The opinion of the court was delivered by: WILLIAM W. CALDWELL
Pending is the motion for summary judgment of plaintiff Carlisle Corporation ("Carlisle"). We exercise jurisdiction pursuant to 28 U.S.C. § 1332(a).
Carlisle is a manufacturer of, inter alia, roofing materials incorporated in Delaware and principally located in Carlisle, Pennsylvania. Uresco Construction Materials, Inc. ("Uresco"), is a Washington corporation principally located in Kent, Washington. In July, 1985, the parties entered into a contract calling for Uresco to serve as distributor or manufacturer's representative for Carlisle's products in Washington, Oregon, and Alaska. In 1992, Carlisle terminated the agreement and threatened to sue Uresco for payment of a number of outstanding invoices. Uresco immediately filed suit in the United States District Court for the Eastern District of Washington asserting that Carlisle had breached the distributorship agreement. Two weeks later, Carlisle filed suit in this court seeking payment of the allegedly unpaid invoices. Carlisle filed a motion before the Washington court for transfer of the action pending there to the Middle District of Pennsylvania and the motion was granted on October 2, 1992. Carlisle filed a motion for summary judgment and a supporting brief on April 22, 1993. The motion is now ripe for disposition.
A. Summary Judgment Standard
Summary judgment is appropriate when there remain no genuine issues as to any material facts and judgment may be entered as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When a movant submits that there is no genuine issue as to a material fact, its opponent must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd., et al v. Zenith Radio Corp., et al, 475 U.S. 574, 586; 106 S. Ct. 1348, 1356; 89 L. Ed. 2d 538 (1986).
B. Distributorship Agreement
In our recitation of the facts of this case, we referred to the initial agreement between Carlisle and Uresco as a distributorship agreement. In its opposition to the current motion, defendant challenges that designation.
. . . it is clear that Carlisle did not intend that Uresco be a dealer or distributor, and that the "distributorship" cases Carlisle cites do not control here.
Defendant's Brief at 10. This assertion is at odds with the characterization defendant offered in its amended complaint filed January 12, 1993 (before the cases were consolidated).
7. Plaintiff Uresco and defendant Carlisle, through its Syntec Systems Division, entered an agreement in 1985 wherein Uresco was to act as a representative of and distributor of defendant's roofing products in Alaska, Oregon, and Washington. Uresco thereafter expended substantial money and effort to create a distribution network in those states . . .
Additionally, in his declaration of October 9, 1992, Uresco's president characterized the relationship in describing Uresco's contacts with Pennsylvania:
Uresco's only contact with Pennsylvania once it began to act as a distributor of Carlisle's products were four or five telephone calls a year to Pennsylvania . . .
Declaration of Chad T. Moore at P 5 (Oct. 9, 1992) (emphasis added). Uresco's current argument that the agreement was something other than a distributorship agreement is of recent vintage.
Ultimately, the issue is of little consequence. Whatever label is appended to the contract, its terms describe an arrangement analogous to a distributorship agreement and defendant has drawn no substantive distinction.
Plaintiff argues that it is entitled to judgment because Uresco ordered roofing materials, accepted them when tendered, and has yet to pay for them. Uresco does not dispute that the materials were ordered and delivered and that it has not yet paid for them.
As a threshold matter, we note that the Uniform Commercial Code ("UCC" or "Code") applies to this transaction in goods. UCC §§ 2-102, 2-105. Under § 2-709, a seller may institute an action for the price of goods accepted by a buyer.
(1) When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section, the price
(a) of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; . . .
In the instant case, there is no question that the goods were accepted and that the buyer (Uresco) has failed to ...