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Sparwick Contracting, Inc. v. Tomasco Corporation

November 08, 2000

SPARWICK CONTRACTING, INC.,
PLAINTIFF-RESPONDENT,
V.
TOMASCO CORPORATION,
DEFENDANT-RESPONDENT,
AND
CARL WALKER CONSTRUCTION GROUP, INC.,
DEFENDANT-APPELLANT,
AND
LEFRAK ORGANIZATION, INC.,
DEFENDANT.



Before Judges Pressler, Kestin and Ciancia.

The opinion of the court was delivered by: Kestin, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 17, 2000

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County.

Defendant Carl Walker Construction Group, Inc. (Walker), a Michigan corporation with headquarters in Pittsburgh, Pennsylvania, appeals on leave granted from the provision of the trial court's interlocutory order of May 15, 2000, which directed a consolidated arbitration to proceed in the State of New Jersey; and from the trial court's declination to award sanctions in the form of counsel fees pursuant to R. 1:4-8. As to both issues, we affirm.

Walker had been retained as the general contractor on a construction project in Jersey City known as the "Newport South Parking Garage Vertical Expansion" (the project). Walker, in turn, contracted with defendant Tomasco Corporation (Tomasco), a New Jersey corporation, to perform as a subcontractor on the project. Exhibit A of the contract described Tomasco's obligations under the subcontract as involving specified work under the headings of

Select Demolition

Masonry

Caulking/Sealant (Labor only)

Carpentry

Two-Way, Post-Tensioned Deck.

Article 12.1 of the contract between Walker and Tomasco contained an "agreement to arbitrate" all disputes between them arising from the contract in accordance with the Construction Industry Arbitration Rules . . . of the American Arbitration Association ("AAA") and under the auspices of the AAA. The arbitration shall take place in Pittsburgh, Pennsylvania, and . . . . the arbitrators . . . shall apply Pennsylvania law without reference to any choice of law rules. * * * This agreement to arbitrate is specifically enforceable.

This suit commenced on November 6, 1999, when Sparwick Contracting, Inc. (Sparwick), a New Jersey corporation, filed a complaint against Tomasco, Walker, and LeFrak Organization, Inc. (LeFrak), the presumed owner of the property. The complaint alleged that Sparwick had performed work on the project by way of furnishing services and providing materials, pursuant to a contract with Tomasco "for the installation of reinforcing steel and post tension operation" for an agreed-upon price of $46,700 and extras amounting to $29,148; and that Tomasco had paid no portion of the $75,848 due. Tomasco has represented that Sparwick "is not a party to any written agreement regarding the project[.]" It has been undisputed throughout that whatever the nature of the agreement between Sparwick and Tomasco, it did not contain an arbitration provision.

As to Tomasco, Sparwick's complaint alleged, in addition to breach of contract, causes of action on account stated, book account, quantum meruit/unjust enrichment, "additional damages" of $15,000, and consumer fraud including a claim for treble damages and statutory attorneys fees. As to Walker, the complaint alleged all the causes of action pleaded against Tomasco except for breach of contract. As against LeFrak, the ...


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