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Appalachian Bible College v. Foremost Industries

United States District Court, M.D. Pennsylvania

April 17, 2018




         Plaintiff, 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.


         Foremost 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. ( ¶ 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).

         On or 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 ¶ 13).

         On 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).


         ABC 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).

         On May 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 accordingly.


         Summary 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)).

         Initially, 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).

         A court 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).

         IV. ...

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