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Home My WebLink About97-1496 Civil (2)LANE ENTERPRISES, INC., Plaintiff Vo SPEARIN, PRESTON & BURROWS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-1496 CIVIL TERM IN RE: PLAINTIFF'S RENEWED MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., HESS and OLER. JJ. ORDER OF COURT AND NOW, this I~{['tay of July, 1998, after careful consideration of Plaintiff's Renewed Motion for Summary Judgment, Plaintiff's motion is GRANTED as to Count I of Plaintiff's complaint (breach of contract). Judgment is hereby entered as to that count in favor of Plaintiff Lane Enterprises, Inc., and against Defendant Spearin, Preston & Burrows, Inc., in the amount of $53,800.00, together with interest sec. leg. from January 14, 1995, and costs of suit. BY THE COURT, -.f "/'- Wesley Oler,~., J. - John B. Consevage, Esq. Buchanan Ingersoll, P.C. 30 North Third Street 8th Floor Harrisburg, PA 17101 Attorney for Plaintiff Marc E. Elliot, Esq. Goetz, Fitzpatrick, Carbone, Eiseman, Finegan & Rubin, LLP One Penn Plaza New York, NY 10119-1096 Attorney for Defendant LANE ENTERPRISES, INC., Plaintiff SPEARIN, PRESTON & BURROWS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-1496 CIVIL TERM IN RE: PLAINTIFF'S RENEWED MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER~ P.J.. HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., July , 1998. In this civil case, a subcontractor has sued a contractor on theories of breach of contract, promissory estoppel, and unjust enrichment. The action arises out of Defendant's failure to pay Plaintiff for cleaning and coating (with epoxy) a certain piece of equipment; the equipmentI was owned by the City of New York, Department of Sanitation, with which Defendant had contracted. For disposition at this time is a motion for summary judgment filed on behalf of Plaintiff as to count one of the complaint, the breach of contract claim. STATEMENT OF FACTS and PROCEDURAL HISTORY In early December, 1994, Defendant Spearin, Preston & Burrows, Inc. (Spearin) ~ The equipment is described in Plaintiff's complaint as a "spare anchor shaft super boom ("the Super Boom") for the Fresh Kills Landfill Plant No. 1 on Staten Island, New York." NO. 97-1496 CIVIL TERM contacted PlaintiffLane Enterprises, Inc. (Lane) to solicit a bid for the application of a fusion bond epoxy coating to a large steel anchor shaft (the "Super Boom") used as a containment boom at the Fresh Kills Landfill operated by New York City.2 On December 6, 1994, Lane submitted a written proposal to Spearin, with a contract price of $53,800.00.3 Spearin accepted Lane's proposal by returning a purchase order to Lane with a purchase price of $53,800.00.4 The purchase order did not contain specific language concerning the time payment would be due? Lane performed the contract work by January 9, 1995, returning the Super Boom to the Fresh Kills Landfill on or about January 14, 1995.6 Spearin concedes that Lane performed the work in accordance with applicable technological standards.7 Despite Lane's fulfillment of the contract, Spearin has failed to pay Lane for its work. 2 The relationship between Defendant Spearin, Preston & Burrows, Inc., and Plaintiff Lane Enterprises, Inc., can best be described as a general contractor-subcontractor relationship. 3 Plaintiff's Exhibit 8, Deposition of Patrick B. Kelleher, Defendant's designee, by Plaintiff, October 21, 1997 (hereinafter Plaintiff's Exhibit __). 4 Plaintiff's Exhibit 7. 5/d. 6 Plaintiff's Deposition of Patrick B. Kelleher, October 21, 1997, at 56-57 (hereinafter N.T. __); Plaintiff's Exhibit 11. 7 N.T. 71-73. 2 NO. 97-1496 CIVIL TERM Lane commenced the present action on March 24, 1997, by filing a complaint alleging that Lane had properly performed the work and seeking damages in the amount of the contract price plus prejudgment interest. Lane eventually filed a motion for summary judgment as to its contract claim. Lane's motion for summary judgment was denied on March 24, 1998, because of an inadequate record upon which to predicate a ruling. This order was without prejudice to Lane's right to file a new motion upon supple..mentation of the record. Atter the filing of record of a deposition of Defendant's designee, Patrick D. Kelleher, and exhibits thereto, Lane has renewed its motion for summary judgment. Defendant concedes that it has not made payment for the work, but contends that summary judgment should be denied because there exists a meritorious defense for its failure to pay. Specifically, Defendant maintains that payment was not due to Plaintiff until receipt by Defendant of its payment from the City of New York - a contingency that has never occurred. In this regard, Spearin suggests that its contention may be supported by industry or trade custom. DISCUSSION Under Pennsylvania Rule of Civil Procedure 1035.2, a motion for summary judgment may properly be granted: NO. 97-1496 CIVIL TERM (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. The record upon which a motion for summary judgment is to be decided includes pleadings, depositions, answers to interrogatori .es., admissions and affidavits, and qualifying expert reports. Pa. R.C.P. 1035.1. In the case subjudice, the record has been supplemented since disposition of Plaintiff's earlier motion and the renewed motion for summary judgment is ripe for review. "In order to form a contract, there must be an offer, acceptance and'consideration or mutual meeting of the minds." Yarnall v. Almy, . Pa. Super. , __, 703 A.2d 535, 538 (1997). The Superior Court has stated that "[a] usage of trade or industry custom may give precision to an otherwise indefinite contract." Ingrassia Construction Company, Inc. v. Walsh, 337 Pa. Super. 58, 69, 486 A.2d 478, 484 (1984). That same Court, however, examining the issue of the lack of a time-of-payment term in a construction subcontract, held that, "absent contractual terms to the contrary, payment is to occur upon completion of the job." Ingrassia Construction Company, Inc. v. Walsh, 337 Pa. Super. 58, 69, 486 A.2d 478, 4 NO. 97-1496 CIVIL TERM 484 (1984). In the case subjudice, both parties concede that there was a contract between Plaintiff and Defendant for the performance of services in exchange for monetary compensation. Defendant contends that, in the absence of an express contractual term concerning the time of payment, the court should look to industry or trade custom. In Pennsylvania, however, in the absence of a contract term addressing the time of payment, a presumption arises that payment is due upon completion of the contemplated work. Id. This court is of the view that, as a matter of law, Spearin was obligated to pay on the contract upon completion of the proper performance by Lane. There being no genuine issue of material of material fact outstanding in the case, summary judgment is appropriate as to Count I of Plaintiff's complaint (breach of contract). ORDER OF COURT AND NOW, this 13th day of July, 1998, upon careful consideration of Plaintiff's Renewed Motion for Summary Judgment, Plaintiff's motion is GRANTED as to Count I of Plaintiff's complaint (breach of contract). Judgment is hereby entered as to that count in favor of Plaintiff Lane Enterprises, Inc., and against Defendant Spearin, Preston & Burrows, Inc., in the amount of $53,800.00, together with interest sec. leg. from January 14, 1995, together with costs of suit. 5 NO. 97-1496 CIVIL TERM BY THE COURT, s/J. Wesley Oler, Jr., J. J. Wesley Oler, Jr., J. John B. Consevage, Esq. Buchanan Ingersoll, P.C. 30 North Third Street 8th Floor Harrisburg, PA 17101 Attorney for Plaintiff Marc E. Elliot, Esq. Goetz, Fitzpatrick, Carbone, Eiseman, Finegan & Rubin, LLP One Penn Plaza New York, NY 10119-1096 Attorney for Defendant :rc 6