Jon Campisi Feb. 20, 2014, 12:19pm


A breach of contract case first brought against a manufacturer of pool

supplies back in the spring of 2008 has once again been revived after defense lawyers filed a petition seeking to transfer the action to federal civil court.

Attorneys representing Hayward Industries Inc., a New Jersey company that makes various types of pumps, lights and other pool equipment, filed a removal notice Feb. 18 at U.S. District Court in Philadelphia asking a federal judge to take up jurisdiction over a case initiated nearly six years ago by Carlton Pools Inc., which is based in Warminster, Bucks County.

In its lawsuit, originally filed in the Bucks County Court of Common Pleas, Carlton, which is in the business of pool design, construction and installation, alleges that the defendant never made it aware of problems associated with various pumps and lighting units, something that caused Carlton great time and expense since it had to rectify the problems in customers’ pools.

Carlton, which purchased the defendant’s products in 2005, 2006 and 2007, is suing Hayward for breach of contract, breach of warranty, negligence, and defective product.

Hayward is also accused of failing to compensate Carlton for the repairs and services it had to undertake due to the defective products.

In this week’s legal filing, Hayward’s attorneys take issue with the length of time by which it took Carlton’s lawyers to respond to the defendant’s answer and new matter to the complaint, which the defense filed in late June 2008, just over a month after the litigation was initiated.

The plaintiff, last week’s filing says, waited more than two years, until mid-September 2010, to file a reply to Hayward’s new matter.

In November 2009, Hayward’s attorneys served their objections to the suit, responses and other documents in response to Carlton’s discovery requests, the filing states, but the plaintiff took no further action with regard to these defense filings.

In late October 2012, court records show, the Bucks County prothonotary sent a notice to Carlton stating that the case was subject to termination within 30 days because there had been no docket activity for two years.

Carlton then responded on Nov. 9, 2012, certifying that the case was still active.

Then, three days later, Carlton, for an unknown reason, re-served the exact same discovery requests to which Hayward had already responded, records show.

Time again lapsed, and Carlton didn’t take any action until July 29 of last year, when it filed a motion for leave to file an amended complaint.

The proposed amended complaint stated for the first time that the alleged damages would be in excess of $50,000, which differed from the first time around, when Carlton asserted that damages would likely not exceed $50,000, which is the arbitrational limit in a Pennsylvania court.

The defense filing from last week goes on to state that Carlton sent Hayward a “demand” on Feb. 7 of this year stating that it would be seeking more than $152,000 in total damages arising from the defendant’s alleged breach of contract.

In April 2013, plaintiff’s attorneys provided Hayward with a demand stating the alleged damages to be not exceeding $75,000.

“The Demand demonstrates that Carlton knew (or certainly should have known) that its alleged damages exceeded $75,000 when it filed this action in 2008, and that Carlton most certainly knew that its alleged damages exceeded $75,000 in 2009 and 2010,” the removal petition states. “Carlton did not disclose this information to Hayward until February 2014.”

Hayward’s attorneys wrote that their removal notice is timely because it comes within 30 days after it received Carlton’s demand, which it says is the first “other paper” in which the plaintiff alleges that the amount in controversy stands in excess of $75,000.

“Had Carlton provided the Demand information to Hayward within the initial year after commencement, Hayward could have appropriately filed its removal at that time,” the petition states.

The defense lawyers wrote that considering Carlton’s alleged damages are in excess of $152,000, “the amount in controversy is well in excess of $75,000, exclusive of interest and costs.”

The defense petition was filed by attorney Joshua Roberts of the firm McCarter & English.

Carlton is being represented by Huntingdon Valley, Pa. attorneys Kenneth C. Russell and Donald F. Copeland, of Baratta, Russell & Baratta.

 

The federal case number is 2:14-cv-00955-TON.

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