United States District Court, E.D. Pennsylvania
before the Court are Defendant's Motion for Summary
Judgment, (Def. Motion for Summary Judgment, Doc. No. 12) and
Plaintiff's Motion for Partial Summary Judgment, (Pl.
Motion for Partial Summary Judgment, Doc. No. 13). For the
reasons that follow, the Motions will be granted in part and
denied in part.
Allegheny Construction Group, Inc. (“ACG”) brings
claims against Walsh Heery Joint Venture
(“WHJV”). (Pl. Complaint, Doc. No. 1.) Plaintiff
alleges breach of contract and violation of
Pennsylvania's Prompt Pay Act (“PPA”) 62
Pa.C.S.A. § 3901, et seq. and brings claims, in
the alternative, of unjust enrichment and quantum meruit.
(Doc. No. 1.) Defendant moves for summary judgment on all
claims, (Doc. No. 12), and Plaintiff moves for summary
judgment on its claims for payment of the retainage, the
backcharges pertaining to the laydown yard and site clean-up,
and relief under the PPA, (Doc. No. 13). Plaintiff seeks
damages of at least $995, 427.83, (Doc. No. 1 ¶18),
remedies under the PPA, (Doc. No. 13-1 at 18), and relief
through unjust enrichment, (Doc. No. 1 ¶33), and quantum
meruit, (id. ¶36).
following facts are undisputed: The Commonwealth Department
of General Services (“DGS”) hired Defendant to
complete a construction project (“Project”).
(See id. ¶¶5-6; Def. Statement of
Undisputed Facts, Doc. No. 12-5 ¶1.) Defendant then
entered into a subcontract with Plaintiff for a portion of
the Project. (Doc. No. 1 ¶7; Doc. No. 12-5 ¶3.) The
subcontract provides that Defendant may withhold from
Plaintiff a three-percent retainage for Plaintiff's
completed work until the Project is substantially complete.
(Doc. No. 13-1 at 3; Doc. No. 12-5 ¶¶2-3.)
Additionally, the subcontract contains a
“pay-if-paid” clause providing that Defendant
need not fully compensate Plaintiff until DGS pays Defendant.
(Doc. No. 13-1 at 3; Doc. No. 12-5 ¶¶2-3.) The
Project was delayed, (Doc. No. 13-1 at 2; Doc. No. 12-5
¶6), and Defendant has not paid the retainage to
Plaintiff, (Doc. No. 13-1 at 4; Doc. No. 15-5 ¶9).
claims that, according to DGS, Defendant is at least
partially responsible for the delay. (Doc. No. 13-1 at 2.)
Plaintiff contends that, because Plaintiff has satisfactorily
completed its work under the subcontract and because
Defendant, not Plaintiff, caused the delay, Defendant has
breached the subcontract and the PPA by refusing to pay the
retainage to Plaintiff. (Id. at 17.)
avers that, because DGS has not yet paid Defendant, (Doc. No.
13-1 at 3; Doc. No. 15-5 ¶8), and because Defendant did
not cause the delay, (Doc. No. 15-5 ¶7), Defendant is
rightfully withholding the retainage from Plaintiff. (Doc.
No. 15-1 at 2.)
the parties dispute the proper retainage amount. (Doc. No.
13-1 at 4, 19-22; Doc. No. 15-1 at 14-15.)
matter jurisdiction in this case is proper under 28 U.S.C.
§ 1332(a)(1), as Plaintiff and Defendant are citizens of
different states and the amount in controversy exceeds $75,
000. § 1332(a)(1). Because Defendant has litigated the
merits of its claim without contesting personal jurisdiction,
we may exercise personal jurisdiction over Defendant. See
Richard v. U.S. Airways, Inc., 2011 WL 248446, at *1
(E.D. Pa. Jan. 26, 2011).
obtain summary judgment, a movant must show “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). Disputes about “material”
facts are those that “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A
“genuine” dispute exists if the non-movant
establishes evidence “such that a reasonable jury could
return a verdict” in their favor. Id.
the movant meets its initial burden, the nonmoving party must
then “go beyond the pleadings and come forward with
specific facts showing that there is a genuine issue for
trial.” Santini v. Fuentes, 795 F.3d 410, 416
(3d Cir. 2015) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)) (internal
citations omitted) (emphasis omitted).
court must review the record ‘taken as a
whole.'” Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 150 (2000) (quoting
Matsushita, 475 U.S. at 587)). At summary judgment, we
must view the evidence and draw all inferences “in the
light most favorable to the party opposing the motion.”
Matsushita, 475 U.S. at 587 (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
See also Horsehead Indus., Inc. v. Paramount
Commc'ns, Inc., 258 F.3d 132, 140 (3d Cir. 2001).
the non-movant must show more than “[t]he mere
existence of a scintilla of evidence in support of . . . [the
non-movant's] position” to defeat a motion for
summary judgment. Anderson, 477 U.S. at 252. To
survive summary judgment, the specific facts set forth by the
non-movant must require resolution “only by a finder of
fact because they may reasonably be resolved in favor of
either party.” Id. at 250. The non-movant
“may not rest upon the mere allegations or denials of
the . . . pleading; its response . . . must set forth