Opinion
J-S51013-15 No. 746 EDA 2015
09-09-2015
TECTON CORP., INC. Appellant v. LIBERTY MUTUAL INSURANCE COMPANY Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered February 19, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): February Term, 2014, No. 01446
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Tecton Corporation, Inc. ("Tecton") appeals from the summary judgment entered in the Philadelphia County Court of Common Pleas, in favor of Appellee, Liberty Mutual Insurance Company ("Liberty Mutual"). We affirm.
The relevant facts and procedural history of this case are as follows. On December 2, 2010, the city of Philadelphia awarded a public construction contract to J.S. Cornell & Son, Inc. ("JSC"). The contract called for JSC to renovate the Police Tactical Headquarters located at 660 East Erie Avenue in Philadelphia. On December 10, 2010, JSC secured surety bonding for the project from Liberty Mutual. In the event that JSC failed to make payment to subcontractors, the bond specified the Public Works Contractors' Bond Law of 1967 would govern the claimant's rights. On July 11, 2011, JSC awarded two subcontracts to Tecton for masonry and carpentry work for $149,600.00 and $87,614.00, respectively, totaling $237,214.00. JSC sent emails to Tecton while Tecton was still working on the project in January 2012, requesting Tecton to send JSC bills for the work Tecton had done. Tecton did not send JSC any bills at that time. Tecton sent JSC a non-itemized form invoice for both subcontracts on September 14, 2012. Tecton completed the work prior to or around early November 2012. Tecton did not send JSC a written invoice upon completion of the project, though Tecton's owner testified he had telephone conversations regarding payment with the president and the vice president of JSC.
Over one year later, on December 2, 2013, Tecton's owner sent an email to JSC, requesting payment for Tecton's work on the subcontracts. JSC failed to pay Tecton for any of its work on the completed subcontracts. On December 23, 2013, JSC sent a letter to Tecton, informing Tecton that JSC would be going out of business on January 1, 2014. Tecton's counsel contacted JSC on December 29 and 30, 2013, to inquire about payment. JSC did not return the calls or emails.
Tecton filed a demand for arbitration on December 31, 2013, with the American Arbitration Association. The arbitration demand named both JSC and Liberty Mutual as respondents. Liberty Mutual received service of the arbitration demand on January 7, 2014. On February 7, 2014, Tecton's counsel received a letter from Liberty Mutual, dated January 31, 2014, informing Tecton that the arbitration agreement in the contract between JSC and Tecton was not binding on Liberty Mutual. The letter also stated the Public Works Contractors' Bond Law of 1967 governed Tecton's claim. This law required Tecton to bring an action for nonpayment within one (1) year and ninety (90) days after its work ceased on the construction project. The letter noted that one year and ninety days had elapsed since Tecton finished its work on the project.
Tecton then filed a writ of summons against Liberty Mutual on February 14, 2014, and filed a complaint on February 28, 2014. Following preliminary objections by Liberty Mutual, Tecton filed an amended complaint on May 13, 2014. Liberty Mutual re-filed preliminary objections on June 3, 2014. The court overruled Liberty Mutual's new preliminary objections on July 15, 2014. Liberty Mutual filed an answer to Tecton's complaint on August 1, 2014.
On November 17, 2014, Liberty Mutual filed a motion for summary judgment. Tecton filed a motion in opposition to summary judgment on December 18, 2014, and Liberty Mutual filed a reply on December 30, 2014. The court granted summary judgment in favor of Liberty Mutual on February 19, 2015. Tecton timely filed a notice of appeal on March 10, 2015. The court did not order a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Tecton filed none.
Tecton raises one issue for our review:
WHETHER THE TRIAL COURT COMMITTED A REVERSIBLE ERROR OF LAW OR ABUSED ITS DISCRETION WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF LIBERTY MUTUAL INSURANCE COMPANY AND AGAINST [TECTON] WHERE THERE WAS A GENUINE ISSUE OF MATERIAL FACT OUTSTANDING AS TO WHETHER THE APPLICABLE STATUTE OF LIMITATIONS HAD BEEN TOLLED?(Tecton's Brief at 4).
Tecton argues a genuine issue of material fact exists in this case to preclude summary judgment. Specifically, Tecton claims JSC's representatives knew the company was unable to pay Tecton, although JSC repeatedly promised payment. Tecton contends it reasonably relied on JSC's promises, and JSC committed fraud. Tecton asserts Liberty Mutual's surety relationship with JSC makes Liberty Mutual liable for JSC's fraud. Tecton concedes it filed its action against Liberty Mutual more than one year and ninety days after it completed work on the project, but Tecton avers it is entitled to equitable tolling of the statute of limitations due to JSC's fraud. Tecton maintains the question of whether JSC's fraud tolled the statute of limitations is a jury question. Tecton concludes the trial court erred by granting summary judgment to Liberty Mutual, and this Court should remand for a trial. We disagree.
Our standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347 (Pa.Super. 2006).
Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure.Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal citations omitted). Our scope of review is plenary. Pappas v. Asbel , 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court's grant of summary judgment,
[W]e apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.Chenot v. A.P. Green Services , Inc., 895 A.2d 55, 61 (Pa.Super. 2006) (internal citations and quotation marks omitted) (emphasis added).
Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of [a] cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of
action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court's conclusions of law, but may reach our own conclusions.
Following a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Pamela Pryor Dembe, we conclude Tecton's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of Appellant's legal question. ( See Trial Court Opinion, filed February 18, 2015, at 2-8) (finding: statute specifies bond claims must be brought within one year and ninety days after subcontractor completes work; Tecton's right to collect from Liberty Mutual under bond lasted only for relevant statute of limitations period; Tecton admits it missed technical deadline for filing its bond claim; JSC's assurances of payment are irrelevant because Tecton knew it was not being paid and could have sued Liberty Mutual on bond before statute of limitations expired; no factual or legal basis exists to toll applicable statute of limitations with respect to Liberty Mutual). We agree. The record supports the court's decision. Nothing in the record demonstrates Tecton requested payment from JSC in writing for over one year, until December 2, 2013, despite having finished the project at the latest in very early November 2012. Tecton admittedly filed its civil claim against Liberty Mutual on February 14, 2014, more than one year and ninety days after Tecton had completed work on the project. Tecton knew JSC had not paid Tecton, Tecton knew Liberty Mutual held the bond, Tecton knew the time constraints for suing on the bond, yet Tecton failed to sue on the bond in a timely manner. JSC's alleged promises of payment cannot be imputed to Liberty Mutual, because Liberty Mutual made no direct promises to pay Tecton. See generally Gurenlian v. Gurenlian , 595 A.2d 145 (Pa.Super. 1991) (holding promise to pay and acknowledgment of indebtedness must be unequivocal and unconditional to toll statute of limitations); Manganas Printing C., Inc. v. Joseph Bucheit and Sons Co., 601 F.Supp. 776 (W.D.Pa. 1985) (stating contractor's assurances of payment did not prevent bond claim from accruing against surety; contractor's assurances of payment did not estop surety from raising statute of limitations defense, where surety's obligations were defined solely by bond). Thus, we affirm on the basis of the trial court's opinion.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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