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Bill Goodwin Construction, LLC v. Wondra Construction, Inc.

United States District Court, M.D. Pennsylvania

April 10, 2014



JAMES M. MUNLEY, District Judge.

Before the court are defendants' motions to dismiss (Docs. 56, 58 & 62) and strike (Docs. 54, 59) pursuant to Federal Rules of Civil Procedure 12.[1] The motions are fully briefed and ripe for disposition.


This case arises from a dispute over oral construction contracts pertaining to the construction of a wind farm (hereinafter the "Mehoopany Windmill Project" or "project") in Wyoming County, Pennsylvania. Defendants BP Wind Energy North America, Inc. (hereinafter "BP"), Mehoopany Wind Energy, LLC (hereinafter "Mehoopany Wind Energy") and Sempra U.S. Gas & Power (hereinafter "Sempra") were partners in a joint venture to construct the Mehoopany Windmill Project. (Doc. 48, Am. Compl. (hereinafter "Am. Compl.") ¶¶ 3, 5, 11). These partners hired Defendants Renewable Energy Systems Americas Inc. and RES America Construction Inc. (collectively "RES") to act as the general contractor. (Id. ¶ 12). RES, in turn, hired Defendant Wondra Construction, Inc. (hereinafter "Wondra") as a subcontractor. (Id. ¶ 13). Finally, Wondra hired Plaintiff Bill Goodwin Construction, LLC (hereinafter "plaintiff") as its subcontractor. (Id. ¶ 14).

Oral agreement between plaintiff and Wondra

In November 2011, Wondra entered into an oral agreement with plaintiff, which required plaintiff to deliver stone and other material in addition to providing equipment and services for the construction of roadways for the project. (Id. ¶¶ 14-15). Subsequent to this agreement, plaintiff hired its own subcontractors to assist in the delivery of stone and other material. (Id. ¶ 15).

Under the terms of this oral agreement, Wondra agreed to pay plaintiff ten dollars and fifty cents ($10.50) for each ton of material delivered. (Id. ¶ 16). Plaintiff avers that this tonnage price covered the actual cost of material, valued at five dollars and fifty cents ($5.50) a ton, and the hauling/delivery costs of five dollars ($5.00) per ton. (Id. ¶ 17). This oral agreement did not include the hourly truck time for use of plaintiff's trucks.

Safety meeting

During the first month of the oral agreement, plaintiff met with representatives of BP, Mehoopany Wind Energy and Wondra. (Id. ¶ 18). At this meeting, Michael Kelly, BP Safety Engineer, discovered that Wondra was only paying plaintiff by the ton. (Id.) Plaintiff claims that Kelly, on behalf of BP, demanded that plaintiff and all other delivery trucks be paid by the hour in addition to material by the ton. (Id. ¶¶ 19, 21) (emphasis added). Specifically, Kelly stated that "if this condition was not met, plaintiff and the other delivery trucks would not be able to haul on the job." (Id. ¶ 20). Evidently, Kelly was concerned that if the haulers were only paid by the ton, they would have an incentive to travel as quickly as possible between hauls, which could create safety hazards. (Id. ¶ 22). Additionally, Kelly demanded this change to comply with BP and Mehoopany Wind Energy's internal procedures. (Id. ¶ 23).

Oral modification of plaintiff's oral agreement with Wondra

Subsequent to this meeting, plaintiff and Wondra agreed to modify their initial oral agreement. (Id. ¶ 24). Wondra agreed to pay plaintiff by the ton as well as by the hour so as to ensure the continued safety of all parties involved in the project. (Id. ¶ 25) (emphasis added). In exchange for slower and safer hauling, Wondra agreed and promised that it would pay plaintiff five dollars ($5.00) to seven dollars ($7.00) per ton and seventy-five dollars ($75.00) to ninety dollars ($90.00) an hour for truck time. (Id. ¶¶ 25-26).

Plaintiff, in turn, modified the payment arrangements with its subcontractors. Specifically, plaintiff made arrangements to pay its subcontractors an hourly rate between seventy-five dollars ($75.00) and ninety dollars ($90.00). (Id. ¶ 28). Plaintiff's subcontractors, however, would no longer receive a tonnage rate in addition to truck time. (Id.)

Plaintiff performed its duties pursuant to the oral agreement and oral modification and submitted invoices to Wondra in June and July 2012. (Id. ¶¶ 30-31). Plaintiff alleges Wondra failed to remit full and complete payment even though RES and/or BP, Mehoopany Wind Energy and Sempra paid Wondra. (Id. ¶¶ 34, 36). Plaintiff claims the unpaid invoices amount to $1, 911, 382.91. (Id. ¶ 35).

Oral agreement between plaintiff and RES

Plaintiff also claims that it entered into a separate and distinct oral agreement with RES in June 2012. (Id. ¶ 37). Specifically, RES agreed and promised to pay plaintiff to provide both the necessary stone material and deliver this material for the completion of the roadways within the project. (Id. ¶¶ 37-38). This stone material was in addition to and separate from the work and materials plaintiff was to provide pursuant to plaintiff's oral agreement and oral modification with Wondra. (Id. ¶ 40).

RES agreed to pay plaintiff ten dollars and fifty cents ($10.50) for each ton of stone material delivered and plaintiff's drivers eighty dollars ($80.00) an hour for any downtime experienced while on the project site. (Id. ¶ 37). Plaintiff provided $115, 705.63 in materials and services for the project at the direction and request of RES. (Id. ¶ 41). RES accepted plaintiff's materials and services. (Id. ¶ 42). BP, Mehoopany Wind Energy and Sempra have paid RES for work related to the project. (Id. ¶ 46). RES, however, has refused to pay plaintiff. (Id. ¶¶ 43-44).

Procedural history

Based upon these facts, plaintiff filed an eight-count complaint asserting several causes of action. On August 5, 2013, the court allowed only plaintiff's breach of contract claim to proceed against Defendants Zurich and Fidelity. (Doc. 36, Mem. & Order dated Aug. 5, 2013). The court dismissed all remaining counts and allowed plaintiff to file an amended complaint. (Id.)

After two (2) court approved 30-day extensions, plaintiff filed a timely amended complaint on October 11, 2013. Plaintiff's amended complaint asserts the following causes of action: Count One, breach of contract against Wondra; Count Two breach of contract against RES; Count Three, promissory estoppel against Wondra; Count Four, promissory estoppel against RES; Count Five, promissory estoppel against BP and Mehoopany Wind Energy; Count Six, tortious interference with contractual relations against BP and Mehoopany Wind Energy; Count Seven, agency relationship against BP, Mehoopany Wind Energy, Sempra, RES and Wondra; Count Eight, unjust enrichment against BP, Mehoopany Wind Energy, Sempra, RES and Wondra; Count Nine, Pennsylvania's Contractor and Subcontractor Payment Act claim against Wondra; Count Ten, Pennsylvania's Contractor and Subcontractor Payment Act claim against RES; and Count Eleven, breach of contract against Zurich and Fidelity.

The defendants now move to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 56, 58 & 62). Additionally, BP, Mehoopany Wind Energy and Sempra move to strike Count Six, tortious interference with a contract and Count Seven, agency relationship from plaintiff's amended complaint. (Doc. 54). RES also moves to strike Count Seven from plaintiff's amended complaint. (Doc. 59). The parties then briefed the issues bringing the case to its present posture.


The court has jurisdiction pursuant to the diversity statute, 28 U.S.C. § 1332.[2] Because complete diversity of citizenship exists between the parties and the amount in controversy exceeds $75, 000, the court has jurisdiction over this case. See 28 U.S.C. § 1332 ("district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States[.]"); 28 U.S.C. § 1441 (A defendant can generally remove a state court civil action to federal court if the federal court would have had original jurisdiction to address the matter pursuant to the diversity jurisdiction statute). As a federal court sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa , 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins , 304 U.S. 64, 78 (1938)).

Standard of Review

Defendants filed their motions to dismiss plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of the complaint's allegations when considering a Rule 12(b)(6) motion. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.'" Colburn v. Upper Darby Twp. , 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York , 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe "enough facts to raise a reasonable expectation that discovery will reveal evidence of' [each] necessary element" of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35. In evaluating the sufficiency of a complaint the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc. , 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997)).


BP, Sempra, Mehoopany Wind Energy, Wondra and RES have filed three motions to dismiss plaintiff's amended complaint. (Docs. 56, 58 & 62). Collectively, they seek to dismiss all of plaintiff's claims.[3] Additionally, BP, Sempra, Mehoopany Wind Energy and RES have filed motions to strike plaintiff's claims for tortious interference with contract and agency relationship. (Docs. 54, 59). Therefore, the ...

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