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COMMONWEALTH PENNSYLVANIA v. DIAMOND SHAMROCK CHEMICAL COMPANY (10/11/78)

decided: October 11, 1978.

COMMONWEALTH OF PENNSYLVANIA, PLAINTIFF
v.
DIAMOND SHAMROCK CHEMICAL COMPANY, A UNIT OF DIAMOND SHAMROCK CORPORATION, DEFENDANT



Original jurisdiction in case of Commonwealth of Pennsylvania v. Diamond Shamrock Chemical Company, a Unit of Diamond Shamrock Corporation.

COUNSEL

G. Alan Kramer, Deputy Attorney General, with him J. Justin Blewitt, Jr., Deputy Attorney General, and Robert P. Kane, Attorney General, for plaintiff.

Roger T. Shoop, with him James K. Thomas, and Thomas & Thomas, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by President Judge Bowman.

Author: Bowman

[ 38 Pa. Commw. Page 90]

This is an assumpsit action filed within our original jurisdiction by the Commonwealth of Pennsylvania (Commonwealth) against Diamond Shamrock Chemical Company (Diamond). Presently before us are (1) the Commonwealth's application for leave to file answer nunc pro tunc to Diamond's request for admissions and (2) Diamond's motion for summary judgment.

On January 20, 1976, the Commonwealth filed its complaint in assumpsit, the essential allegations of which are as follows: On or about November 15, 1973, the Commonwealth and Diamond entered into a written

[ 38 Pa. Commw. Page 91]

    contract whereby Diamond agreed to sell and deliver to the Commonwealth its requirements for pesticides Amine 2D/2T and Amine 4D for the period beginning January 1, 1974 and ending December 31, 1974. On April 3, 1974, Diamond informed the Commonwealth that it would be unable to produce either Amine 2D/2T or Amine 4D; that it would be unable to supply any of the Amine 2D/2T requirements; and that it possessed a sufficient quantity of Amine 4D to supply up to the contract's estimated quantity, but could not supply any requirements beyond that figure.*fn1 It is alleged that Diamond subsequently delivered 4020 gallons of Amine 4D, the Commonwealth's good faith requirements having been 7020 gallons. It is alleged that Diamond delivered no Amine 2D/2T, the Commonwealth's good faith requirements having been 9450 gallons. Finally, the Commonwealth alleges that it purchased the needed quantities of these pesticides "in the open market at a cost of $95,121.00 or $40,185.50 in excess of the price called for by the contract. . . ." The Commonwealth demands judgment against Diamond in the sum of $40,185.50 plus interest.

By way of answer, filed March 1, 1976,*fn2 Diamond admits that it supplied the Commonwealth with no Amine 2D/2T and with only 4020 gallons of Amine 4D. It denies, however, the Commonwealth's allegations

[ 38 Pa. Commw. Page 92]

    regarding good faith requirements or open market purchase price. See Pa. R.C.P. No. 1029(c). Under new matter, Diamond asserts the following:

On February 24, 1974, the E. I. DuPont facility at Beaumont, Texas, was accidentally and unexpectedly shut down. This plant was the chemical industry's major source of methanol, an essential element in the production of dimethylamine. Without dimethylamine, the Defendant could not produce Amine D. Without triethylamine [which Diamond alleges it was unable to obtain because of a severe depletion of the production of ethylene (which is necessary to produce triethylamine) occasioned by certain directives of the Federal Energy Office to petroleum producers during the Arab oil embargo], the Defendant could not produce Amine T; and, without Amine D and Amine T, the Defendant could not produce Amine 2D/2T as required by the contract with the plaintiff.

The Commonwealth filed its reply to new matter on March 8, 1976.

Examination of the file in this case reveals that by letter of December 1, 1976, the Chief Clerk of this Court notified the Commonwealth that unless action was taken on this case within twenty days, a rule to show cause why the case should not be dismissed for want of prosecution would be issued. On May 11, 1977, the Court issued such rule against the Commonwealth. On May 26, 1977, upon consideration of the Commonwealth's response to said rule, an Order was entered discharging the rule.

On May 27, 1977, Diamond filed and served on the Commonwealth, pursuant to Pa. R.C.P. No. 4014, a request for admissions as to certain facts, and on June ...


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