DWS International Trading Inc. v. Century Finance Inc.

83 Pa. D. & C.4th 353
CourtPennsylvania Court of Common Pleas, Centre County
DecidedApril 17, 2007
Docketno. 2005-892
StatusPublished

This text of 83 Pa. D. & C.4th 353 (DWS International Trading Inc. v. Century Finance Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Centre County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DWS International Trading Inc. v. Century Finance Inc., 83 Pa. D. & C.4th 353 (Pa. Super. Ct. 2007).

Opinion

BROWN JR., P.J,

Before the court is a motion for summary judgment against defendant Samuel Mannino, filed by plaintiff DWS International Trading Inc., d/b/a Marble Dimensions. Because this court determines no genuine issues of material fact remain, plaintiff’s motion is granted.

HISTORY

On October 1,2001, plaintiff DWS International Trading Inc., d/b/a Marble Dimensions, and defendant Century Finance Inc. entered into a consignment sales agreement. Pursuant to the agreement, between October 1, 2001 and October 4, 2001, plaintiff shipped stone and marble furniture tops worth $536,038.12 to defendant Century. The items were either to be used by defendant Century or resold on consignment. Under the terms of the consignment agreement, defendant Century was obligated to pay plaintiff for each item at the earlier of the date that such item was sold or incorporated into a finished product and 36 months from the date such item was delivered to defendant Century. Defendant Samuel Mannino, as owner of 100 percent of defendant Century’s stock, signed a personal guarantee, ensuring defendant [355]*355Century’s performance of the consignment agreement. In July 2003, defendant Samuel Mannino sold defendant Century to two individuals, Deborah Noyes and Chance Conner.

On March 4, 2005, plaintiff filed a complaint against defendants, alleging it did not receive payment from defendant Century for the products delivered in October 2001. On June 23, 2005, defendant Samuel Mannino filed an answer, new matter, and counterclaims for breach of contract, breach of warranty, and breach of duty of good faith and fair dealing. Due to defendant Century’s failure to defend against plaintiff’s complaint, on August 8,2005, default judgment was entered against defendant Century in favor of plaintiff.

On February 15, 2007, plaintiff filed the motion for summary judgment against defendant Samuel Mannino now before this court. Oral argument on plaintiff’s motion was held on April 4, 2007.

DISCUSSION

In its motion for summary judgment, plaintiff maintains it is entitled to judgment in its favor on both its complaint and on defendant Samuel Mannino’s counterclaims.

The Pennsylvania Superior Court has explained that summary judgment is appropriate if, “after the completion of discovery relevant to the motion,... an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Chris Falcone Inc. v. Insurance Company of the State of Pennsylvania, 907 [356]*356A.2d 631, 635 (Pa. Super. 2006). “In order to withstand a motion for summary judgment, a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Keystone Aerial Surveys Inc. v. Pennsylvania Property and Casualty Insurance Guaranty Association, 777 A.2d 84, 89 (Pa. Super. 2001) (citing Lititz Mutual Insurance Company v. Steely, 746 A.2d 607, 609 (Pa. Super. 1999)). “Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing Lititz Mutual, 746 A.2d at 609).

Summary Judgment on Plaintiff’s Complaint

In its motion for summary judgment on the complaint, plaintiff maintains defendant Samuel Mannino is liable for defendant Century’s debt to plaintiff as a matter of law. This court agrees.

As part of the consignment agreement between plaintiff and defendant Century, defendant Samuel Mannino, then owner of 100 percent of defendant Centuiy’s stock, signed a personal guarantee, ensuring “the prompt payment when due or to become due to [plaintiff] under the terms of the consignment agreement.” Consignment agreement, p. 5. Defendant Samuel Mannino later acknowledged that he signed and understood the personal guarantee. Deposition of Samuel Mannino, 1/23/06, p. 34.

The terms of the consignment agreement provided that payment to plaintiff for items shipped would be due at the earliest of the following events:

[357]*357“(a) The individual furniture top is cut from its original size.

“(b) The individual furniture top is sold to a third party.

“(c) The expiration of 36 months from the date of delivery of each furniture top. This period may be expanded, from time to time, by [plaintiff], by giving written notice to [defendant Century] at least 30 days prior to the expiration of the aforementioned period as the same may be from time to time extended.” Consignment agreement, p. 2.

Despite such provision in the consignment agreement, more than 36 months lapsed from the dates of plaintiff’s deliveries to defendant Century {i.e., October 1, 2001 through October 4, 2001) without plaintiff receiving payment. As a result of such failure to pay on the part of defendant Century (even after plaintiff obtained a judgment against defendant Century in August 2005), plaintiff now seeks enforcement of defendant Samuel Mannino’s personal guarantee, pursuant to which defendant Samuel Mannino “guarantee[d] to [plaintiff], its successors and assigns, the performance by [defendant Century], of all terms on the part of [defendant Century] to be performed under the foregoing consignment agreement, and [defendant Samuel Mannino] guarantee[d] to [plaintiff], its successors and assigns, the prompt payment when due of all sums due or to become due to [plaintiff] under the terms of the consignment agreement.” Id. at 5.

This court determines, based on such language, plaintiff is entitled to summary judgment against defendant Samuel Mannino for the amount owed under the contract {i.e., $536,038.12).

[358]*358Defendant Samuel Mannino maintains summary judgment is inappropriate in this matter because factual issues remain. First, defendant Samuel Mannino contends there is a dispute as to the quantity of items shipped by plaintiff. Second, defendant Samuel Mannino asserts there is a dispute as to the quality of such items. Finally, defendant Samuel Mannino contends the price of the items is in dispute, as the consignment agreement does not state a definitive price. This court disagrees that these or any other factual issues remain.

Quantity and Price

In Paragraph 7 of its complaint, plaintiff alleged the following: “[o]n or about October 1, 2001 through October 4, 2001, plaintiff delivered various natural stone products to defendant Century, of the quantity, size[,] description and price set forth in the inventory, a true and correct copy of which is attached hereto, incorporated herein and marked exhibit ‘B’.”

The inventory referenced above and marked as exhibit B to plaintiff’s complaint shows a listing of nearly 200 items, along with their sizes, quantities, and costs (including freight/duty).

Defendant Samuel Mannino, in his answer, replied as follows to paragraph 7 of plaintiff’s complaint: “Admitted.

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Bluebook (online)
83 Pa. D. & C.4th 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dws-international-trading-inc-v-century-finance-inc-pactcomplcentre-2007.