On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-957-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Simonelli and Hayden.
In this construction case, plaintiff, Structural Steel Fabricators, Inc. (SSF), appeals the November 15, 2010 order of the trial court dismissing SSF's verified complaint and granting the motion of defendant, LaConti Masonry & Concrete, Inc., to compel arbitration before the American Arbitration Association (AAA) and to consolidate the matter with two other disputes that were subject to arbitration. We affirm.
The dispute in this matter arises from the construction of the Speedway Elementary School in Newark. The general contractor for the project was Delric Construction Company, Inc., which entered into a $33,626,000 contract with the New Jersey Schools Development Authority for the construction of the school. On October 22, 2007, Delric entered into a subcontract with LaConti to provide masonry and concrete services for the project, and on March 11, 2008, it entered into a subcontract with SSF to fabricate and erect structural steel and miscellaneous items. Both subcontracts stated:
Except as provided in paragraph 24.2 below, any and all disputes or claims arising out of and/or related to the Subcontract and the performance of the Work at the Project, shall be decided solely in the Superior Court of New Jersey and venue in any such action must be placed in the County of Passaic.
Notwithstanding the above, any claims, disputes or other issues arising out of and/or related to the Subcontract and the performance of the work may, at Delric Construction Company, Inc.'s sole option, be decided in binding arbitration administered by the American Arbitration Association in accordance with its Construction Industry Arbitration and Mediation rules. . . .
Each of the two subcontracts also contained a provision that stated:
In the event the Work of the Subcontractor is damaged, or should the Work of the Subcontractor be delayed or interfered with by any other subcontractor or other contractor on the Project, the Subcontractor and each such subcontractor or contractor shall be directly responsible to the other, each shall look solely to the other for compensation, and the Subcontractor will not seek compensation or damages from Delric Construction Company, Inc. by reason thereof.
The subcontract between Delric and SSF contained scheduling provisions that included a June 9, 2008 commencement date for the erection of structural steel and a final anticipated completion date of July 20, 2009, established to permit the school to be occupied during the 2009-10 school year. To obtain portions of the steel for the project, SSF entered into a subsub-contract with Consolidated Systems, Inc.(CSI). Subsequent to the execution of that contract, CSI informed SSF of an increase in the price of the steel of over thirty percent. The Schools Development Authority declined to authorize the increase. As a result, SSF refused to pay the additional cost, and CSI refused to deliver the steel. In response, SSF filed an order to show cause and verified complaint against CSI seeking damages for breach of contract and an order compelling delivery of the steel. By order dated June 25, 2008, the court entered a preliminary injunction against CSI compelling it to deliver all materials specified in the agreement with SSF by a date certain. The materials were delivered over a period of several months.
SSF filed an amended complaint on November 5, 2008, and on December 5, 2008, CSI filed an answer, counterclaim and third-party complaint against Delric. Thereafter, on February 26, 2009, SSF filed a second amended complaint naming as defendants, among others, Delric and its two principals, Biagio Della Cerra and Robert Ricciardi. In that complaint, SSF alleged that it was damaged by CSI's refusal to deliver materials and by the defective nature of the materials when delivered. SSF also alleged nonpayment of monthly requisitions by Delric as well as nonpayment by it for work performed that was outside the scope of that required by the contract. SSF asserted causes of action against Delric for breach of contract, violation of the Prompt Payment Act, amounts due on a book account, breach of the covenant of good faith and fair dealing, unjust enrichment/ quantum meruit, violation of the Trust Fund Act, conversion, and fraud. The last three causes of action were also asserted against Delric's principals.
Invoking the arbitration provision of its contract with SSF, Delric
successfully moved for dismissal of the action against it,*fn1
with referral of the matter to arbitration. SSF appealed from
the order of dismissal, and we affirmed the trial court's order in an
unpublished opinion. ...