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Allegheny Construction Group, Inc. v. Walsh Heery Joint Venture

United States District Court, E.D. Pennsylvania

December 30, 2019

ALLEGHENY CONSTRUCTION GROUP, INC., Plaintiff,
v.
WALSH HEERY JOINT VENTURE, Defendant.

          MEMORANDUM

          Joyner, Judge

         Presently 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.

         Factual Background

         Plaintiff 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).

         The 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).

         Plaintiff 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.)

         Defendant 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.)

         Lastly, the parties dispute the proper retainage amount. (Doc. No. 13-1 at 4, 19-22; Doc. No. 15-1 at 14-15.)

         Analysis

         Jurisdiction

         Subject 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).

         Legal Standard

         To 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.

         Once 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).

         “The 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).

         Still, 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 ...


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