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[U] Scungio Borst & Associates v. Shurs Lane Developers, LLC

Superior Court of Pennsylvania

October 4, 2013

SCUNGIO BORST & ASSOCIATES, Appellants
v.
SHURS LANE DEVELOPERS, LLC AND KENWORTH II, LLC., Appellees

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered September 30, 2010 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 946 November Term, 2008

BEFORE: BENDER, J., BOWES, J., and STRASSBURGER, J. [*]

MEMORANDUM

BENDER, J.

Scungio Borst & Associates (SBA) appeals from the September 30, 2010 order that granted summary judgment in favor of Robert DeBolt (DeBolt), a fifty percent shareholder in 410 Shurs Lane Developers, LLC (410 SLD).[1] After review, we vacate the order granting summary judgment and remand the case for further proceedings.

Judge McInerney provided the following factual and procedural history of the case:

[SBA] acted as general contractor on a condominium construction project, which was owned by defendant 410 Shurs Lane Developers, LLC ("410 SLD"). Mr. DeBolt was a principal of 410 SLD. [SBA] performed its construction services pursuant to a written contract between it and 410 SLD. [SBA] also performed $2.6 million in additional work under the contract as directed by 410 SLD and Mr. DeBolt. [SBA] was not paid for approximately $1.5 million in additional work, so it filed this lawsuit against 410 SLD, Mr. DeBolt, and others. 1
1 The claims against the other parties were either dismissed, settled, tried, or discontinued, and they are not at issue in this appeal.
In its Fourth Amended Complaint, [SBA] asserted claims against 410 SLD and Mr. DeBolt for breach of contract, for violation of the Contractor and Subcontractor Payment Act ("CASPA"), [73 Pa.C.S. §§ 501-516, ] and for unjust enrichment. Mr. DeBolt filed a Motion for Summary Judgment as to those claims, which Judge Sheppard granted. The remaining claims against 410 SLD and another defendant 2 were tried before this court, and [SBA] obtained a judgment against both of those defendants for approximately $1.9 million.
2 The other entity is Kenilworth II, LLC, which purchased the condominium property at sheriff's sale. It is also owned by Mr. DeBolt.

Trial Court's Opinion, 12/14/12, at 1-2.

On July 12, 2012, a final order was issued in the case, entering judgment in favor of SBA and against 410 Shurs and Kenworth II, LLC (Kenworth) for $1, 979, 341. SBA's appeal only concerns the court's grant of summary judgment in favor of DeBolt.

In its appeal, SBA raises the following issue for our review:
1. Did the lower court commit an error of law or abuse its discretion in granting summary judgment to DeBolt under CASPA, where:
(a) CASPA makes the owner (410 [SLD]) and the "agent of the owner acting with the owner's authority" (DeBolt) liable to contractors such as SBA,
(b) DeBolt is a fifty percent owner of 410 [SLD],
(c) SBA consistently dealt with DeBolt and received his authorizations for change orders, and
(d) SBA never received payment for the change orders?

SBA's brief at 3.

"Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion." Universal Health Services, Inc. v. Pennsylvania Property and Casualty Insurance Guaranty Assoc., 884 A.2d 889, 892 (Pa.Super. 2005) (citation omitted).
The entry of summary judgment is proper whenever no genuine issue of any material fact exists as to a necessary element of the cause of action. The moving party's right to summary judgment must be clear and free from doubt. We examine the record, which consists of all pleadings, as well as any depositions, answers to interrogatories, admissions, affidavits, and expert reports, in a light most favorable to the non-moving party, and we resolve all doubts as to the existence of a genuine issue of material fact against the moving party.
LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 647 (Pa. 2009) (citations omitted).

Krapf v. St. Luke's Hospital, 4 A.3d 642, 649 (Pa.Super. 2010), appeal denied, 34 ...


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