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F. Bender, Inc. v. Jos. L. Muscarelle

July 16, 1997

F. BENDER, INC. T/A FLAGSHIP CONSTRUCTION, PLAINTIFF-APPELLANT,
v.
JOS. L. MUSCARELLE, INC. AND THE HERTZ CORPORATION, DEFENDANTS-RESPONDENTS, AND TRI-GEE DEVELOPMENT CO., INC., DEFENDANT.



On Appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication September 19, 1997.

Before Judges Dreier and Villanueva. The opinion of the court was delivered by VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).

The opinion of the court was delivered by: VILLANUEVA

The opinion of the court was delivered by

VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).

Plaintiff, F. Bender, Inc. t/a Flagship Construction, appeals from a summary judgment dismissing its complaint for a quantum meruit recovery for construction work it performed as sub-subcontractor at the Hertz facility at Newark International Airport. We affirm.

J.L.M. Phoenix Construction Corp. entered into a prime contract with The Hertz Corporation to construct a parking deck and customer service building at Newark International Airport. Jos. L. Muscarelle, Inc., the assignee of the contract, acted as the general contractor on the Project. As general contractor, Muscarelle entered into a subcontract agreement with the Tri-Gee Development Co., Inc. Pursuant to this subcontract agreement, Tri-Gee was to perform all of the concrete work for the Project. Tri-Gee, in turn, subcontracted a portion of its work on the Project to the plaintiff as a sub-subcontractor.

Plaintiff claims to have performed $139,733.50 worth of concrete foundation work at the Hertz facility. Apparently, a dispute arose between Tri-Gee and plaintiff concerning payments due to plaintiff from Tri-Gee for work completed by plaintiff on various projects, including the Hertz facility.

Due to Tri-Gee's failure to perform its subcontract agreement with Muscarelle adequately, Muscarelle terminated its agreement with Tri-Gee and hired another subcontractor to complete the concrete work on the Project. No contract exists between either Muscarelle and plaintiff or Hertz and plaintiff. Furthermore, neither Muscarelle nor Hertz has taken any action which could be construed as forming any type of contractual relationship with plaintiff.

When Tri-Gee refused to pay plaintiff, plaintiff sued Muscarelle and Hertz to obtain payment on a quasi-contractual basis. Tri-Gee was joined as a defendant, and a default has been entered against Tri-Gee.

Muscarelle and Hertz moved for summary judgment to dismiss the complaint against them. The trial court rejected plaintiff's claims of unjust enrichment and third party incidental beneficiary and relied upon Insulation Contracting & Supply v. Kravco, Inc., 209 N.J. Super. 367, 507 A.2d 754 (App. Div. 1986), as "controlling authority almost on all fours," in dismissing plaintiff's complaint.

On appeal, plaintiff argues that it is entitled to maintain a direct cause of action against Muscarelle and Hertz on a theory of unjust enrichment. Although the complaint alleges that a contractual relationship exists between plaintiff and the defendants, none exists. Therefore, plaintiff has no cause of action against either Muscarelle or Hertz based upon a contract.

We know of no case where the statutory protections given to a subcontractor or sub-subcontractor by filing a notice of intention or stop notice could be replicated by a common law claim based upon quantum meruit. Such a rule would create havoc in the construction industry. See Insulation Contracting & Supply v. Kravco, Inc., supra, (denying similar reimbursement in a claim by a sub-subcontractor against the prime contractor after the subcontractor for whom the plaintiff had performed defaulted).

In this case, Hertz had an obligation to pay its contractor, and, Muscarelle, the contractor, had an obligation to pay its subcontractor, Tri-Gee, who in turn had an obligation to pay plaintiff, its subcontractor. When plaintiff performed, it had a claim only against Tri-Gee unless it filed a notice of intention or stop notice in compliance with the Mechanics' Lien Law. It is true that Hertz and/or ...


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