IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNSYLVANIA GEAR CORPORATION,

Plaintiff

v.

ACSA STEEL FORGINGS, S.p.A.,

Defendant

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No. 02 cv 4359

TRIAL BY JURY DEMANDED

DEFENDANT, ACSA STEEL FORGINGS, S.P.A.’s, MOTION TO DISMISS

AND NOW, the Defendant, ACSA Steel Forgings, S.p.A., by and through its

attorneys, files the following Motion to Dismiss, respectfully representing as follows:

1. Defendant, ACSA Steel Forgings, S.p.A. (“ACSA”), files this motion to

dismiss the complaint under Rule 13(a) on the ground that the claims made by Pennsylvania

Gear Corporation (“PennGear”) in this action constitute compulsory counterclaims, which are

required to have been filed as part of ACSA’s lawsuit filed against PennGear in the Western

District of Pennsylvania. 

2. On or about August 16, 2001, ACSA commenced an action for breach of

contract against PennGear by filing a Complaint in the United States District Court for the

Western District of Pennsylvania. That civil action, captioned ACSA Steel Forgings v.

Pennsylvania Gear Corp., is currently pending in the United States District Court for the Western

Case 2:02-cv-04359-MAM Document 5 Filed 09/30/2002 Page 1 of 5
2.

District of Pennsylvania at no. 01-265 Erie. A copy of the complaint filed by ACSA is attached

hereto as Exhibit 1. 

3. Almost ten (10) months later, on or about, June 2, 2002, PennGear commenced

its own lawsuit in the Court of Common Pleas of Bucks County. ACSA then timely removed the

lawsuit to this Honorable Court. In its complaint, PennGear alleged damages under the same

contract which forms the basis of ACSA’s earlier filed action. 

4. The contractual relationship which forms the basis of both lawsuits began in or

around 1997. Pursuant to that relationship, PennGear offered to purchase from ACSA various

forgings and in addition, to pay certain shipping expenses and warehouse costs for the same. 

ACSA accepted these offers and manufactured and shipped the forgings ordered by PennGear.

As part of this manufacturing process and, in order to supply the forgings to PennGear under the

agreement, ACSA also fabricated specialized molds (called tooling) which were used by ACSA

to cut and form the forgings purchased by PennGear. For a period of time, in accordance with

the parties’ agreement, PennGear made payments to ACSA. Subsequently, PennGear accepted

forgings manufactured by ACSA, but failed and refused to pay ACSA for the same. As a result

of PennGear’s wrongful refusal and continuing refusal to pay ACSA for the forgings it received,

ACSA ceased manufacturing forgings for PennGear and filed its lawsuit against PennGear. 

5. Approximately ten (10) months after the commencement of the lawsuit in the

Western District of Pennsylvania by ACSA, PennGear commenced this separate action, alleging

two causes of action, one for conversion and one for unjust enrichment/quantum meruit. In

Case 2:02-cv-04359-MAM Document 5 Filed 09/30/2002 Page 2 of 5
3.

support of these claims, PennGear alleges that ACSA has ceased to manufacture new forgings

for PennGear and that ACSA has wrongfully retained the tooling used by ACSA to process those

forgings and has used that tooling in the manufacture of forgings for other companies. 

6. PennGear’s claims involve the same legal and factual issues as ACSA’s

Western District action and arise out of the same contractual relationship.

7. As a result, PennGear’s claims constitute compulsory counterclaims which

should have been filed as part of ACSA’s Western District action. Therefore, this lawsuit should

be dismissed or, alternatively, should be transferred to the Western District.

WHEREFORE, ACSA Steel Forgings, S.p.A. respectfully requests that this

Honorable Court dismiss Plaintiff’s complaint. 

Respectfully submitted,

ELDERKIN, MARTIN, KELLY & MESSINA

By 

 Craig A. Markham, Esquire

 150 East Eighth Street

 Erie, Pennsylvania 16501

 (814) 456-4000

Case 2:02-cv-04359-MAM Document 5 Filed 09/30/2002 Page 3 of 5
4.

CATALDE & BRADFORD

Robert J. Catalde, Esquire

731 French Street

Erie, Pennsylvania 16501

(814) 451-6236

 Attorneys for Defendant

Case 2:02-cv-04359-MAM Document 5 Filed 09/30/2002 Page 4 of 5
CERTIFICATE OF SERVICE

I certify that on the ______ day of September, 2002, I served a copy of the

Motion to Dismiss on the following individuals and in the manner indicated below:

U.S. First Class Mail, Postage Prepaid:

Mohammad Ghiasuddin, Esquire

Kaplin, Stewart, Meloff, Reiter & Stein

350 Sentry Parkway

Building 640

P.O. Box 3037

Blue Bell, Pennsylvania 19422

Attorney for Plaintiff

Respectfully submitted,

ELDERKIN, MARTIN, KELLY & MESSINA

By 

 Craig A. Markham, Esquire

 Attorney for Defendant

 150 East Eighth Street

 Erie, Pennsylvania 16501

 (814) 456-4000

Case 2:02-cv-04359-MAM Document 5 Filed 09/30/2002 Page 5 of 5