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PROJECT DEVELOPMENT GROUP v. O.H.

May 2, 1991

PROJECT DEVELOPMENT GROUP, INC., PLAINTIFF,
v.
O.H. MATERIALS CORP., DEFENDANT.



The opinion of the court was delivered by: Lee, District Judge.

  MEMORANDUM OPINION

This case is before the Court on a Motion for Summary Judgment by defendant, O.H. Materials Corp., (OHM), which contends that all claims asserted by plaintiff, Project Development Group, Inc. (PDG) are devoid of material issues of fact and should be decided in favor of OHM as a matter of law.

FACTS

In 1987, the Olin Chemical Corp. (Olin) decided to demolish its unused chemical facility in Moundsville, West Virginia. Environmental regulations required that the residue of hazardous chemicals and the asbestos and other insulating materials in the plant be removed and transported for disposal before the demolition could be done.

OHM was one of the contractors on Olin's list of those approved to submit bids for the decontamination and insulation removal at the Moundsville plant. OHM submitted a joint proposal with an insulation contractor known as Biscraft/Brand (Brand) to Olin during the first round of bidding. Olin advised OHM that the insulation bid submitted by Brand was high.

After the first round of bids, Olin decided to entertain lump sum bids favoring a single contractor for both phases of the project. OHM contends that the delay resulting from Olin's decision to rebid afforded it the opportunity to do its own estimates on the insulation phase of the project. Though OHM considered bidding the entire project itself, it decided to solicit bids from two other insulation contractors, Ameral-Neumayer (Ameral) and PDG.

In March of 1988, OHM's representatives twice met with PDG's Vice President, David D'Appolonia (D'Appolonia). At the first meeting, on March 2, D'Appolonia expressed an interest in submitting a bid to OHM, but claimed it would do so only if OHM agreed to use PDG on an exclusive basis if OHM was awarded the Olin contract. OHM contends that their representatives told D'Appolonia there would be no exclusive contract, but PDG could submit a bid as any subcontractor would.

At the second meeting on March 10, D'Appolonia met with Steve Smith (Smith), OHM's Midwest Region Manager, and Doug Marquart (Marquart), a Project Development Coordinator with OHM. OHM contends that Smith and Marquart reiterated that there would be no exclusive agreement with PDG. At that time, Smith allegedly informed D'Appolonia that OHM had estimated the project itself, and was considering submitting its own bid to self-perform the insulation removal phase of the project. PDG was allegedly informed that it could submit a bid for consideration as any other subcontractor.

On Monday, March 14, 1988, D'Appolonia again spoke with Marquart, and Marquart allegedly informed him that OHM had not heard from Ameral. PDG alleges that D'Appolonia was then told that PDG's bid would be in OHM's proposal. Following this telephone conversation, D'Appolonia telecopied PDG's prices to OHM.

After OHM received and evaluated the various bid proposals, OHM submitted its own lump sum bid on the decontamination and asbestos removal phase of the project to Olin without any references to any subcontractor. OHM contends that it utilized public governmental regulations, as well as portions of PDG's asbestos removal procedures*fn1 as part of its bid package. In June of 1988, Olin awarded the lump-sum contract to OHM. OHM self-performed both phases of the project utilizing its own work force, and without the use of any subcontractor.

In August of 1988, PDG learned that OHM had secured the contract from Olin and had begun self performing the asbestos/insulation removal. PDG immediately contacted OHM, demanding that it honor its agreement with PDG. OHM denied the existence of any agreement, and PDG filed suit for breach of contract.

During discovery of the breach of contract action, PDG learned that OHM had copied portions of PDG's bid proposal verbatim and had submitted it to Olin as its own work. PDG alleges that the bid submitted by OHM as its own, was essentially a "cut and paste" product derived from PDG's proposal. PDG further contends that OHM copied verbatim from PDG's written technical approach and appropriated other trade secrets and proprietary information which PDG had shared with OHM on a confidential basis.

PDG then brought an additional action against OHM for copyright infringement, misappropriation of trade secrets, conversion, and unjust enrichment. The two cases before the Court*fn2 were consolidated, discovery was completed, and the summary judgment motion filed pursuant to Rule 56(c) of the Federal Rules of Civil Procedure*fn3 is ready for disposition.

In interpreting Rule 56(c), the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.CT. 2548, 91 L.Ed.2d 265 (1986) has ruled that:

  "The plain language . . . mandates entry summary
  judgment, after adequate time for discovery and
  upon motion, against a party who fails to make a
  showing sufficient to establish the existence of
  an element essential to that party's case, and on
  which that party will bear the burden of proof at
  trial. In such a situation, there can be `no
  genuine issue as to any material fact,' since a
  complete failure of proof concerning an essential
  element of the non-moving party's case necessarily
  renders all other facts immaterial."
  Celotex, 477 U.S. at 322-323, 106 S.Ct. at 2552.

An issue of material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Incorporated, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of identifying for the Court those portions of the record which it believes demonstrate the absence of a material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. To overcome the movant's assertion that there is no material issue of fact, the opposing party must point to specific evidence. Williams v. Borough of West Chester, 891 F.2d 458, 463-64 (3d Cir. 1989).

BREACH OF CONTRACT

In its Motion for Summary Judgment, OHM contends that no oral contract was formed, PDG's bid proposal was merely an offer which was not accepted, and that the ...


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