United States District Court, M.D. Pennsylvania
E. JONES III UNITED STATES DISTRICT JUDGE
Appalachian Bible College (“ABC”) brought this
action, in part, to enforce a gift agreement in which
Defendant, Foremost Industries pledged $4, 000, 000 to ABC in
five equal, annual payments. Presently pending before the
Court is ABC's Motion for Summary Judgment. (Doc. 48).
Because Foremost Industries failed to respond to the Motion
by the deadline we set in our March 16, 2018, Order, (Doc.
52), we will consider the Motion unopposed and will consider
the Motion accordingly.
Industries has not opposed ABC's statement of facts, so
we treat the facts as undisputed. Sometime prior to May 29,
2015, Foremost Industries, a Pennsylvania corporation, agreed
to a donor commitment of $4, 000, 000 with ABC, a non-profit
educational institution incorporated in the State of West
Virginia. (Doc. 48-4, ¶ 1). The Gift Agreement was
executed by Ralph C. Michael, then president of Foremost
Industries, and Dr. Daniel Anderson, president of ABC.
(Id.at ¶ 3). Under the agreement, Foremost
Industries would satisfy the pledge in five equal payments of
$800, 000 per year from April 1, 2016, through April 1, 2020.
(Id. at ¶ 5). The Gift Agreement provided that
the commitment would be legally binding and enforceable
against “Donor and the Donor's successors and
permitted assigns.” (Id. at ¶ 6).
about May 29, 2015, Mr. Michael, as president, director, and
sole shareholder of Foremost Industries, and Marjorie
Michael, also a member of the board of directors, executed a
unanimous written consent that ratified the Gift Agreement.
(Id. at ¶ 7). The same day, GLD Foremost
Holdings (“GLD”) entered into a stock purchase
agreement with Mr. Michael to purchase all issued and
outstanding shares of common stock of Foremost Industries.
(Id. at ¶ 11). The Stock Purchase Agreement
specifically acknowledges the Gift Agreement as a continuing,
binding legal obligation of Foremost Industries.
(Id. at ¶ 12). GLD, now the sole shareholder of
Foremost Industries, then executed a unanimous written
consent that again ratified and affirmed the Gift Agreement
between Foremost Industries and ABC. (Id. at ¶
April 1, 2016, and April 1, 2017, Foremost Industries failed
to make its first two payments under the Gift Agreement.
(Id. at ¶ 17). Furthermore, Foremost Industries
has indicated to ABC that it does not intend to make the
future payments owing under the Gift Agreement. (Id.
at ¶ 18).
initiated this action by filing a Complaint in the Southern
District of West Virginia on July 28, 2016. (Doc. 1). ABC
stated claims of breach of contract, anticipatory breach of
contract, conversion, and unjust enrichment. ABC also sought
a temporary restraining order and a preliminary injunction to
prevent Foremost Industries from selling off assets. On
August 9, 2016, District Judge Irene S. Berger denied
ABC's request for a temporary restraining order and
subsequent preliminary injunction. (Doc. 8). On September 12,
2016, Foremost Industries moved to transfer venue to the
Middle District of Pennsylvania, (Doc. 15), which was granted
on January 31, 2017. (Doc. 25).
1, 2017, ABC filed an Amended Complaint, which essentially
recaptioned its original complaint for the Middle District of
Pennsylvania. (Doc. 40). Foremost Industries filed its Answer
on January 17, 2018. (Doc. 47). ABC filed the present Motion
for Summary Judgment on January 31, 2018, (Doc. 48), followed
by a brief in support on February 12, 2018. (Doc. 49).
Foremost Industries has failed to file a brief in opposition
to the Motion. On March 16, 2018, the Court ordered Foremost
Industries to file an opposition brief no later than April
16, 2018, due to concerns that Foremost Industries was
engaging in dilatory tactics by repeatedly seeking leave to
obtain new counsel. (Doc. 52). Despite the clear language of
our Order, and our warning that failure to file an opposition
brief would result in our considering the Motion as
unopposed, Foremost Industries has not filed its brief in
time. We therefore shall dispose of ABC's Motion
STANDARD OF REVIEW
judgment is appropriate if the moving party establishes
“that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A dispute is
“genuine” only if there is a sufficient
evidentiary basis for a reasonable jury to find for the
non-moving party, and a fact is “material” only
if it might affect the outcome of the action under the
governing law. See Sovereign Bank v. BJ's Wholesale
Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A court should view the facts in the light most
favorable to the non-moving party, drawing all reasonable
inferences therefrom, and should not evaluate credibility or
weigh the evidence. See Guidotti v. Legal Helpers Debt
Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013)
(citing Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000)).
the moving party bears the burden of demonstrating the
absence of a genuine dispute of material fact, and upon
satisfaction of that burden, the non-movant must go beyond
the pleadings, pointing to particular facts that evidence a
genuine dispute for trial. See Id. at 773 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
In advancing their positions, the parties must support their
factual assertions by citing to specific parts of the record
or by “showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1).
should not grant summary judgment when there is a
disagreement about the facts or the proper inferences that a
fact finder could draw from them. See Reedy v.
Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing
Peterson v. Lehigh Valley Dist. Council, 676 F.2d
81, 84 (3d Cir. 1982)). Still, “the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment.” Layshock ex rel. Layshock v.
Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011)
(quoting Anderson, 477 U.S. at 247-48) (internal
quotation marks omitted).