The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS
Pending before the Court is Plaintiff's Motion for Summary Judgment ("the Motion") (doc. 36-1), filed on July 5, 2006. Plaintiff's Motion seeks summary judgment on the claims Plaintiff makes in its Complaint (doc. 1-1) and the claims made against it in Defendants' Counterclaim (doc. 17-1). For the reasons that follow, the Motion will be denied.
On or about August 11, 2005, Plaintiff Construction Specialties, Inc. ("Plaintiff" or "CSI") commenced this action by Writ of Summons in the Court of Common Pleas of Lycoming County, Pennsylvania. Plaintiff filed its Complaint in Assumpsit on August 15, 2005 seeking recovery of the purchase price for products manufactured at its Muncy, Pennsylvania plant and shipped to Defendants. On September 15, 2005, pursuant to 28 U.S.C. § 1446, Defendants removed the suit to this Court on the basis of diversity jurisdiction.
On July 5, 2006, Plaintiff filed the instant Motion (doc. 36-1), which has been fully briefed by the parties. The Motion is, therefore, ripe for disposition. STANDARD OF REVIEW:
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).
Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. See id. at 325.
Rule 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. See Celotex, 477 U.S. at 322-23 (1986).
It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)(citations omitted).
Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
STATEMENT OF RELEVANT FACTS
Although the parties largely agree about the general circumstances that gave rise to the instant case, they disagree on several areas. We will not attempt to conduct a piecemeal examination of each fact presented by the parties, but will discuss the relevant factual background necessary to resolve the pending Motion. We will, where necessary, view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party, Defendants, in our analysis of the pending Motion.
Plaintiff Construction Specialties, Inc. ("Plaintiff" or "CSI") is in the business of manufacturing and supplying building and construction material and products. (Rec. Docs. 36 at 2, ¶ 5 and 45 at 1, ¶ 5). Defendant Ed Flume Building Specialties*fn1 ("Defendant" or "Flume") operates as a manufacturers' representative that solicits and secures the sale of various manufacturers' products to contractors. (Rec. Docs. 36 at 4, ¶ 13; 45 at 1, ¶ 6). Defendant also engages in the resale of certain specialty construction supplies and products to the public. (Rec. Docs. 36 at 2, ¶ 6; 45 at 1-2, ¶ 6).
On or about June 5, 2001, CSI and Flume entered into a Sales Representation Agreement*fn2 ("Agreement") in which Flume contracted to promote and solicit orders for CSI's products. (Rec. Doc. 47 at 2; Def.'s Exh. 1). Flume alleges that pursuant to the Agreement, it then in fact undertook to promote and solicit orders for CSI's products. (Rec. Doc. 47 at 2). It apparently did so to CSI's satisfaction until some point prior to February 23, 2004, when CSI sent Flume a letter indicating that CSI was concerned about Flume's "lack of sales results over the past 12 months" and "poor follow-up" on quoted jobs and that Flume's performance would be evaluated again on June 1, 2004. (Rec. ...