Free Complaint - District Court of Delaware - Delaware

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________ BRENDAN WARD MASONRY, INC. : : Plaintiff : : : : v. : : WU & ASSOCIATES, INC. : : Defendant : ___________________________________ :

BREACH OF CONTRACT

JURY TRAIL DEMANDED CIVIL NO.

COMPLAINT Plaintiff, Brendan Ward Masonry, Inc., by and through its attorneys, DeVlieger Hilser P.C., brings this complaint against Defendant, WU & Associates, Inc., and avers as follows: PARTIES 1. Plaintiff, Brendan Ward Masonry, Inc. (hereinafter "Ward") is a corporation

organized and existing under the laws of the Commonwealth of Pennsylvania, was formerly licensed as a contractor/subcontractor with the City of Wilmington, Delaware, with its principal place of business at 345 Oak Terrace, Radnor, PA 19087. 2. Defendant, Wu & Associates, Inc. (hereinafter "Wu") is a corporation organized

under the laws of the State of New Jersey with its principal place of business at 597 Deer Road, Cherry Hill, New Jersey 08034. JURISDICTION 3. Jurisdiction exists in this case because there is complete diversity of citizenship

between the parties as required by 28 U.S.C. § 1332 and the amount in controversy, exclusive of costs and interests, exceeds $150,000.00. 1

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VENUE 4. Venue is proper in the District of Delaware pursuant to 28 U.S.C. § 1391 because

a substantial part of the events, acts or omissions giving rise to the claim occurred in this District. Furthermore, a substantial part of the property that is the subject of the contract for the project involved in this action is located in this District. BACKGROUND AND GENERAL ALLEGATIONS 5. On or about August 2001, Wu entered into a written contract with the Department

of Labor for the United States of America as the general contractor for work to be performed for a federal construction project, number 0102, at the Wilmington Job Corps Center, 9 Vandever Avenue, Wilmington, Delaware 19802. 6. On or about April 2002, Ward entered into a Subcontractor Agreement

with Wu to furnish labor, equipment, materials and perform masonry work for the aforementioned federal project. A true and correct copy of which is attached hereto and incorporated herein as Exhibit "A." 7. The Subcontractor Agreement provided for a guaranteed maxim contract price of

$950,000.00 and further provided that this price would be increased in the event that certain conditions or modifications were instituted pursuant to Change Orders. See Exhibit A. 8. Agreement. 9. 10. 11. Wu has failed to perform its obligations under the Subcontractor Agreement. Wu has failed to fully pay Ward pursuant to the Subcontractor Agreement. Wu's failure to perform its obligations under the Subcontractor Agreement has Ward substantially performed all of its obligations under the Subcontractor

caused Ward to suffer damages in excess of $200,000.00. 2

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12.

On December 16, 2004, for the substantial consideration of agreeing to

withdraw and dismiss its claims against both Ward and the Surety, Ward entered into a Tolling Agreement with Wu suspending any and all "statutes of limitations, laches periods, or similar defenses" pursuant to the scheduling of a future arbitration. See Exhibit "B," a true and correct copy of which is attached hereto and incorporated herein. 13. Wu refused to arbitrate Ward's claims pursuant to the Tolling Agreement,

forcing Ward to file this litigation. 14. Wu's failure to arbitrate Ward's claims under the Tolling Agreement has caused

Ward to suffer the aforementioned damages in addition to increased costs and attorney's fees. COUNT I (Breach of the Contractual Obligation) 15. Plaintiff, Ward, hereby incorporates paragraphs 1 through 14 as though same

were fully set forth at length herein. 16. The original Subcontractor Agreement between Wu and Ward for the

aforementioned federal project provided for a maximum contract price of $950,000.00. 17. 18. 19. This amount was to be supplemented and modified by various "Change Orders." Ward substantially performed its obligation under the Subcontractor Agreement. Wu has failed and refused to perform its duties under the Subcontractor

Agreement causing Ward to suffer substantial losses. 20. As the direct result and proximate result of the Wu's failure to perform its duties

under the Subcontractor Agreement, Ward suffered extended overhead, loss of production, lost profits, additional production costs, additional operating costs, substantial wage increases and substantial cash shortages in excess of $200,000.00.

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WHEREFORE, Brendan Ward Masonry, Inc. demands judgment in its favor and against Defendant, Wu & Associates, Inc., in excess of $200,000.00 together with interest and costs, attorney's fees, delay damages, consequential damages and punitive damages where appropriate. COUNT II (Breach of the Contractual Obligation- Cardinal Change Doctrine) 21. Plaintiff, Ward, hereby incorporates paragraphs 1 through 20 as though same

were fully set forth at length herein. 22. The original Subcontractor Agreement between Wu and Ward for the

aforementioned federal project provided for a maximum contract price of $950,000.00. 23. 24. This amount was to be supplemented and modified by various "Change Orders." Wu breeched the Subcontractor Agreement by effectuating monumental changes

in the required work that forced Ward to perform duties substantially different in scope than the originally contemplated Subcontractor Agreement. These changes included, but are not limited to: a. Wu's substantial and indefinite delays which caused Ward to "stand by," effectively preventing him from obtaining other work; Wu's inefficiency in scheduling which caused substantial and indefinite delays that directly effected Ward's ability to work on the project; Wu's inefficiency in its construction methods and procedures which caused substantial and indefinite delays that directly effected Ward's ability to work on the project; Wu's inability to coordinate other workers whose performance was a prerequisite to Ward's own performance which caused substantial and indefinite delays that directly effected Ward's ability to work on the project.

b.

c.

d.

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e.

Wu's inability to pay Ward on a timely basis pursuant to the Subcontractor Agreement which caused Ward to borrow substantial funds in order fulfill his obligations to its workers and suppliers.

25.

The aforementioned changes were completely within the manipulation of Wu and

were so significant that they were not covered under the Change Order clause of the Subcontractor Agreement causing Ward to suffer substantial losses. 26. As the direct result and proximate result of the above, Ward suffered extended

overhead, loss of production, lost profits, additional production costs, additional operating costs, substantial wage increases and substantial cash shortages in excess of $200,000.00. WHEREFORE, Brendan Ward Masonry, Inc. demands judgment in its favor and against Defendant, Wu & Associates, Inc., in excess of $200,000.00 together with interest and costs, attorney's fees, delay damages, consequential damages and punitive damages where appropriate. COUNT III (Breach of the Contractual Obligation- Tolling Subcontractor Agreement 27. Plaintiff, Ward, hereby incorporates paragraphs 1 through 26 as though same

were fully set forth at length herein. 28. In reliance on the Tolling Agreement, Ward withdrew and dismissed

its claims against Wu's Surety pending in the United States Federal Court for the District of Delaware. 29. Pursuant to the Tolling Agreement, Wu agreed to the suspension of all "statutes

of limitations, laches periods, or similar defenses" and agreed to arbitrate Ward's claims at a later date. See Exhibit B. 30. Wu has refused to arbitrate Ward's claims pursuant to the Tolling Agreement.

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31.

Wu's refusal to abide by the Tolling Agreement has caused Ward to suffer

damages in excess of $200,000.00 in addition to increased costs and attorney's fees. WHEREFORE, Brendan Ward Masonry, Inc. demands judgment in its favor and against Defendant, Wu & Associates, Inc., in excess of $200,000.00 together with interest and costs, attorney's fees, delay damages, consequential damages and punitive damages where appropriate. COUNT IV (Bad Faith) 32. Plaintiff, Ward, hereby incorporates paragraphs 1 through 31 as though same

were fully set forth at length herein. 33. As subcontractor to Wu on the aforementioned project, Ward was unjustly

prevented from performing its obligations under the contract in an efficient and productive manner. 34. After contracting with Ward for $950,000.00 in the Subcontractor Agreement,

Wu, after the scheduled start date, unjustly and without explanation, submitted various change orders removing previously agreed to items from the Subcontractor Agreement, including, but not limited to, various stone piers and walls. 35. 36. These changes reduced the Subcontractor Agreement to $834,354.91. Wu's inexplicit changes were willful and malicious, done in bad faith for the

purpose of punishing Ward and to create an unjust economic windfall for Wu. 37. Pursuant to the Subcontractor Agreement, Ward was also supposed to start on the

project in June 2002. 38. Wu knew or should have known that he would not be ready for Ward to begin

work on the project in June 2002.

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39.

Wu willfully, intentionally, maliciously and in bad faith, misled Ward in order to

avoid the added cost of finding another subcontractor for the later start date. 40. Additionally, Wu repeatedly thwarted Ward from performing his duties under the

Subcontractor Agreement. 41. Wu repeatedly throughout the course of the project, also, refused to provide

proper drawings and clarifications so Ward could complete its obligation under the Subcontractor Agreement. 42. Wu repeatedly throughout the course of the project, also, failed to provide

adequate water supply, essential for Ward to perform its obligations under the Subcontractor Agreement. 43. Wu, also, repeatedly prevented Ward from starting and completing various duties

under the Subcontractor Agreement because other work within the dominion and control of Wu was incomplete, unfinished and/or improperly scheduled by Wu. 44. Wu, also, repeatedly refused to attend meetings with Ward and various masonry

material providers concerning masonry issues and concerns. 45. The above foregoing conduct by Wu was willful, malicious, done in bad faith and

designed to coerce Ward to surrender his legal rights, with the intent to wrongfully terminate Ward from the project. 46. As a direct and proximate result of the above actions, Ward has suffered damages

in excess of $200,000.00. WHEREFORE, Brendan Ward Masonry, Inc. demands judgment in its favor and against Defendant, Wu & Associates, Inc., in excess of $200,000.00 together with interest and costs, attorney's fees, delay damages, consequential damages and punitive damages where appropriate. 7

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COUNT V (Unjust Enrichment) 47. Plaintiff, Ward, hereby incorporates paragraphs 1 through 46 as though same

were fully set forth at length herein. 48. As subcontractor to Wu on the aforementioned project, Ward suffered

considerable losses as a result of Wu's substantial and indefinite delays and Wu's inability to perform its obligations under the Subcontractor Agreement. 49. As general contractor to the written contract with the Department of Labor for the

United States of America on the aforementioned Wilmington Job Corp Center project, has received substantial amounts of money from the United States Government pursuant to the contract and various claims against said contract. 50. Upon information and belief, Ward as subcontractor to Wu on the project, is not

entitled to pursue administrative claims before the United States Court of Claims. 51. Any and all compensation received by Wu as a result of any final payments or

claims adjudicated pursuant to the contract, which are directly or indirectly related to the services performed by Ward pursuant to the Subcontractor Agreement between Wu and Ward, has unjustly enriched Wu to Ward's detriment. WHEREFORE, Brendan Ward Masonry, Inc. demands judgment in its favor and against Defendant, Wu & Associates, Inc., in excess of $200,000.00 together with interest and costs, attorney's fees, delay damages, consequential damages and punitive damages where appropriate. COUNT VI (Quantum Meruit) 52. Plaintiff, Ward, hereby incorporates paragraphs 1 through 51 as though same

were fully set forth at length herein. 8

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53.

The original Subcontractor Agreement between Wu and Ward for the

aforementioned federal project provided for a maximum contract price of $950,000.00. 54. Orders." 55. Ward performed various services at the request of Wu for the aforementioned This amount was to be supplemented and modified by various "Change

federal project which were above and beyond the scope of those services specifically enumerated in the Subcontractor Agreement. 56. Ward performed these services with the explicit understanding that Wu would pay

for said services by way of various Change Orders. 57. Wu has refused to pay for these additional services causing Ward to sustain

damages in excess of $200,000.000. WHEREFORE, Brendan Ward Masonry, Inc. demands judgment in its favor and against Defendant, Wu & Associates, Inc., in excess of $200,000.00 together with interest and costs, attorney's fees, delay damages, consequential damages and punitive damages where appropriate.

ABER, GOLDLUST, BAKER & OVER

/s/ Perry F. Goldlust PERRY F. GOLDLUST, ESQUIRE (DSB #770) 702 King Street, Ste. 600 P.O. Box 1675 Wilmington, DE 19899-1675 (302) 472-4900; (302) 472-4920 (FAX) [email protected] Attorney for Plaintiff Brendan Ward Masonry, Inc DATED: November 21, 2007

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Of Counsel: JOHN E. HILSER, ESQUIRE DEVLIEGER HILSER, P.C. 1518 Walnut Street, 16th Floor Philadelphia, PA 19102 (215) 735-9181; (215) 735-9186 (FAX) [email protected]

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