well 4 do centralized billing out of Pittsburgh; so before I stuck 5 my nose in, I thought as a courtesy I would talk with our 6 Pittsburgh people. 7 Q Can you tell me anything else about this project B or Structures Unlimited orders of steel from Bethlehem 9 Steel? 10 A We've just had little experience with them. 11 There really is nothing else I can tell you. 12 Q Is this gentleman Kametz, is he still with your 13 company? 14 A No. He has been gone since sometime in 1995. 15 I'm not sure what the date was, late 1995. 16 Q 00 you have any idea where he went? 17 A To the best of my knowledge he is still in the 1B Bethlehem area and the last I knew he had gotten a job with 19 Levinson Steel. Levinson is a customer of ours, a steel 20 distributor, the type that would buy stock lengths. ~ 21 Q And they would be located in the Bethlehem area? 22 A There was to be a two man office there that was 23 being established. Andy Kametz and a fellow named Lenny 24 Martin were opening this office on behalf of Levinson. 25 There was no stocking of material done there. I ~., ".' ~ J C> ~ , e'.'" _, .' -.,. "'_"'''C~' 32 1 think it was to be a sales office, if you will. 2 o Who would be the person in charge of the customer 3 service department now? 4 Since our reorganization? A 5 Strike now. Let's go back to July of 1994. 00 o 6 you know who might have been in charge of it then? 7 I know who was in charge of sales and marketing A 8 in total and I assume under our structure that Bethlehem 9 Structural Products, that customer service would have fallen 10 under that in some way. 11 Obviously there would be probably another one or 12 two levels of management below that and I can't -- I can 13 give you a guess, but that's about the best I can do. 14 Q Well, give me a guess? 15 It would be James Hawke. I believe Jim was the A 16 manager of customer service at that time. 17 Is he still with the company? Q 18 A Yes, he is. 19 MR. ANDES: I think I'm through. Yes, that's all 20 the questions I have. 21 CROSS EXAMINATION 22 BY MR. KODAK: 23 Q I'd just like to clarify a few things. Mr. 24 Kametz working in customer service, was he basically an 25 order taker at the end of an 800 number? -'''.- a--', . ~ c, :) .....J 33 1 He would take orders by phone. He would receive A 2 orders by fax or by mail, enter them into the system. He 3 would be called on for follow-up, status information. 4 Okay. Q 5 He also in some cases might get involved in -- in A 6 this instance apparently he quoted the prices. ., . Does that in any way infringe upon what your job Q B was supposed to be with the company? 9 A No. We're supposedly working together. This material that was produced and cut to length 10 Q 11 by Bethlehem Steel, did it have to meet certain strength 12 qualifications or any other structural qualifications that 13 you're aware of? 14 Yes. Behind the subject block in this Exhibit 2 A 15 it says beam A-709, G-36. 16 Okay. Q 17 The A-709 is a designation of the American A 1B Society for Testing and Materials, which specifies certain 19 requirements for steel. 20 The G-36 undoubtedly is a grade 36 which means it 21 must have a minimum yield strength of 36,000 pounds per 22 square inch and that is a rather common structural grade in 23 this day and age. 24 Q And is that something as the rolling of the steel 25 happens the engineering department make sure these beams as 34 'l ~ 1 they come out comply with those requirements? 2 A The metallurgical or quality assurance people 3 have to do that and in this case they issue a certification 4 saying yes, this does meet the requirement of SAST 709, 5 Grade 36. 6 Q As far as the cutting -- with the exception of 7 two pieces that were 50 feet in length, would this have been 8 in the mill shop? 9 A In this instance they were not in our mill shop. 10 They were all cut off the mill for this job specifically. 11 Q They do one long one with maybe 250 feet, then 12 they make their cuts to order for the particular customer? 13 A Job specific lengths. 14 Q And they do it in such a way to cut down on 15 waste? 16 A Basically cut down on waste for the buyer. 17 Q They also do it in one run because they assembled 18 it all in the yard for shipment, they would have it all 19 together, would that be correct? 20 A Yes. We have to accumulate sensible truckloads 21 somewhere between 40 and 46,000 pounds or whatever the legal 22 limit would be. 23 Q But under normal circumstances this customer 24 could not have come to Bethlehem Steel and gone to your mill 25 shop and gotten any of these pieces with the exception of ~ 35 ~ ~ 1 two 350 foot lengths, is that correct? 2 A That's correct, yes. 3 Q And do you have customers that come in and just 4 go to the mill shop and get what they need? 5 A Oh, yes. 6 Q So 7 A By prearrangement. They don't drive up and make B a selection, but it's ordered, much the same as this was 9 ordered. 10 In some cases we would ship the next day via 11 commercial carrier and in some cases customers send their 12 trucks in. 13 Q For instance, the day they were making these cuts 14 to fulfill this order, would they have been cutting -- for 15 instance, on your Exhibit 2, four pieces 33 feet long; if 16 they had an order from another customer that used 33 17 footers, six for another customer, would they have cut 10 1B while they were working that run or would they have run this 19 run and made these cuts just to fulfill this order, if you 20 know? 21 A Well, obviously we're cutting to fulfill -- in 22 this instance you are talking about two specific orders. 23 Whether all six or -- obviously 10 could not be cut out of 24 one 250 foot long piece. 25 Whether we would cut a long piece all into 33s, I .....J 'l J 1 can't tell you. We may cut two or three or four of the 33s, 2 then cut some other length to try to utilize the piece to 3 the best of our ability. 4 Q If an acknowledgment form for this job does exist 5 and we've seen a sample here today of an acknowledgment 6 -- if it does exist, where would it be possible to get a 7 copy from, from your archives or microfiche or what? 8 A If there is a copy I'm not sure whether it 9 would be a paper copy or a microfilm copy. Quite honestly, 10 I don't know. 11 Q 00 you know for sure if a copy exists or could be 12 found? 13 A I don't know if a copy exists. Whether we retain 14 one electronically and then it disappears from the scene or 15 whether we do retain paper for a specified period of years, 16 I don't know. 17 Is there -- the Uniform Commercial Code there may 18 be some requirement that we do that. I don't know. 19 MR. KODAK: I would ask if you could check with 20 your company and see if anyone would have knowledge of 21 whether or not they could find it, please. 22 A Sure. 23 MR. KODAK: And we'd provide it. I have no other 24 questions. 25 .....J 36 'l J 18 19 20 21 22 23 24 ~ 25 "",'" 37 1 REDIRECT EXAMINATION 2 BY MR. ANDES:. 3 Q I wonder if I can probe your mind a little bit 4 more you have pretty been candid with me and you might be 5 candid enough to tell me you can't answer these questions; 6 but let me, if I may, ask you a couple things beyond what I 7 did before and with your indulgence I'm going to make some 8 copies of things and see if you can help me with them. 9 (Memo dated May 26, 1994, produced and marked 10 Stratton Exhibit No.5.) 11 (Purchase order, produced and marked Stratton 12 Exhibit No.6.) 13 BY MR. ANDES:. 14 Q Mr. Stratton, I'm going to ask you some more 15 questions. I'm going to show you a document which for want 16 of a better term I'm going to call a bid. I don't know that 17 that's a fair description of it. I don't expect you to have seen that before or recognize it or know much about it, but I want to ask you about some of the information on it. This appears to me to be a bid to provide certain material on a project and apparent this is what Structures Unlimited proposed to sell or provide to Pavex, Inc. , on the job in question. I'm going to also show you Exhibit No.6 which '} -- J 38 1 is, as far as I can tell, a purchase order which Pave x 2 initiated and sent to Structures Unlimited for the same 3 basic material. 4 Take a look at those for a minute and I'm going 5 to ask you some questions about the details of the work that 6 was to be done. 7 Okay. I have not seen these before. A 8 I understand that. I'm going to direct your Q 9 attention, I think, more to No. 6 which is the purchase 10 order from Pavex. 11 Skipping down to the item descriptions, the first 12 item, No. 9086 dash 001, does that mean anything to you? 13 A No, sir. 14 Okay. 3251 -- I guess that means lineal feet? Q 15 It would appear it does. A 16 00 you know what width 12 by 58 galvanized beams? Q 17 A I think that refers to the beams which shows up 18 on the Structures Unlimited purchase order to us for this 19 specific job. 20 So the W would not mean with, it would mean Q 21 width? ~ J ~ 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In that case I would think it does mean with 15 by 16 by 1 and 1/8 holes. Q Okay. A Typically in describing a beam that would be a capital W. That's why I'm not quite sure what they mean here. Q We can agree it describes some type of galvanized beam? A It would appear to describe the as rolled product with scale and everything on it as we furnished it, having been galvanized prior to getting to the job site. That's one of the operations that Structures Unlimited would perform or have someone else perform for them. Q Then it says with 7/8 inch holes every two feet above ground. Is that what it means to you? A That's what it means to me. Q The next item, 62 beams, galvanized beams, with 7/8 inch holes every two feet above ground, correct? A Why the holes are there, what purpose they serve, I have no idea. It does lead me to believe, in fact, they were driven into the ground. Q So to fabricate this -- if that's the proper term Structures Unlimited or someone else would have taken the 94 and the 62 beams that Bethlehem Steel sold, ~ o v 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would have galvanized them and would have drilled those holes? A My assumption would be that we would first of all cut these to the lengths required on the job. They, in turn, somehow or other have to clean the scale after that. Generally it's done in a pickling operation; pickling being dunked into an acid type bath, then galvanized or zinc coating can be applied once it's down to bare metal. Q They dip it into acid, then it's dried and put in the zinc, that would gal have a nice it? A Yes. Q And somebody would have probably drilled the hole? A Yes. The holes would have probably been drilled before the galvanization. Q In your experience is that a very big project, to drill those holes? In terms of fabrication, is that a major enterprise or is that a relatively routine sort of thing? A In my judgment it's relatively routine. Q Okay. The structural steel that perhaps supports this building probably has holes drilled in it where beams connect and bolts are put in those holes. How would that compare, for example, to fabricating let's say a fire escape or a set of steel steps. Drilling holes would be a much a ~ .....J 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 simpler process than that, I take it? A That probably involves drilling holes also. Q It also involves assembly and perhaps cutting and shaping as well as drilling holes? A I would think. Q So you would agree putting together -- as in my illustration or my example -- putting together a fire escape or fabricating a set of steel steps would be a more complicated fabricating procedure than this, than drilling holes? A Probably a little more complicated to make detailed drawings. Would it require more man hours of labor to do that; yes. Q The third item is 3 inch by 5 inch by 15 foot angle? A Okay. That is not an item we furnished. It's not an item we any longer produce; but that to me means an unequal leg angle, one leg being 5 feet long, the other being 3 at 90 degrees. Q Three inches and five inches? A Yes, cut a 15 foot length. Q Then it says with 15/16 inch by 1 and 1/8 inch slot every two feet. I assume that means somebody would have to cut a slot in this piece of steel to receive a bolt or fastener of some type? '>'- :.' .....:.,. ~.~~,.:._. ~ '. ;.:, 'Y', ". 42 ~ I_{(,_ 1 A Apparently that's what it would be, to -- 2 riveting is just not done any longer, so I'm assuming it is 3 a bolt hole of some sort or a slot to allow for some 4 adjustment, perhaps. 5 Q Again, in terms of fabrication, maybe a little 6 bit more complicated than drilling a hole, but not a very 7 sophisticated bit of work? 8 A Quite frankly I don't know how a slot of that 9 type is put in, whether it's punched or burned. It could be 10 with a torch, acetylene torch. I don't know, but that would 11 be described somewhere else, I guess. :) 12 Q The fourth item is 1,150 bolts with nuts? 13 A Those -- the A325 that again is an ASTM 14 designation. The A325 is a product we formerly made over in 15 Lebanon before that operation was closed, a high strength 16 bolt for structural applications. 17 Q Is that something a fabricator or steel 18 manufacturer would make? 19 A A fastener manufacturer would make. A fabricator 20 would not. That's a purchased item. 21 Q So Structures Unlimited didn't fabricate these 22 bolts, nuts and washers, they bought them? 23 A That's the only way I can think of, yeah. In my ....J 24 limited knowledge of their shop, they would have no way in 25 the world of making those. It's a specialized thing. .,: .' ,<.,~.~ ":_, ],' '~.' v,_q'......'~ , ""') "'" 1 ":.7 43 o It says Note, all material is both galvanized and 2 painted. I assume after the galvanization they spray paint 3 on the material? 4 A Spray or brush. The reason for that I don't 5 know, unless it's for aesthetic purposes. The galvanizing 6 is for protection, the paint is for appearance. 7 Q In your experience as a salesman I take it you've 8 sold a lot of steel to fabricators? 9 A Yeah. 10 Q Although you haven't done any fabricating 11 work you tell me if I'm wrong -- I would assume you are o 12 somewhat familiar with steel fabrication? 13 14 A I hope so. We'll find out I guess. Q My question is very simple. In the scheme of 15 steel fabrication, if one is a very minimal amount of 16 fabrication and 10 is a very sophisticated, complicated 17 detailed fabrication project, where would you say these fall 18 on that scale? 19 20 21 22 23 A Much closer to the one. Q You think they fall below 10? A Yes. Q Below five? A I don't know that I'm qualified to rate that, but ...J 24 drilling is not rocket science. 25 Q I agree it is not a difficult task. Your feeling ,~ o ....J 44 1 is that in your experience it would not be a very 2 sophisticated or complicated bit of fabrication? 3 A I don't think so. They are paying us to cut 4 these to the length and all they are doing is drilling a 5 hole in it. Those are the only two fabricating operations I 6 can see that were performed here. 7 Q Okay. 8 A Perhaps galvanizing and painting -- I don't know 9 if that qualifies as fabrication or not. Webster probably 10 has a definition. 11 MR. ANDES: Well, that's all the questions I 12 have. 13 14 p.m.) 15 16 17 18 19 20 21 22 23 24 25 (Whereupon, the deposition was concluded at 3:44 ~ 4 5 6 7 8 9 10 11 0 12 13 u 45 1 COUNTY OF DAUPHIN 2 SS 3 COMMONWEALTH OF PENNSYLVANIA I, Tammy J. Ba~er, a Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of DAVID STRATTON. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Reporter-Notary Public, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the said deposition was taken 14 at the time and place specified in the caption sheet hereof. 15 I further certify that I am not a relative or employee 16 or attorney or counsel to any of the parties, or a relative 17 or employee of such attorney or counsel, or financially 18 interested directly or indirectly in this action. 19 I further certify that the said deposition 20 constitutes a true record of the testimony given by the said 21 witness. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 this 18th day of September, 1996L -" i" .\.HC' ~~ Tammy J. Ba~ ,-Reporter Notary PlOblic 24 25 NOTARIAL SEAL TAMMY J. SPOTTS. Nlllry Publlo Lower S..lara T. . , Immi"i,n Ex irll NI>, 9. 1~96 . J1..ti 20 ' 96 11139A'l BETH STEEl...-..~JT ,-.., P.1 .( '. BETHLEHEM ST'BBL CORPORATION CREDIT AND COLLBCTJON PHONE: (610) 694-4831 FAX:' (610) 694.3287 P'ae 1 of 4 P'ICI June 26. 1996 From: R. H. Dietrich To: Dave Stratton . ) Rc: Slruct\lrcs Unlimited ~ U Tho following il lubjccll PO and a copy of our acknowledacment, payment tcnns aro Ipelled out'on the reverse lide, 1"', Let melmow If YO\l need any thinS eIse. b~ 1f1J; Bob Dietrich /. ! '-.. .y ~1!!g1ijjiTT",' 1"I'~\I',"ri,.~cc' ,- 'c , ,,- ;i1;u;., n ; :"-,,,~_-p"'''' -I- , ;' ':"-/g. III Sl'RUcrUUES UNLIMITED, INC. .440 WENGER DRIVE, EPHRATA, PA 11522 PIIONE (717) 738-2418 TRANSMITtAL . FAX. (717) 738.1659 ~OJIJ'! ~€: '<:l~ :f1: 39AM 1Jt.1l/~5W:E.t1w.:bn'l'EU (J l1lY1 e..J,.V' ~ "" rI,. .<\ , :PI- ~H^ NV, III' 'OIUU:! ,-... 7 - c7-f~ IIII1 .. II EXHIBIT J . ",/-rq Ht,,, ~ 11.8 q-[.-l(l,. Letter Fax Job No. ..3'377 Transmittal Plus Pa es, I h.1JJ (leNt! S vV /2. ~ s,. "\ - -- . .-wv - , c~ '1/ ,z~,.. 3W' -. )\-lJ.- ?(l..-{. () - _. rf,,. e QIJ a ~e v..JU J 9, [9. 76" oAl c... l..- flJwE. ~ 7~~ .~P/,C ;D,m.. I 7/2.1 4eL.j)/,J6 If~ ()fl;,T -RIIY I !/~1.. of!- PlAf C?t~) _. ", n ,f;1 ..J.. ,.-,,\ I; - 1Jr.--: I~ ~. ' -- -- Pia -. . - ''36 11'39A1 BETH T - "I. .... c...,,"',.... ........KU&,. '~I*II MIll ... I'UM, 05/15/96 2911011/1 .... 519- 14 .._, ,.... I; STRUC -10 IC ..... ..-.. IPIC1'ICATIDNI AND DIICIIPTtDNI ClQSZD> Z TIR ILK HORZ I VERT OH CHAIN UNLDr; TLIl "IN 40" TRK FLAT SCIIID .. ll!AII'f I' . ---....-------------....----------------------. AlT" AS'-'4 r;R175 ---..-------------....---------------------.... 001 SECTION DESC 26P L8X6X1 F"lX LINE.001 LENGTH 40-00-0/0 SIOLWIOT TOTWIOT 1768 459U 03 01127/" LIS/SECTI TOTAL 45968 4!!968 POUNDS 2S TONI .' ~"'fk tJj .. . ... IXHIB.T 1 S-rrntor'l :5 ,.,.8 .~.rll. think you for your order WhlCh WI havI accepted lubject to thole 'tl~~ and. condition. of .al. which are .et forth above and on thl rlvlr.. .1dl hlr.of. . . ..~.. . lIUallty Stell Ml1ted , Hanufacturld '1n thl u. s. A. Acknowledgment ~~"noN , SDriDr Vie, PNltIJat, C'arurwc14l I""'. P.4 JLti 26 ' 96 11'40R1 BETH ST~DIT TERr-. AND CONDITIONS OF.S"LE - The.. IIIll1llllall b, lIIe eonllUl. An, objCCllon IY)I' m., h... In.ul4 bl ImllO '"1111 pliO' 10 p,.lIIllon; ollle,WlII S,IIe, P'IIU"", Boyer... '.Jll&n. OIIMllle""', "'II p"polair. nel.Ualionl. and ,cpr..u\l.lIonl, II.n" '"la"lIn, IIIla Iran...uon .114 mado prlo, 10 UIc dill here.I... INrled Mrtlft. I PllICIlS .. "'U p'.', unll" hlltln ..lln_ or hlllor." qu.ld u IIrm. lhall be adJYIlCd 10 III..IIUII'I "aa:1 In c(rcc~ .\ lht Ume or IblpmcnL. 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Gal' 1I1II.r__ I_.r r.u...",1MIMh 10UI.1 1""_.'- 1111I al !\'I.....I_ . . ~lI pa,IIltlI" will b. ,.b)otl ".In..,,, chu,lIulolal ,- " ..... d.....nl Ih.lI nO! ... ~ Oft an, lr&IIlporl&UOft .he'l" or ""'. 1Il11 "'"' III 1ncI_ In lilt cloU...", pr- INFORMATlON'IY OTHERS-ltlIor ,hell DOlllo ",p.nIlblo lor 11II _.. ....q....., 0' _Ie~ tllll' iIlI'OIl1lllilll\ IIIInlIbed b1 .Ihon In.lulllni bUI nol ImllOlllllllold IIIIUIII""""lI, IIIIlI'III'pealllall.... oallln&l....lllCIu'oI dellln 01 clellll..' pI.cIIIl planl or bUll tI m.~laI. IUnR'! RI!lIPON.IIUTV-C1&ImI (or chor..... ............ lIl111it or ......11I __, m....._ ~_ . In wrluna' III lilt .."lor ,lmmodI&lIl, upon dell..., and p~or 10 eo.tac\lnllllltr; no oI.lnu or adJ.."""'" will III hanor'" b, ..1111 wllho." 11I11 d""""",lIolIa.. . , MICILLANEOUI-WheIlIllY pardon 01 mo_Ib vt. "'OlOr an.,. 1.1.., In...... 10 Impl., Ib, lawoll "lid ",,'ltrll~ II oqlllpm.nli. not a.a1labIt b11.w. ..lOll _rla'IJI, 111111 rtn'_ "1111 III UII 'Iher molal ..nler.. EU'Jll for p, o. i. mJII cloU.." _ all olhtr IIIllIParlaUOft mall'" IIlalI III ,ubln' lD app",al and contr." 0I11U", NON.W...IVBR IY II!U.ER..Wai... b, 1IW.IIUor .1. br..", 0111I. lIrlftl and condiUaftl Dr lhll conLracl Ihall nOl b, HOIU\lft .. I ..11_ 01 oay alhtt brnch, """' ,...., STRUCTURES UNLIMITED P.o. DOX 210. WENGER DRIVE EPllRAT.... P'" 17522 (717)738.2418 FAX M (717)738.1659 ;J CL 1 ( DATE: 5/26194 TO: "^ VEX, INC. AnN: BILL LINDEMAN FROM. BRIAN RlCH...RDSON QUOTE M: Q451."REVlSED." PRomCT : YORK COUNTY SR 10111-002 QUANTITY ITEM' . NUMBER 9086-001 DESCRIPTION PRICE EACH 'roill- 94 3251 L.F. W12~58 GAL. BEAMS W/718" HOLES EVERY 2' ABOVE GROUND. 62 1597 L.F. WIOx49 GAL BEAMS WnlS" HOLES EVERY 2' ABOVE GROUND. 112 J"xS"x1S' ANGLE W/ISII6"..I.III1" SLOT EVERY 2' 115U 71R"~2.JI4" A325 11f! DOLT W/NUTS 8t.FW. NOTE: ALL MATERIAL IS BOTII GAL V ANIZED AND PAINTED PER SUPPLIED SPEC. I.UMP SUM 215.5110.00 TUTAL PRICE $21S,500 110 PRICE DOES NOT INCLUDE SALES TAX. PRICES ARE F.O.B FACTORY, FREIGIn' PREPAID AND ADD ESTIMATED DELIVERY IS 6 TO II WEEKS AFTI.!R RECEIPT OF APPROVED SHOP ORA WINGS. QUOTATION IS V AJ.ID FOR 6U DA YS ..110M DATE OF QUOTATION. PRICES ARE FIRM FOR DEl.IVERY WITIIIN ONl! YEAR OF ORDI!R ACCEPT ANCF-. 1''' YMENT TERMS ARE NET JO DAYS UNLESS OTIIER WISE INDICATED .... i'>.'~""~<.~.r,..,.,,__ .,.", IXIfIIlT . <.S4-rCribi 5 q-lr q(p . . . ~ .. PRe HAS I o R D Ii: R 1 PAVEX, INC. 4400 GETTYSBURG ROAD ClIHP HILL, PA 17011 , . P.O." 936 (717) 761-1502 REQUESTOR lB. L I NOEHAN 'f4v.'-' ,-, I I : To : I I . I , , '-' ,-, I , IShiPI I To I I . I_I S.R. 101B-002. YORK COUNTY YORK CO.-N.C.A.D. ACCESS ROAD STRUCTURIS UNLIHITED P.O. BOX 210 EPHRATA PA 17522 :p.o.DateiDate Requiredl : 6/02/94,A5 REQI/ESTED , 'Job NolV8ndor~ !9403 ! B626: FOB Point JOBSITE T..rme 'P Rev' I .0. , I Unit , Total , Pric.. , lImount " Ship Via BEST WAY Order IUnit It..m D..cription :TIC: 'Cd' Quantity : H.... I I 94.00 lEA '9086-001 / 3251 L.r. w/12x58 qal. beams w. :TX: , 7/8" hole. ..v..ry 2' above qround CCI900 , I , , , 62.00 lEA 1597 L.r. W10x49 gal. b......a w/7/8" hole. ITX: , ..very 2' above ground CC:900 , , , I . \~ 312.00 lEA 3"x5"xlS' angle w/15/16Ixl-l/B" Blot ITX: .' , ever'1 2' CC:900 , , , , , 1,150.00 lEA 7IB"1l2-3/4" AJ25 HH 801t w/nuts , FW :TXI I CCI900 , , I , NOTE: ALL MATERIAL IS 80TH GALVANIZED AND , I , I PAINTED PER SUPPLIED SPEC. , , I , , , , , TOTAL PRICE (DOES NOT INCLUDE SALES TAXI , I , , , , , --- CONTINUED 215,500.00 NOTES. All deliv..ry ..lipa muat be signed by a PAVEX, INC. EHPLOYEE. All materia1a muat conform to project apecificationo. Plsas.. .ubmlt Certificationa p..r proj..ct .pacificationo aa aoon aa possible. Upon prior notifiCAtion And arranq..manta, Supplier aqr..es to furniah And supply to thla proj..ct, up to full capacity of it.. plant, th.. daily r..quir..m..nts of PAVEX. INC. please subnit shop drawings per project specifications as soon as possible, , ,- f'_'~'~'.~ ~..,. '.... .,.~-: n". ~."' _ .r._ c.' .ZiI(,'IXH'IItT,;' fJ~~~,v ,17.': ,;.:,,~\;lf.%, .... c. ,::L~:- ?JL Equal Employment . PAVE X , INCORPORATED'S omploymant pollcy ia to make no diotinctions : :reAl:m'U1t, hiring. or advancoment at appUcanta or employaee on th.. baai.. at rIlC", color, ae: :~li~lnn, 496, national orlqln, ancestry, non-job related dloabl1ity, Bexual orientation, 'Inil n~mb"l'ohii.l, Vlftt.nam era or disabled votoranu at.sl:ulI, or On any other bdSio prohibited by ld\ :p.O.Date~D&t8 RequLredi : 6/02/94:AS REQUESTED , Ship Via BeST WAY :Job Nolv8ndorl :9403 : 8626: F08 PI:Hne JODSIT! Terms 'P I .0. , , RBV c ---- " R C K A S Ii: ORDIi:R' r". Palle. 2 PAVEX, INC. 4400 GIi:TTYSDURG ROAD CAMP KILL, PA 17011 . . P.o. fa 936 (717) 761-1502 . R!QUI!:STOR. B. LINDEHAIl STRUCTURES UNLIMITID P.O. DOX 210 EPHRATA PA 17522 ,-, , , :ShiPI I TO : , I '_I '-I I , : To : , I , I , I '_I S.R.' 1018-002. YORK COUNTY YORK CO.~N.C.A.D. ACCESS ROAD Ordllr Quantity :Unit !Hllaa Itllm D*ecription :Txl ICd~ Unit pr ice :.. Total Amount NOT!. PRICIi:S ARE r.0.8. FACTORY, FREIGKT PREPAID AND ADD ISTIMATED DELIVERY IS 6 TO 8 ,HEEKS AFTER RECEIPT OF APPROVED SHOP DRAWING. :QUOTATION IS VALID FOR 60 DAYS FROH DATE OF :QUOTATIOM. PRICES ARE FIRH FOR DELIVERY :WITHIN ONE YEAR OF ORDER ACCEPTANCE. PAYMENT 'TERHS ARE NET 30 DAYS UNLESS OTHERWISE INDICATED. 1I0'!!:S. All dlllivlIry slipe must be signed by a PAVEX, INC. EHPLOYEE. All materials must conform to project specifications. please submit Certifications per project speciflcations as soon aB posBible. Upon prior notification and arrangsments, Supplier agrees to furnish and supply to thiB project, up to fuil capacity of its plant, the daily rllquirementa of PAVEX, INC. Authori~ed Sillnature " Equal Emp10ymont ~ PAVEX, INCORPORATED'S employment policy i8 to make no dietinctions :re&tmont, hiring, or advancement or applicant8 or omployee. on the badi. af raco, calor, ~ti :eligion, aqe, national orlgin. ancestry, non-job rOlated diuability, BeKual orientation, un. ",emb"ruhip, Viotnanl ora or disabled vetllrans ~tatuo. or On any other baoiu prohibited by I"~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (tt.lst be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argunent Court. --------------------------------------------------------------------------------------- .';.:' CAPTION OF CASE (entire caption IlI.ISt be stated in full) BETHLEHEM STEEL CORPORATION, (Plaintiff) VB. I PAVEK, INC. and GREAT AMERICAN INSURANCE COMPANIES, ( Defendant) No. 95-7148 Civil Term XI9C 1. State matter to be argued (i.e., plaintiff's IIDtion for new trial, defendant's darorrer to ~laint, etc.): N Plaintiff's Motion for Summary Judgment. 2. Identify counsel who will argue case: (a) for plaintiff: Robert Kodak, Esquire ~s: 407 North Front Street Harrisburg, PA 1710l (b) for defendant: Samuel L. Andes, Esquire ~s: 525 N. 12th Street Lemoyne, PA 17043 3. I will notify all parties in writing within t'oIO days that this case has been listed for argurent. 4. Argunent Court Date: 5 February 1997 Dated: ~~~ >- o. ,>- q;; N ~ e )~ ~~ .J:-... p,:" ~..... -'.':,? ,:[:'. <<:0: -' Q,:: ':~ or;:. 0', "n U.I- I ~;-:-i -". ~ ;ijJ (~< r..:..: 1.>. . .-~ 0- <.:) ., "'- ", ':i 0 0"\ U J. "" ...~..,....~,<.. ,~"'<'r"'-"-"":'::- ,..,.,......, . ('...;-' j BETHLEHEM STEEL CORPORATION, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 9.5- 7/llt tWJ~111. PAVEX, INC., and GREAT AMERICAN INSURANCE COMPANIES, Defendants ORDER OF COURT AND NOW this I~" day of I(/",.P'''' , 1996, upon consideration of the attached Motion to Compel, a Rule is hereby issued upon the Plaintiff and Its counsel, Robert Kodak, Esquire, to show cause, if any they have, why the rellsf prayed for In the attached Motion to Compel should not be granted. Said Rule to be ssrved upon Plaintiff's counsel. Said Rule is returnable ~" days from the date of service. BY THE COURT, rA;L . I . _~ . " ' ,"\ '. r- , ' AlED-OFRCE 0:: TI.'E PP(lTl-'0N'lTM'f 9G AIJG 'S Ml 9: 1.3 CUMiJd;L;:JU (.l;i,Ji\TY PENNSYLVNiV>. e ,..........~'...w,....-~n~~tI_~.'l~~.~."~t;i,.\,,,':~!l:k~..:",>t',,t.~ . ~;, ;C;t',.. ":'I':',!;~;!"!.~~~-f~Y-i~""""f'!l','''':~4.'''' ",~~~i~<i,~",~~iI!;*fP!>'t!.'tl.>>!\;,!~ BETHLEHEM STEEL CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. PAVEX, INC., and GREAT AMERICAN INSURANCE COMPANIES, Defendants NO. ORDER OF COURT AND NOW this day of , 1996, upon considaration of the attached Motion to Compel, it is hereby ordered and decreed as follows: 1. Plaintiff shall, within ten (10) days of the date of this order, designate its corporate representative pursusnt to Pa. R.C.P. 4007.1 (e) and notify Defendants' counsel of the name, title, and address of such person. 2. Within thirty (30) days of the date of this order, Plaintiff shall make the person designatad in accordance with this order available to Defendants' counsel for oral dsposition. BY THE COURT, J. BETHLEHEM STEEL CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. PAVEX, INC., and GREAT AMERICAN INSURANCE COMPANIES, Defendants NO. 95-7148 CIVIL TERM MOTION TO COMPEL AND NOW come the above-named Defendants, by their attorney, Samuel L. Andes, and moves the Court to compel the Plaintiff to designate its corporate representative and produce such person or persons for oral deposition, based upon the following: 1. The moving parties herein are the Defendants, Pave x, Inc., and Great American Insurancs Companies. The responding party herein is the Plaintiff, Bethlshem Steel Corporation. 2. Defendants commenced discovery in this matter in February of 1996 and, at that time, informally requested Plaintiff to designate a corporate representative, pursuant to Pa. R.C.P. 4007.1 (e) and make such person or persons available for oral deposition. 3. After receiving no response from Plaintiff's counsel, Defendants issued a notice on Plaintiff to take the dsposition of Plaintiff on 24 June 1996. That notice was Issued on 6 June 1996 and received by Plaintiff's counsel within two days thereafter. 4. On or about 20 June 1996, Plaintiff's counsel contacted Defendants' counsel and asked that the depositions scheduled for 24 June 1996 be postponed to give him more time to Identify and locate the proper person to be deposed. Defendants' counsel agreed to that request and Plaintiff's counssl promised to get back, within one week, with the name of the designee and dates when he would be available for deposition. 6. For more than a month, Defendants' counsel has had no further communication from Plaintiff's counsel. 6. Defendants wish to proceed with discovery in this matter and their efforts to do so havs been frustratad by the failure of Plaintiff to comply with the Rules of Civil Procedure regarding such matters. WHEREFORE. Defendants hereby move this Court to compel ths Plaintiff to designate its corporata representative pursuant to Pa. R.C.P. 4007.1 (e) and to make such person available within thirty days of the date of the Court's order for oral deposition. y~ ~\\_~~ Samuel L. Andss Attorney for Defendants Supreme Court ID 17226 626 North 12th Street Lemoyne, PA 17043 (7171761-6361 ..._.'......._,..._.~ ..~~.~~:~r-"; ","'. . . .. .~~'+,.'...... ;-,>:,~;:. ..,,~.:~./,j :.\c:,..":~~.,ti~i~~~\;..~-'_:~,;,,r:,'-'~~~ COMMONWEALTH OF PENNSYLVANIA ) ( 55.: COUNTY OF CUMBERLAND ) Personally appeared before me, a Notary Public in and for said Commonwealth and County, Samuel L. Andss, who, being duly sworn according to law, deposes and says that he is the attorney for Defendant in the within action; that he makes this affidavit on behalf of Defendant as the matters are procsdural or refer to matters within the knowledge of counsel and that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information, and belief. ,2", ~~ Samuel L. Andes Sworn to and subscribed before me this {pth day of ~ ,1996. ~~~ N tary Public eM -.. _MllC &-.... l..-lIlI.lI. IIY-- -bNEl_7.'. 5 BETHLEHEM STEEL CORPORATION ) IN THE COURT OF COMMON ) PLEAS OF CUMBERLAND ) COUNTY, PENNSYL VANIA ) ) CIVIL ACTION - LAW ) ) NO. 95-7148 CIVIL TERM ) ) ) Plaintiff vs PA VEX. INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendant~ NOTICE TO THE PLAINTIFF HEREIN: YOU ARE HEREBY NOTIFIED TO RESPOND TO THE ENCLOSED ANSWER AND NEW MA TIER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. ~~ amu L. Andes Attorney for Defendants Supreme Court ID 17225 525 N. 12th Street Lemoyne, PA 17043 (717) 761-5361 ''''!~.!o\;'''''''~~ BETHLEHEM STEEL CORPORATION ) Plaintiff ) ) ) ) ) ) ) vs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PA VEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendants NO. 95-7148 CIVIL TERM ANSWER AND NEW MATTER OF DEFENDANTS AND NOW. come the above-named Defendants, by their attorney, Samuel L. Andes, and make this answer to the Plaintiffs First Amended Complaint. I. Admitted. 2. Admitted. 3. Admitted. 4. Denied. The purchase order referred to in Plaintiffs Complaint is not available for inspection by Defendants and therefore Defendants cannot admit the truth or accuracy of the averments concerning it and so denies same and demand proof thereof at trial. The same answer is made to the claims that Plaintiff verified steel was to be used in a specific way and one a specific project. By way of further answer, Defendants deny that Plaintiff was to "manufacture" any specific steel components or parts and aver that, to the contnuy, Plaintiff was only to provide steel in a "raw" or unfabricated state. 5. Admitted. 6. Denied. It is denied that Plaintiff is entitled to recover under the bond which is the subject of this action and Plaintiff incorporates herein the aveooents set out in its New Matter regarding the bond. Defendants further deny that Plaintiff gave notice "as required by law" or which complied with the teoos of the bond. 7. Denied. Defendants, after reasonable investigation of their records, are unable to detennine whether Plaintiff is owed any sum by Structures Unlimited, Inc. because that infoooation is within the control of the Plaintiff and Structures Unlimited, Inc. and so Defendants deny same and demand proof thereof at trial. 8. Denied. The statements contained in paragraph 8 are conclusions oflaw to which no answer is required. To the extent an answer is required, Defendants deny that Pavex was obligated, by law or otherwise, to provide security which would assure payment to material suppliers such as Plaintiff. 9. Admitted in part and denied in part. Defendants admit that Pavex supplied a bond as required by its contract. The other aveooents in paragraph 9, proporting to describe the bond and its effects, are denied. The bond speaks for itself. 10. Denied. Structures Unlimited, Inc. was a material supplier to Pavex which was obligated to provide certain materials required for the project. Defendants deny that the materials to be supplied by Structures Unlimited were an "integral portion" of the work on the contract. The other aveooents, as to what work Plaintiff was required to do, are beyond the knowledge and infonnation of Defendants because they are within the possession of the Plaintiff and Structures Unlimited, Inc. and so Defendants deny them and demand proofthereofat trial. 11. Admitted. By way of further answer, Defendants incorporate the avennents set out in the New Matter attached hereto. 12. Denied. Plaintiff is not entitled to payment under the bond, did not make a demand for payment in accordance with the bond, and is not entitled to payment by the Defendants. The avennents set out in Defendant's New Matter are incorporated herein. 13. Denied. Defendants, after reasonable investigation, are not able to detennine the truth and accuracy of the avennent set out in paragraph 13 because that infonnation is within the exclusive control of the Plaintiff and Structures Unlimited, Inc., so Defendants deny same and demand proof thereof at trial. The avennents set out in Defendants' New Matter are incorporated herein. 14. (Misidentified as 13) Denied. Plaintiff is not entitled to payment from the Defendants under the bond or otherwise. The avennenls set out in Defendants' New Matter are incorporated herein. WHEREFORE, Defendants demand that Plaintiff's Complaint be dismissed and that judgment be entered in favor of the Defendants in this matter. NEW MAlTER IS. Structures Unlimited, Inc. 's contract with Pavex only required Structures Unlimited, Inc. to supply material to the project in question. 16. Structures Unlimited, Inc. was a material man to Pavex and was not a subcontractor on the subject project. 17. Plaintiff contracted only with Structures Unlimited, Inc. and had not contractual relationship with Pavex or any other party with regard to this project. 18. Plaintiff's contract with Structures Unlimited, Inc. only required Plaintiff to supply certain materials to Structures Unlimited, Inc. 19. Plaintiff was a material man to Structures Unlimited, Inc. 20. Plaintiff has no legal standing or legal right to submit or pursue a claim under the bond which is the subject of this action. 21. Plaintiff did not timely comply with the notice and other procedural requirements of the bond which is the subject of this action. Specifically, Plaintiff did not submit demands for payment and notice of its claim to the Defendants in accordance with the provision of the bond. 22. Plaintiff's claim is barred by the statute oflimitations. 23. Plaintiff's claim is barred by the time limitations ofthe bond which is the subject of this action. 24. Plaintiff's Complaint fails to state a cause of action for which Plaintiff is entitled to recovery. 25. Structures Unlimited, Inc. breached its contract with Defendant Pavex by failing to deliver the materials as promised in its contract. That breach caused Pavex to '--,,-'<'_. .',",,0._ " .~, ~-'-"'<" .'. ....~~- '-' '---:~.+ incur damages, losses, and expenses substantially in excess of $55,000.00. 26. To the extent that Plaintiff is deemed to have produced items which were an "integral part" of the contract which was the subject of the bond on which this action is brought, Defendants believe that Plaintiff failed to produce and deliver such items in a timely fashion, thus causing the delay which caused Pavex the damages referred to in the preceding paragraph. 27. To the extent that Plaintiff produced items which were an "integral" part of the project, Defendants raise that claim for damages against Plaintiff as a set-off to Plaintifrs claim in this action. WHEREFORE, Defendants pray this Court to dismiss Plaintifrs Complaint and enter judgment against Plaintiff and in favor of Defendants. ~Qo Samuel L. Andes Attorney for Defendwlts Supreme Court ID 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 ~,J_ r :'~-~~,.;;,i1t>fr~-"'lil.lli'-.~,,;i..o''-'''''''''.--.:;w'''-f COMMONWEALTHOFPENNSYLVANIA ) )SS.: COUNTY OF CUMBERLAND > William H. Lindeman, Jr., Superintendent of Pave X, Inc., being duly sworn according to law, deposes and says that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information, and belief. , . ~ \.JJ.O,..~ 4J ~da~ William H. Lindeman, r., Superintendent, Pavex, Inc. Sworn to and subscribed before me this 1I"t~day M,., ~ c H of , 1996. ~ 9J J.tA-H.I'U':'A'J Notary Public Nolana, 5001 Barbara H. Slmonte. Nolary Public Lowa' Allen TWp.. Cumbe,land County My Commission Ex""o. Dec. 29. 1997 Ml14r,w, ana PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER AND NOW, this /)P~day of , 1996, v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-7148 Civil Term BETHLEHEM STEEL CORPORATION, plaintiff PAVEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendants CIVIL ACTION - LAW comes Plaintiff, Bethlehem Steel poration, by and through its attorneys, Knupp & Kodak, P.C., and lodges the following reply to the Defendants' new matter: 15. Denied. On the contrary, at least to Plaintiff's knowledge, the steel that was purchased from Plaintiff, in part, had to be fabricated to the extent that the value of that material to anyone else, other than Structures Unlimited, (and presumably Defendant Pavex) would be virtually nil. 16. Denied. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied in that Structures Unlimited required Plaintiff to specially fabricate a portion of the order, and in that, upon information and belief, Structures Unlimited performed additional fabrication on the material that made the material unique for the project that is the subject of this action. As such, Plaintiff believes and therefore avers that Structures Unlimited was a subcontractor, making Plaintiff a sub subcontractor. 1 17. Denied. This averment is II conclusion of law to which no response is required. Furthermore, it is an irrelevant conclusion of law in that Plaintiff's rights are governed by the Public Works Contractors Bond Law. 18. Denied. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment set forth in paragraph 15 hereof are incorporated herein by reference. 19. Denied. This averment is a conclusion of law to which no response is required. 20. Denied. This averment is a conclusion of law to which no response is required. 21. Denied. This averment is a conclusion of law to which no response is required. Further, the Defendants are estopped from relying on any deficiency with respect to the procedural requirements of Plaintiff's notification, in that Defendants arbitrarily refused to provide a copy of the payment bond when Plaintiff requested it. Further, Plaintiff denies that there were any deficiencies in the manner in which it notified the Defendants. 22. Denied. This averment is a conclusion of law to which no response is required. 23. Denied. This averment is a conclusion of law to which no response is required. Further, the averment set forth in paragraph 21 hereof are incorporated herein by reference. 2 - 23. Denied. This averment is a conclusion of law to which no response is required. Further, the averment set forth in paragraph 21 hereof are incorporated herein by reference. 24. Denied. This averment is a conclusion of law to which no response is required. 25. Denied. After reasonable investigation, Plaintiff lacks information necessary to determine the truthfulness of this averment. If material, strict proof thereof is demanded. 26. Denied. Plaintiff did in fact produce and deliver the items in a timely fashion, proceeding with diligence after it received the purchase order and all other necessary documents. 27. Denied. This averment is a conclusion of law to which no response is required. WHEREFORE, Plaintiff requests this Honorable Court to dismiss the Defendants' new matter, and provide relief as requested in Plaintiff's complaint. "!Jfly~ Date I I 7~ Robert D. Kodak Attorney for Plaintiff 407 North Front Street P. O. Box 11848 Harrisburg, PA 17108-1848 (717) 238-7151 Supreme Court I.D. 18041 --~. 3 . VERIFICATION I, Richard G. Masters, an Assistant Secretary of Bethlehem Steel Corporation, am authorized to make verification on its behalf. I verify that the facts set forth in the attached document are true and correct to the best of my knowledge, information and belief. I so state subject to the penalties of 18 Pa.C.S. 14904 (relating to unsworn falsification to authorities). Da? - Jo 199~ I -, ~~ i'r. <<:) ~ ~?] c:: -,. .. .~ :-.~ ..:z r)r .'% (~ ... :.)<"= o{" .... ,~~ . - c{' t- o .~ in " )~ .].... ~'OJ (t" e:~ .jH! :1.. --.' ..;1 1-' -, It. 0.,:) ::5 0 v. U . SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NOI 1995-07148 P COMMONWEALTH OF PENNSYLVANIA I COUNTY OF CUMBEhLAND BETHLEHEM STEEL CORP VS. PAVEK INC ET AL R. Thomas Kline . Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, served the within named DEFENDANT. GREAT AMERICAN INSURANCE COMPANI by United States Certified Mail postage prepaid, on the 18th day of December 1995 . at 1100100 HOURS, at 580 WALNUT STREET CINCINNATI. OH 45202-3180 a true and attested copy of the attached COMPLAINT The returned receipt card was signed by K. MCLAUGHLIN on 12/22/1995. Sheriff's Costs: Docketing Service Affidavit Surcharge certified mail &.00 .00 .00 2.00 2.75 1011/1. 'i' .;/?.J 12/2 T,3I.1J4 t~~~n ~/qg su~:~r~~ee7:~..b_~:~.re.~~, ._"_ "_ '.' ._ 19 q{, A. D. .l-r,~"'~\i!':;"'_"~"'~"";"" '-";, . . " I;O'-\<-,...\'c"'1';.N'lt. ./t.,. t~'.*<<~..",.., .<' f/, . f~r '~-~" \':~:<~~"':'~;::~~>''<~r:~-;-' ::',- :';'__~!-'~T~,~~~:.:;.,~:~~I;'~~~~~-'~~ '. . ~-~~ *~_~~.: ',:, .'. ~'._ ;'1~ Ch,. - C-P~d:;;;dt*,l. ~.ii;. .. . ~ttf~. ~~~~.'}rJ'~'.'..')'''''.'DCk.. .... .~.~F-t.2;}'-. i.:: !~I~.IAit....... ~,;,..".;,; of ti.i mi.iIIl'.I~'~:.i 1,;, it... "bO.ill." "i(lii,.~~.~:H;~.'.~C.ACkl. ,.....i.....A~"i f::a.1.,t'.;i=..... ~1~1.:~,;....,":!...Io4'_............II'_.il'tl;on.;....~. ~'~;.'_i...' '/~:':tf;.l.~~rilellverv...: 'I' ". "'..~'tf,.. _. _to WII .' _1IJlIIII.. ._ ,': ,'t, "', . ..", ","'. . f:ii...........;..,. . c.' .,....... Canautl lorl... ;i'I~3". ._10: . . 4e,'AtUoIe.Nwnbol: .. ~ L....G. :~..~.'...!'...:t.....'A: .m..erican Insurance ..:....'.;.i: Z.: 126 563.' 273 ; /.< ,c::ompanies . .' ~,'81lV1oe Type .I ~ fii"li.OWalnut St.. [J.~ Clntured Ji 'CThcirinat:i, Ohio 45202-3180 --C" C~. c CCCROD R--'- I J' ti'K>;. ". ." . ~ Mill .tum _,.1 01 'I F ~:;\.' 7. -D' 001' ~ h elk, ~.. . . if,. t,: . '''~. "l..~z.. q~ l ,. 8. Add_'. Add,_ (Only If roquootod 'I end 'M" p.ldl ~ .u.l.ClI'O:,_71C DOMESTIC RETURN RECEIPT ..-.,,\-,,-_>-l-'.{"'~'. J';'~?-.;,.-" ',' . ''<'''--;''(-'-''''-<.'. . SHERIrr'S RETURN - REGULAR CASE NO: 199~-07148 P CO""ONWEALTH Or PENNSYLVANIA: COUNTY Or CU"BERLAND BETHLEHE" STEEL CORP VS. PAVEK INC ET AL STEVE WHISTLER CU"BERLAND County, Pennsylvania, vho to lav, says. the vi thin CO"PLAINT upon PAVEK INC defendant. at 1045:00 HOURS. on the 22nd day of December 19~ at 4400 GETTYSBURG ROAD CA"P HILL. PA 17011 .CUnBERLAND County, Pennsylvania. by handing to JI" STRAU8. ASSISTANT . Sheriff or Deputy Sheriff of being duly svorn according vas served the SECRETARY a true and attested copy of the CO"PLAINT and at the same time directing ~ attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So ans~r..? /~ ~"---.<;-r~ . omas Kl~ne, ~her111 18.00 7.28 .00 2.00 627.26 KNUPP AND KODAK 12/26/1995 by ~ '\ ~,--!)" De(pXy~ Svorn an~ sUbscrib~d)to before me this 1/ - day oi-~7 19 q(,. A.D. l ') lU..- C. )h.f(.. _ . ~ ~ I'rc3l:1lonotary -' BETHLEHEM STEEL CORPORATION, ) ) ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION . LAW Plaintiff vs PAVEX,INC., and GREAT AMERICAN INSURANCE COMPANIES, NO. 95-7148 CIVIL TERM Defendants PRELIMINARY OBJECTIONS OF THE DEFENDANTS. PA VEX. INC.. AND GREAT AMERICAN INSURANCE COMPANIES AND NOW come the above-named Defendants, by their attorney. Samuel L. Andes, and make the following Preliminary Objections to Plaintiff's Complaint: MOTION TO STRIKE 1. Pa. R.C.P. 1019(h) requires that the Plaintiff attach a copy of any writing on which the Plaintiff's claim is based. 2. Plaintiff's claim in this matter. as averred in paragraph 9 of Plaintiff's Complaint, is based upon a payment bond which Plaintiff claims that Defendant Pavex posted on the project which is the subject of this action and which Plaintiff claims Defendant Great American Insurance Companies issued for such project. : I 3. A copy of the payment bond on which Plaintiff claims to base its claim is not attached to PlaintiWs Complaint. WHEREFORE, Defendants move this Court to strike PlaintiWs Complaint for failure to comply with Pa.R.C.P. 1019. MOTION TO STRIKE 4. Paragraph 4 of Plaintitl's Complaint avers that Plaintiff dealt only with Structures Unlimited, Inc., and did not deal directly with either of the Defendants or with the owner of the project on which this action was based. S. Plaintiff avers, again in paragraph 4 of its Complaint, that it supplied only material to Structures Unlimited, Inc. Nowhere in Plaintitl's Complaint does Plaintiff aver that it supplied labor or anything other than the material described in paragraph 4 of its Complaint. 6. Under Pennsylvania's Public Works Contractors' Bond Law of 1967 (8 P.S. 191, et seq), a materialman supplying material only to a materialman or subcontractor is not entitled to protection under a payment bond and has no standing to seek recovery on such bond. 7. Plaintiff lacks standing to make its claim in this matter. ,'. ..:>:"'1':",. '.'.,{.~,' .;...:..,....-.-.' " .',,'__'_"4' WHEREFORE, Defendants move this Court to dismiss Plaintiff's Complaint pursuant to Pa. R.C.P. 1028. &~~ Attorney for Defendants 1.0. #17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 BETHLEHEM STEEL CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNlY, PENNSYLVANIA VI. 95.7148 CIVIL TERM PAVEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendants CIVILACfION. LAW IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY. P.J.. HESS AND OLER. JJ. ORDER AND NOW, this Z. I. ~ day of March, the plaintiff is granted ninety (90) days within which to supplement the record of this ease in accordance with the affidavit of counsel filed February 3, 1997. In the event that the record is so supplemented, either party may list the ease for reargument. In the event the record is not so supplemented, an order will be entered granting summary judgment upon motion of the defendants. BY THE COURT. . 'l1, d Robert D. Kodak, Esquire For the Plaintiff Samuel L. Andes, Esquire For the Defendants C""d~ ~L-'( 3J~I"Jq". ~~ :rlm BETIfLEHEM STEEL CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VI. 95-7148 CIVIL TERM PAVEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendants CIVIL ACTION - LAW IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY. P.J.. HESS AND OLER. JJ. OPINION AND ORDER This action arises out of a Pennsylvania Department of Transportation highway construction project in York County. The project involved the construction of approximately 1.6 miles of road, including the restructuring and widening of Statc Road 114 in the vicinity of Interstate 83, the Pennsylvania Turnpike, and the access road to the DDRE (Defense Distribution Region East). The prime contraetor on this project is the defendant Pavel!, Inc., of Camp Hill, Cumberland County. As per Pennsylvania law governing public works construction contracts, ~ 8 P.S. Sec. 191 et. seq., Pavel! was required to provide a bond. The defendant, Great American Insurance Company, issued the bond in question. As part of this projeet, Pavex contracted with Structures Unlimited, Inc. (hereinafter Structures),. to provide "H" beams to serve as the supporting structure of a sound barrier to be installed along the reconstructed highway. According to Penn DOT policy, Structures was not an approved subcontractor on the project; rather Pavel! listed Structures as a supplier. Structures, in turn, obtained the "H" beams from the plaintiff. Bethlehem Steel Corporation. On January 19. · Structures Unlimited is not a party to this action. 95-7148 CIVIL TERM 1995, Structurcs filcd bankruptcy. On Octobcr 20,1994, Bcthlchcm Stcel notified Pavex and the Great American Insurance Company that Structures owed Bethlehem Steel $52,846.30 for the material provided on the project. Notice was sent to Penn DOT on November 14, 1994. After making repeated demands for payment, the plaintiff filed this action on December 15, 1995. Preliminary objections were filcd on January 17, 1996. The plaintiff filed an amended complaint on January 30,1996, which was answered with new matter on March 19, 1996. After taking dcpositions, the defendants filed a motion for summary judgment on December 9,1996. The issue central to the disposition of this motion is whether or not Structures served as a matcrialman or as a supplier under the general contractor, Pavex. If Structures is found to bc a subcontractor, then Bethlchem Steel may claim undcr the bond for the amount still owcd by Structures. If Structures is found to be a mere materialman under Pavex, thcn the plaintiff may not claim under the bond for thc outstanding amounts. Sce 8 P.S. 193(a)(2) (providing that the bond is solely for the protection of suppliers to the prime contractor or the subcontractor). The language of the law is incorporated by reference into the bond agreemcnt. Scc PI.'s Ex. C. A motion for summary judgment should be granted only in eascs that arc clear and free from doubt. Allen v. Mellinl!cr. 156 Pa.Commw. 113, 116,625 A.2d 1326, 1327-28 (1993). The function of the trial court is not to decide issues of fact, but only to decide if such issues exist to be tried. Mvlett v. Adamskv. 139 Pa.Commw. 637, 643, 591 A.2d 341, 344 (1991). On such a motion, the trial court must accept as true all well-pled facts in the non-moving party's pleadings and give that party the bencfit of all rcasonable inferences to be drawn therefrom. Melat v. ~ 411 Pa.Super. 647, 654, 602 A.2d 380, 384 (1992). According to Pa.R.C.P. 1035.3, thc non-m(wing party "may supplcmcntthe record or set 2 95.7148 CIVIL TERM forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposcd to be taken by the party to present such evidence" Pa.R.C.P. 1035.3. This rulc, in effect, allows the non.moving party to n.~k for a continunnce of the motion for summary judgment in order to pursue further discovery. The plaintiff, by WilY of its allorney. Robert D. Kodak. filed an affidavit on February 3, 1997. stating that an effort is underway to locatc former employees of Structures. This effort is crucial, the plaintiff contends, because former employees could offer testimony or information refuting the assertions of the defendants' deponent, William H. Lindeman of Pavex, and establishing that Structures selVed lIS a subcontractor. In light of the plaintiffs contention, we will grant the plaintiff ninety days to produce evidence competent to refute the deposition of Mr. Lindcman and establish Structures' role lIS a subcontractor. Absent the production of such evidence within ninety days. we will grant the defendants' motion for summary judgmcnt, for the reasons set out below. Thc record as it now stands, we belicve, supporl~ the defendants' position that Structures is not a subcontractor, but is rather a materialman. The Pennsylvania Publie Works Contractors' Bond Law of 1967, 8 P.S. Sec. 191 ct. sea.. should be intcrprctcd according to the logic and case law used to interpret the federal Miller Act, 42 V.S.C.A. See. 270a ct. sca. See Lite-Air Products. Inc. v. Fidelitv & Deposit Co. of MalVland, 437 F. Supp. 801, 803 (E.D. Pa. 1977); Eastern Insulatinl! Glass Co. v. Ravmon R. Heddon & Co.. 21 Pa. D. & C.3d 611, 614 (1980); Wehster Bank Co.. Inc. v. Fidelity and Denosit Insurance Comllanv of MalVland. 27 PII. D. & C.3d. 7, 9 (1983). Atlellst our federlll court hilS stated thllt it is for the court to decide, liS II mllller of law, whether or not II mllterilllmnn or suhcontractor relationship exists. Eastern Industries Marketinl!. Inc. v. DeSL'O Electric SllIlply. 651 F. Supp. 140, 3 95-7148 CIVIL TERM 142 (W.O. Pa. 1986). Our focus is upon the "substantiality and importance of the relationship between the middle party and the prime ~'Ontraetor." Aetna Casualtv & Insurance Co. v. United ~ 382 F.2d 615, 617 (5th Cir. 1967). Two cases with facts analogous to the action before us arc Aetna Casualtv & Insurance ~!J!Il[!l. and U.S. ex rei. Clark v. L10vd T. Moon, 698 F. Supp. 665 (S.D. Miss. 1988). Both cases involve the supply of fabricated steel products to construction contracts. Aetna Casualtv at 616; gl!J:k at 666. Both ca.~es hold that in ordcr to bc considcred a subcontractor, thc party must have taken a "large and definable part of the construction project." Aetna Casualtv at 617; Clark at 666. Considerable involvement in the contract as a whole is a prerequisite for a supplier to be considered a subcontractor. Sce Aetna Casualtv at 618; Clark at 667. But. as the Aetna Casualtv court cautions, custom fabrication alone is not enough to establish "the relationship of responsibility and importance necessary to render a middle party a subcontractor." Aetna Casualtv at 617. In the case of Structures, in the record thus far adduced. it supplied steel "H" beams for use in the construction of noise walls. We find this was not a "Iargc and definablc" part of the contract. The contract between Structures and Pavex was for $215,000 out of a $4.7 million overall contract. This accounl~ for only 4.5 percent of the total contract. In Clark the disputed supplies accounted for 5.15 percent of the entire project. Clark at 668. Other factors also militate against finding Structures a subcontractor. It docs not appear from the record that Structures supplicd complex items that were integrated into the contract as whole. First, thc beams supplied wcre not complex. According to the deposition of David Stratton of Bethlehem Steel, Structures merely drilled holes into the steel, galvanized the steel, and had the steel painted. Structures performed no work on site. Mr. Stratton further stated 4 ;,~ ." 95.7148 CIVIL TERM that only the length of the pieces of steel were custom; that the steel used was a stock Item, cut to the desired length. Mr. Stratton testified that the fabrication conducted by Structures was simple. All of this is corroborated by the testimony of William H. Lindeman. Nor were the noise walls, fabricated by Structures, an integral part of the entire project. The essence of the project was a connecting roadway. The roadway would be operational even without the sound barrier. ORDER AND NOW, this 2 "oil day of March, the plaintiff is granted ninety (90) days within which to supplement the record of this case in accordance with the affidavit of counsel filed February 3, 1997. In the event that the record is so supplemented, either party may list the case for reargument. In the event the record is not so supplemented, an order will be entered granting summary judgment upon motion of the defendants. BY TIiE COURT, Robert D. Kodak, Esquire For the Plaintiff Samuel 1.. Andes, Esquire For the Defendants :rlm 5 " ..... LAW OFFICES OF KNUPP & KODAK, P.C. ROIlRT EWlNO KNUPP I1IU.11711 ROIlRT L. KNUPP ROIlRT D. KODAK OARY J. IMILUM CAMERON MAN810N 407 NORTH FRONT 8TI.EET P.O. BOX 11840 HARRI8BURO. PA 1710B.1B48 717/238.7161 FAX 717/238.716B July 17, 1997 OF COUNIlL ROIlRT H. MAURER THE HONORABLE KEVIN A HESS JUDGE COURT OF COMMON PLEAS CUMBERLAND COUNTY COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE PA 17013 RE: Bethlehem Steel Corporation VS: Pavex, Inc. and Great American Insurance Companies Our File No. 3-96-0212 96-7148 Civil, Court of Common Pleas Cumberland County, Pennsylvania Dear Judge Hess: I understand that Samuel Andes, on behalf of Defendants, will be filing a Motion for Entry of Summary Judgment. I have indicated to Attorney Andes that I have no opposition to his Motion and that we do not oppose entry of Summary Judgment at this time. I trust this will help expedite things for both the Court and Mr. Andes, and I thank the Court for Its Indulgence In this matter. ~ Very urY yours. RDK/bjh ;?h /l '" L. -fUd:: rUJ ~ttttM-, ~tr}1 d (/ ck:t - ~t: (! b1tiJ"tJ;Zd:UJ CI ljlCcR,'J1L,'j L t: fv ," nu'1 "I ::'./ t'1 cU"L. cc SAMUEL L ANDES ESQUIRE 626 TWELFTH STREET LEMOYNE PA 17043 BETHLEHEM STEEL CORPORATION 1170 EIGHTH AVENUE BETHLEHEM PA 18016-7699 m~ C') ~ u: S :::) :?; ~. ':)~ .~ :c ~;,.: ..q: f:)~ Co co :.ftn r;: C-. N _l.r.~ U:Z !'i:'" (.!; ttl~ .,. => 'IJ I'" .c ..... a t5 ,.. C'\ BETHLEHEM STEEL CORPORATION, Plaintiff vs. PAVEX, INC., and GREAT AMERICAN INSURANCE COMPANIES, Dafendants -..... 4 ... ''''WI ) ) ) I I I ) ) I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-7148 CIVIL TERM ORDER OF COURT AND NOW this z. 'I ~ day of 1~ , 1997, upon consideration of the attached Motion, a Rule is issued upon the Plaintiff, to show cause, If any it has, why ths relief prayed for therein should not bs granted. Rule returnable 2..0 days from servic3 upon Plaintiff's counssl. . .,;;.~.,.<. 8Y THE COURT, 41L J. AlED-OFFlCE OF T:,!i: F,<rWOmTARY 00() . cJCS Jj '-1."lfi cC/ 97 JUI. 29 PH I: O~ CU\'-",c . '" ',., O\'m( '\I.:U\'~J', ',;,; t".,ul..'j\ PENi\::;\l\!lN/\ i ~ ,.. .,. .,:. ., ~ BETHLEHEM STEEL CORPORATION, Plaintiff vs. PAVEX, INC., and GREAT AMERICAN INSURANCE COMPANIES, Defendants -.;-.\:'i- ,,- ) ) I ) ) I I ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-7148 CIVIL TERM ORDER OF COURT AND NOW this /'1' day of 1Jr"....... , 1997, summary judgmant is entered in favor of the Defendents, Pavex, Inc., and Great American Insurance Companies in this matter. The complaint and claims of the Plaintiff are hereby dismissed and the Prothonotary is directed to enter judgment in favor of the Defendants. BY THE COURT, -AIL J. ALEl){)FF1CE OF Tr:~ f'FI)T!-!a~OTARY q7 mG 20 Art 8: 04 cu.,~-.,. ,..~ COONlY .. ""'I . "LJ ,1111.4"- U.J \0 \ FENNSYl:vNM BETHLEHEM STEEL CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. ) ) ) ) ) ) ) ) ) NO. 95-7148 CIVIL TERM PAVEX, INC., and GREAT AMERICAN INSURANCE COMPANIES, Defendants MOTION FOR ENTRY OF SUMMARY JUDGMENT AND NOW come the above-named Defendants. by their attorney, Samuel L. Andes, and moves the Court for the entry of an order granting summary judgment, in accordance with this Court's Order of 26 March 1997, based upon the following: . 1 . The moving parties herein are the Defendants. 2. In December of 1996, following discovery in the case, Defendants filed a Motion for Summary Judgment. 3. Following the full briefing and argument of Defendants' Motion for Summary Judgment, this Court entered an Opinion and Order, both of which were dated 26 March 1997, deferring final action on the Defendants' Motion for Summary Judgment for 90 days to give Plaintiff and its counsel additional time to supplement the record. A copy of said Order and Opinion are attached hereto and marked as Exhibit A. 4. Since the entry of the Order of 26 March 1997, Plaintiff and its counsel have taken no action to supplement the record or list this matter for re-argument. 5. Plaintiff's counsel has advised Defendants' counsel that Plaintiff has no further information to supplement the record and is not able to further oppose Defendants' Motion for Summary Judgment. WHEREFORE, Defendants move this Court to grant Defendants' Motion for Summary Judgment filed in December of 1996 and to enter judgment against the Plaintiff and in favor of the Defendants in accordance with the attached order. ~ Attorney for Defendants Supreme Court 10 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 , '.,"~ "iI'\":i'f''',~''.i_f,,1-~~~';;lt{:~W:aJ1{~~'t>y;..,; <"~{,<";'~-;~';k-<. , ~~;i""" ,..."....."\.. """',',,._,,_h'" '.... COMMONWEALTH OF PENNSYLVANIA ) ) SS.: ) COUNTY OF CUMBERLAND SAMUEL L. ANDES, being duly sworn according to law, deposes and says that he Is the attorney of record for Defendants herein and that the facts set forth In the foregoing document are true and correct to the best of his knowledge, information, and belief. a-,~~ a uel L. Andes Sworn to and subscribed before me this I SI h day of ~ ,1997. o \'Y\.l~~ .'-P~~.l L~ Notary hc _AI NOTNlW.- MI't' II. Rll8EW.1lalII7N11i1 . IAInllWftBIlGnI. ~b.dCllllllr. PA I Cuinnllll.'"1 .. NcN.2D.2OOD il I BETIlLEHEM STEEL CORPORATION, PlalntlCC IN mE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 95.7148 CIVIL TERM PAVEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, DeCendants CIVIL ACTION. LAW IN RE: DEFENDANfS' MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY. P.I.. HESS AND OLER. JJ. ORDER AND NOW, this z. ,,~ day oC March, the plaintiCC is granted ninety (90) days within which to supplement the record oC this case in accordance with the affidavit oC counsel filed February 3, 1997. In the event that the record is 50 supplemented, either party may list the case Cor reargument. In the event the record is not so supplemented, an order will be entered granting summary judgment upon motion oC the deCendanL~. BY THE COURT, .~,d Robert D. Kodak, Esquire For the PlaintiCC Samuel L. Andes, Esquire For the DeCendants :rlm ,~ '';', ,,..~ -",,'-', , --.-.--".,'-'. ''i''>:"'':':'f(,>1;.V~~~-~a;'';-,,,,1'l'''_ .... . ---. BETHLEHEM STEEL CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VI. 95.7148 CIVIL TERM PAVEX, INC. and GREAT AMERICAN INSURANCE COMPANIES, Defendants CIVIL ACTION . LAW IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY. P.J.. HESS AND OLER. JJ. OPINION AND ORDER This action arises out of a Pennsylvania Department of Transportation highway construction project in York County. Thc projcct involvcd the construction of approximately 1.6 miles of road, including the restructuring and widening of Statc Road 114 in the vicinity of Interstate 83, the Pennsylvania Turnpike, and thc access road to the DDRE (Defense Distribution Region East). The prime contractor on this project is thc dcfcndant Pavcl!:, Inc., of Camp Hill, Cumberland County. As pcr Pennsylvania law governing public works construction contracts, ~ 8 P.S. Sec. 191 el. sea.. Pavel!: was required to provide a bond. The defendant, Great American Insurance Company, issued the bond in question. As part of this project, Pavel!: contracted with Structurcs Unlimited, Inc. (hereinafter Structures),' to provide "H" beams to seavc as the supporting struclure of a sound barrier to be installed along the reconstructed highway. According to Penn DOT policy. Structures WRll nolnn approved subcontractor on the project; rather Pavel!: Iistcd Struclures as a supplier. Struelures, in turn, obtained the "H" beams from the plaintiff, Bethlehem Steel Corporntion. On Jllnullry 19, I Structures Unlimited is not II party to this action. 1995, Structures filed bankruptcy. On October 20,1994, Bethlehem Steel notified Pavex and the Great American Insurance Company that Structures owed Bethlehem Steel $52,846.30 for the material provided on the project. Notice was sent to Penn DOT on November 14, 1994. After making repeated demands for payment, the plaintiff filed this action on December 15, 1995. Preliminary objections were filed on January 17, 1996. The plaintiff filed an amended complaint on January 30, 1996, which was answered with new matter on March 19, 1996. After taking depositions, the defendants filed a motion for summary judgment on December 9, 1996. The issue central to the disposition of this motion is whether or not Structures served as a materialman or as a supplier under the general contractor, Pavex. If Structures is found to be a subcontractor, then Bethlehem Steel may claim under the bond for the amount still owed by Structures. If Structures is found to be a mere materialman under Pavex, then the plaintiff may not claim under the bond for the outstanding amounts. See 8 P.S. 193( a)(2) (providing that the bond is solely for the protection of suppliers to the prime contractor or the subcontractor). The language of the law is incorporated by reference into the bond agreement. See PI.'s Ex. C. A motion for summary judgment should be granted only in cases that are clear and free from doubt. Allen v. Mellinl!er. 156 Pa.Commw. 113,116,625 A.2d 1326, 1327-28 (1993). The function of the trial court is not to decide issues of fact, but only to decide if such issues exist to be tried. Mvlett v. Adamskv. 139 Pa.Commw. 637, 643,591 A.2d 341, 344 (1991). On such a motion, the trial court must accept as true all wcll.pled facLs in the non-moving party's pleadings and give that party the benefit of all reasonable inferences to be drawn therefrom. Melal v. Melat. 411 Pa.Super. 647, 654, 602 A.2d 380, 384 (1992). According to Pa.R.C.P. 1035.3, the non.moving party "may supplement the record or set 2 95-7148 CIVIL TERM 95-7148 CIVIL TERM forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence.' Pa.R.C.P. 1035.3. This rule, in effect, allows the non-moving party to ask for a continuance of the motion for summary judgment in order to pursue further discovery. The plaintiff, by way of its attorney, Robert D. Kodak, filed an affidavit on February 3, 1997, stating that an effort is undelWay to locate former employees of Structures. This effort is crucial, the plaintiff contends, because former employees could offer testimony or information refuting the assertions of the defendants' deponent, William H. Lindeman of Pavex, and establishing that Structures served as a subcontractor. In light of the plaintiffs contention, we will grant the plaintiff ninety days to produce evidence compctent to refute the deposition of Mr. Lindeman and establish Structures' role as a subcontractor. Absent the production of such evidence within ninety days, we will grant the defendants' motion for summary judgment, for the reasons set out below. The record as it now stands, we believe, supports the defendants' position that Structures is not a subcontractor, but is rather a materialman. The Pennsylvania Public Works Contractors' Bond L1W of 1967, 8 P.S. Sec. 191 el. seu., should be interpreted according to the logic and case law used to interpret the federal Miller Act, 42 U.S.C.A. See. 270a el. seu. See Lite-Air Produel~. Inc. v. Fidelitv & Deonsit Cn. of Marvland, 437 F. Supp. 801, 803 (E.D. Pa. 1977); Ea~tern Insulatinl! Glass Co. v. Ravmon R. Heddon & Co.. 21 Pa. D. & C.3d 611, 614 (1980); Webster Bank Co.. Inc. v. Fidelitv and Deoosit Insurance Companv of Marvlaod, 27 Pa. D. & C.3d. 7,9 (1983). At least our federal court has stated that it is for the court to decide, as a matter of law, whether or not a materialman or subcontractor relationship exists. Eastern Industries Marketinl!. Inc. v. Desco Electric Suoolv, 651 F. Supp. 140. 3 95-7148 CIVIL TERM 142 (W.O. Pa. 1986). Our focus is upon the "substantiality and importance of the relationship between the middle party and the prime contractor." Aetna Casualtv & Insurance Co. v. United States. 382 F.2d 615, 617 (5th Cir. 1967). Two cases with facts analogous to the action before us arc Aetna Casualtv & Insurance ~ I!!J![!l, and U.S. ex rei. Clark v. L10vd T. Moon. 698 F. Supp. 665 (S.D. Miss. 1988). Both cases involve the supply of fabricated steel products to construction contracts. Aetna Ca.~ualtv at 616; Clark at 666. Both cases hold that in order to be considered a subcontractor, the party must have taken a "large and definable part of the construction project." Aetna Ca.~ualtv at 617: Clark at 666. Considerable involvcment in the contract as a whole is a prerequisite for a supplier to be considcred a subcontractor. See Aetna Casualtv at 618; Clark at 667. But, as the Aetna Casualtv court cautions, custom fabrication alone is not enough to establish "the relationship of responsibility and importance necessary to render a middle party a subcontractor." Aetna Casualtv at 617. In the case of Structures, in the record thus far adduced, it supplied steel "H" beams for use in the construction of noise walls. We find this was not a "large and dcfinablc" part of the contract. The contract between Structures and Pavex was for $215,000 out of a $4.7 million overall contract. This accounts for only 4.5 percent of the total contract. In Clark the disputed supplies accounted for 5.15 percent of the entire project. Clark at 668. Other factors also militate against finding Structures a subcontractor. It docs not nppear from the record that Structures supplied complex items that were integrated into the contract ns whole. First, the beams supplied were not complex. According to the deposition of David StraUon of Bethlehem Stecl, Structures merely drilled holes into the stcel. galvanized the steel, and had the steel painted. Structures performed no work on site. Mr. Strallon further stated 4 BY THE COURT, 95.7148 CIVIL TERM that only the length of the pieces of steel were custom; that the steel used was a stock item, cut to the desired length. Mr. Stratton testified that the fabrication conducted by Structures was simple. All of this is corroborated by the testimony of William H. Lindeman. Nor were the noise walls, fabricated by Structures, an integral part of the entire project. The essence of the project was a connecting roadway. The roadway would be operational even without the sound barrier. ORDER AND NOW, this 2. "." day of March, the plaintiff is granted ninety (90) days within which to supplement the record of this case in accordance with the affidavit of counsel filed February 3, 1997. In the event that the record is so supplemented, either party may list the case for reargument. In the event the record is not so supplemented, an order will be entered granting summary judgment upon motion of the defendants. Robert D. Kodak, Esquire For the Plaintiff Samuel 1- Andes, Esquire For the Defendants :rlm 5