# Novingers, Inc. v. A.J.D. Construction Co., Inc.

> District Court, M.D. Pennsylvania · March 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10410127

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10410127

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NOVINGER’S, INC., : CIVIL ACTION NO. 1:18-CV-1145
:
Plaintiff : (Judge Conner)
:
v. :
:
A.J.D. CONSTRUCTION CO., INC., :
:
Defendant :

MEMORANDUM
Plaintiff Novinger’s, Inc. (“Novinger’s”), advances claims for breach of
contract and quantum meruit against defendant A.J.D. Construction Co., Inc.
(“AJD”). AJD asserts a breach-of-contract counterclaim. Before the court are the
parties’ cross-motions for partial summary judgment.
I. Factual Background & Procedural History1
Novinger’s is a Pennsylvania corporation and specialty subcontractor
“engaged in furnishing and installing drywall, acoustical ceilings, metal studs, lath
and plaster, fireproofing, stucco, and exterior wall finishes on structural steel

1 Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” M.D. PA. L.R. 56.1. A party
opposing a motion for summary judgment must file a separate statement of material
facts, responding to the numbered paragraphs set forth in the moving party’s
statement and identifying genuine issues to be tried. Id. Unless otherwise noted,
the factual background herein derives from the parties’ Rule 56.1 statements of
material facts. (See Docs. 56-1, 62, 68, 75-9). To the extent the parties’ statements
are undisputed or supported by uncontroverted record evidence, the court cites
directly to the statements of material facts.
studs.” (Doc. 56-1 ¶¶ 1-2; Doc. 75-9 ¶¶ 1-2). AJD is a New Jersey corporation and a
general contractor engaged in construction. (Doc. 56-1 ¶¶ 4-5; Doc. 75-9 ¶¶ 4-5).
A. “Journal Squared” Project and Novinger’s-AJD Subcontract

AJD entered into a prime contract with Journal Square I Urban Renewal,
LLC (the “Owner”), regarding a project known as “Journal Squared - Tower I.”
(Doc. 56-1 ¶ 6; Doc. 75-9 ¶ 6; Doc. 61-37 (prime contract)). The Owner enlisted AJD
to assist in the development of a 53-story, high-rise building containing residential
units, mechanical space, retail space, and a parking structure. (Doc. 75-9 ¶ 6; see
Doc. 56-1 ¶ 6). We refer to this project as the “Journal Squared Project.” Three
sections of the building, the precise contours of which the parties dispute, are

relevant to the instant motions: the “Podium,” the “Tower,” and the “Mechanical
Room Area.”2 (Doc. 56-1 ¶¶ 7-10; Doc. 75-9 ¶¶ 7-10). The Podium is the lowermost
segment of the building; the Tower begins at the eighth floor and extends to the top
of the building; and the Mechanical Room Area is located near the top of the
building. (See Doc. 56-1 ¶¶ 7-10; Doc. 75-9 ¶¶ 7-10).

2 The parties and witnesses in this case refer to the Mechanical Room Area
interchangeably as the elevator machine room, the EMR, and the penthouse area.
(See, e.g., Doc. 56-1 ¶ 10; Doc. 75-9 ¶ 8).
AJD and Novinger’s executed a subcontract regarding the Journal Squared
Project.3 (See Doc. 57-1, Ex. A).4 Pursuant to the subcontract, Novinger’s agrees to
“design, fabricate, deliver and install a panelized exterior heavy gauge wall system

extending from elevation 77’8” to 572’7”. The exterior wall section details to
accommodate a panelized light gauge metal stud system, configured as a column
and slab cover that will bypass the edge of slab.” (Rider A ¶ 24; see also id. at 1).
The subcontract explains that “framing sizes and gauges will be determined by”
AJD’s engineer, and “stud gauges will vary depending on the most economical way
to achieve specified” criteria. (Id. ¶ 26). None of these criteria are intended to limit
Novinger’s’ scope of work. (Id. at 1). In return, AJD agrees to pay Novinger’s a

lump sum of $8,798,820. (See Subcontract, Art. 10 § 10.1).
Under the subcontract, AJD may “order changes in the Work consisting of
additions, deletions, and revisions.” (Rider C2, Art. 19 ¶ 19.1). This provision gives
AJD the right to
delete Work from the Contract for any reason whatsoever
and to direct other Subcontractors/Suppliers to perform
such work, and in such event Subcontractor/Supplier
shall have no claim against [AJD] or Owner for such
deletion of work or for breach of Contract. The Contract

3 There is a factual dispute over the date of execution of the subcontract.
AJD claims the parties executed the subcontract on or about July 30, 2014. (Doc. 62
¶ 39; Doc. 75-9 ¶ 19). Novinger’s maintains it delivered a signed contract to AJD on
October 29, 2014, (see Doc. 56-1 ¶ 40), and subsequently received a fully executed
copy from AJD on November 5, 2014, (id. ¶ 41; Doc. 68 ¶ 39). Given the plethora of
factual issues sub judice, this particular dispute is immaterial to the court’s
disposition. Obviously, it will be an additional matter for resolution by the
factfinder.

4 We cite to the subcontract herein as “Subcontract at __” or “Subcontract,
Art. __ § __” and to its multiple riders as “Rider __ at __” or “Rider ¶ __.”
Price and completion time requirements shall be adjusted
as set forth below to the extent that Owner in its sole
discretion agrees to such adjustment.

(Id.) Conversely, if Novinger’s has a claim against AJD, Article 5, Section 5.3
requires Novinger’s to “make all claims promptly . . . for additional cost, extensions
of time and damages for delays” in connection with the subcontract’s performance.
(Subcontract, Art. 5 § 5.3). A “claim” is a
demand or assertion by [AJD] or Owner seeking, as a
matter of right, adjustment or interpretation of Contract
terms, payment of money, extension of time, specific
performance, or other relief with respect to the terms of
the Contract. The term “Claim” also includes other
disputes and matters in question between the Owner and
[AJD] arising out of or relating to the Contract.

(Doc. 61-37, Art. 4 § 4.3.1 (prime contract); Subcontract, Art. 1 § 1.1).5
The subcontract also includes provisions governing AJD’s potential options
should Novinger’s fail to abide by its contractual obligations. As relevant here, AJD
may file “claims for the costs of services or materials provided due to [Novinger’s’]
failure” to perform after seven days’ notice that AJD intends to secure substitute
services or materials. (Id., Art. 3 § 3.3.2(.1)). The subcontract further requires AJD
to provide Novinger’s with written compilations of services and materials provided
in lieu, as well as their respective charges, by the fifteenth day of the month after
such provision. (Id. § 3.3.2(.2)). Alternatively, if Novinger’s “defaults or neglects” to

5 The subcontract incorporates by reference the prime contract and its terms.
(Subcontract, Art. 1 § 1.1). It also states that “[AJD] shall assume toward
[Novinger’s] all obligations and responsibilities that the Owner, under such
documents, assumes toward [AJD], and [Novinger’s] shall assume toward [AJD] all
obligations and responsibilities which [AJD], under such documents, assumes
toward the Owner and the Architect.” (Id., Art. 2).
perform its work, AJD may “make good such deficiencies and . . . deduct the
reasonable cost thereof from the payments” due, so long as it provides Novinger’s
five days’ notice “to commence and continue correction of such default or neglect

with diligence and promptness.” (Id. § 3.4).
Relatedly, the subcontract establishes a process by which AJD can withhold
payment from Novinger’s if Novinger’s fails to resolve claims arising from its
performance of the subcontract. “Before issuance of the final payment,
[Novinger’s], if required, shall submit evidence satisfactory to [AJD] that all
payrolls, bills for materials and equipment, and all known indebtedness connected
with the [Novinger’s’] Work have been satisfied.” (Subcontract, Art. 12 § 12.2). In

another section, the subcontract provides that AJD may refuse payment if there are
“[c]laims filed or evidence indicating probable filing or making of claims.” (Rider
C2, Art. 18 ¶¶ 18.8, 18.8.2). Article 18, Paragraph 18.17 of Rider C2 also permits
withholding upon “evidence of any unpaid obligation, lien or claims for which, if
established, [AJD] or Owner . . . might become liable.” (Id. ¶ 18.17).
To receive final payment, Novinger’s must submit “a full and final release

and waiver of all liens and claims in connection with the Work . . . by each
subcontractor or supplier who has performed work or supplied materials” on the
subcontractor’s or supplier’s behalf. (Id. ¶¶ 18.11, 18.11.1; see also id. ¶ 18.12).
Acceptance of final payment “shall constitute a release of Owner and [AJD] of and
from all liability” associated with the project. (Id. ¶ 18.12). Additionally,
“[a]cceptance of final payment by [Novinger’s] shall constitute a waiver of claims by
[Novinger’s], except those previously made in writing and identified by [Novinger’s]
as unsettled at the time of final application for payment.” (Subcontract, Art. 12 §
12.2).
The subcontract includes an integration clause stating that the “Subcontract

represents the entire and integrated agreement between the parties hereto and
supersedes prior negotiations, representations or agreements, either written or
oral.” (Id., Art. 1 § 1.1). It separately provides that the “agreement supersedes and
replaces all previous written and oral agreements, proposals, etc.” (Rider A ¶ 8; see
also Rider D ¶ 14 (“The subcontractor agrees this agreement supersedes, replaces
and voids all previous proposals, agreements whether verbal or written and is the
only agreement between both parties on record.”)).

B. Dispute Regarding Novinger’s Scope of Work
The parties each claim that preliminary negotiations and discussions inform
the scope of Novinger’s’ work. They agree that AJD originally intended to employ
Bamco, Inc. (“BAMCO”), as its subcontractor for part of the Journal Squared
Project. (Doc. 56-1 ¶ 16; Doc. 75-9 ¶ 16). They also agree that Novinger’s ultimately
replaced BAMCO. (Doc. 62 ¶¶ 6-8; Doc. 56-1 ¶¶ 16-18). They dispute, however, the

extent of the work BAMCO was intended to perform and, consequently, the role
Novinger’s was intended to assume. (Doc. 56-1 ¶¶ 17-18; Doc. 75-9 ¶¶ 17-18). James
Novinger, President of Novinger’s, explained in a declaration that BAMCO referred
Novinger’s to AJD because BAMCO could not complete the panel prefabrication
work on the Tower, but Novinger’s could. (Doc. 57-2, Ex. F ¶ 4).6
The parties engaged in extensive negotiations regarding the scope of

Novinger’s’ work. Novinger’s submitted five proposals to AJD over the course of
roughly two months which only add to the parties’ confusion about the scope of
performance under Novinger’s subcontract. In the first, dated February 26, 2014,
Novinger’s proposes only to “[f]urnish and install a panelized wall system extending
from elevation 77’8” to 572’7”.” (Doc. 61-7 at 1). Novinger’s notes that its proposal
“accommodate[s] a panelized light gauge metal stud system” that would “bypass
and attach to the structure.” (Id.) It also flags necessary framing and sheathing.

(Id.) On March 14, 2014, Novinger’s submitted its second proposal identifying these
same items, now under a “Tower Overview” heading, and similarly noting framing
and sheathing. (See Doc. 61-32 at 1). Unlike the earlier proposal, this one includes
Podium work. (See id.) Neither mentions the Mechanical Room Area. (See id.; see
also Doc. 61-7).
On March 15, 2014, Jayanti Patel, AJD’s Project Manager for the Journal

Squared Project, emailed Novinger’s and asked it to “provide colored evaluation
[drawings] indicating scope of [its] work.” (Doc. 62 ¶ 20 (alterations in original)). In

6 To the extent AJD claims that this evidence, which is based on
conversations with other individuals, must be excluded as inadmissible hearsay, we
are unpersuaded. “[H]earsay statements can be considered on a motion for
summary judgment if they are capable of being admissible at trial.” Fraternal Order
of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) (quoting
Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1275 n.17 (3d Cir.
1995)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
response, Novinger’s supplied a highlighted version of the building blueprint
identifying the space reaching up to 572’7” as within its scope of work. (Id. ¶¶ 21-23;
Doc. 61-33). AJD contends this highlighted portion encompasses the Mechanical

Room Area. (Doc. 62 ¶ 22). Novinger’s disputes whether these drawings are
accurate, complete, or up-to-date. (Doc. 68 ¶¶ 21-23).
Novinger’s submitted a third proposal on March 25, 2014, the relevant
portions of which did not materially change. (See Doc. 61-34 at 1). Like prior
iterations, this proposal does not expressly speak to the Mechanical Room Area.
(Id.) One month later, on April 25, 2014, Novinger’s submitted a fourth proposal,
which again describes a panelized wall system “extending from elevation 77’8” to

572’-7”.” (Doc. 61-35 at 1). Unlike the prior proposals, however, this one specifies
“exterior wall section details to accommodate a panelized light gauge metal stud
system, configured as a column and slab cover that will bypass the edge of slab.”
(Id.) It further specifies that Novinger’s “will provide imbeds for panel
attachment,” that “framing sizes and gauges will be determined by our engineer[,
and that] stud gauges will vary depending on the most economical way to achieve

specified deflection criteria.” (Id.) This proposal expressly excludes Podium work
and again fails to mention the Mechanical Room Area. (Id. at 2; Doc. 62 ¶ 30). On
May 5, 2014, Novinger’s submitted a fifth and final proposal which is substantially
similar to its April 25 proposal. (Doc. 61-36; Doc. 62 ¶ 32; Doc. 68 ¶ 32).
Before installing the system, Novinger’s submitted “shop drawings” to AJD
regarding its planned work. (Doc. 62 ¶ 52; Doc. 68 ¶ 52; Doc. 56-1 ¶ 35). According
to Novinger’s, it submitted these shop drawings in August and September of 2014,
and discussed those drawings with AJD in October of 2014. (Doc. 56-1 ¶¶ 35-37; Doc.
68 ¶¶ 52-53). Novinger’s then began installing the exterior panelized wall system.
(Doc. 62 ¶ 51; Doc. 68 ¶ 51; Doc. 56-1 ¶¶ 43-44). Roughly one year after Novinger’s

submitted its shop drawings, in September 2015, AJD asked Novinger’s why it had
not submitted shop drawings for the Mechanical Room Area. (Doc. 62 ¶¶ 53-54;
Doc. 68 ¶¶ 53-54; see also Doc. 56-1 ¶ 36). This factual dispute, among others, lead
inexorably to the instant litigation.
Subsequent to the dispute over Novinger’s scope of work, AJD enlisted
BAMCO and paid it $489,000 to perform work on the Mechanical Room Area. (Doc.
62 ¶¶ 59-60; Doc. 68 ¶¶ 59-60). AJD issued a “deduct change order” to Novinger’s in

the amount of $489,000. (Doc. 62 ¶¶ 61, 63; Doc. 68 ¶¶ 61, 63).
Upon completion of its perceived scope of work, Novinger’s submitted a
request for payment to AJD with an adjusted subcontract price of $9,425,282.19.
(Doc. 62 ¶¶ 68-70; Doc. 68 ¶¶ 68-70). Novinger’s executed a partial release for
payment on May 5, 2017. (Doc. 62 ¶¶ 73-74; Doc. 68 ¶¶ 73-74). AJD released
$8,856,294.80 in payment. (Doc. 62 ¶ 75; Doc. 68 ¶ 75). By letter dated June 9, 2017,

Novinger’s requested payment in the amount of $568,987.39, consisting of $14,497.52
in pay application fees and $554,489.87 in unpaid retainage. (Doc. 56-1 ¶ 52; Doc.
75-9 ¶ 52). Novinger’s has not provided contractually required close-out documents,
but states it is prepared to do so upon receipt of full payment. (Doc. 56-1 ¶ 58).
C. Novinger’s Claims for Extra Costs
After completing its work on the Journal Squared Project, Novinger’s
submitted a breakdown totaling $119,946.77 for costs associated with certain
cleaning work it performed. (Doc. 62 ¶ 76; Doc. 68 ¶ 76). Novinger’s also submitted
a breakdown totaling $171,352.53 for costs associated with removing and
reinstalling certain safety cables. (Doc. 62 ¶ 79; Doc. 68 ¶ 79).

D. AWMC-Novinger’s Dispute
AJD has purportedly withheld payment to Novinger’s in part because of a
$68,400 claim against Novinger’s by Architectural Window Manufacturing
Corporation (“AWMC”). (Doc. 56-1 ¶ 55; Doc. 75-9 ¶¶ 74-79). By letter dated
September 8, 2017, AWMC wrote to Novinger’s, demanding payment for costs
incurred due to a defective mockup by Novinger’s during the Journal Squared
Project. (Doc. 75-9 ¶ 76). AWMC notified AJD of this claim against Novinger’s. (Id.

¶ 77). As far as we are aware, AWMC’s claim remains pending. (See id. ¶ 78). On
July 31, 2020, AWMC’s counsel wrote to Novinger’s again, increasing its demand to
$100,900 for the same alleged failure. (Id. ¶ 79).
E. Procedural History
Novinger’s originally filed this case in the Court of Common Pleas of
Dauphin County, Pennsylvania, before AJD timely removed the matter to this

court. Novinger’s asserts claims for breach of contract and quantum meruit. AJD
asserts a reciprocal breach-of-contract counterclaim. Following a period of
discovery, Novinger’s and AJD both filed motions for partial summary judgment.
The motions are ripe for disposition.
II. Legal Standard
Through summary adjudication, the court may dispose of those claims that
do not present a “genuine dispute as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of
proof tasks the non-moving party to come forth with “affirmative evidence, beyond
the allegations of the pleadings,” in support of its right to relief. Pappas v. City of

Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The court is to view the evidence “in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This
evidence must be adequate, as a matter of law, to sustain a judgment in favor of the
non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89

(1986). Only if this threshold is met may the cause of action proceed. See Pappas,
331 F. Supp. 2d at 315.
Courts may resolve cross-motions for summary judgment concurrently. See
Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008); see also Johnson
v. FedEx, 996 F. Supp. 2d 302, 312 (M.D. Pa. 2014); 10A CHARLES ALAN WRIGHT ET
AL., FEDERAL PRACTICE AND PROCEDURE § 2720 (3d ed. 2015). When doing so, the

court is bound to view the evidence in the light most favorable to the non-moving
party with respect to each motion. FED. R. CIV. P. 56; Lawrence, 527 F.3d at 310
(quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).
III. Discussion
Before disposing of the pending motions, we must address two threshold
evidentiary issues raised by Novinger’s. Citing the best evidence rule and the
sham-affidavit doctrine, Novinger’s challenges a declaration submitted by Jayanti
Patel and certain factual assertions in AJD’s statement of material facts. (See, e.g.,
Doc. 72 ¶¶ 1- 9, 11, 13; Doc. 73 ¶ 1-7). We reject both challenges.
The best evidence rule provides that the “original writing, recording, or

photograph is required in order to prove its content unless these rules or a federal
statute provides otherwise.” FED. R. EVID. 1002. The best evidence rule, by its plain
terms, applies when attempting to prove the contents of a document. Here, the best
evidence rule is inapplicable because the referenced document has been produced.
See StoneCoat of Tex., LLC v. ProCal Stone Design, LLC, No. 4:17CV303, 2019 WL
9899920, at *14 (E.D. Tex. June 28, 2019) (citing I.F. v. Lewisville Indep. Sch. Dist.,
No. 4:14CV359, 2016 WL 7734555, at *7 (E.D. Tex. Dec. 1, 2016)); see also D’Angelo

v. United States, 456 F. Supp. 127, 131 (D. Del. 1978), aff’d, 605 F.2d 1194 (3d Cir.
1979) (“The rule is not applicable when a witness testifies from [p]ersonal
knowledge of the matter, even though the same information is contained in a
writing.”); cf. United States v. Miller, 248 F. App’x 426, 429 (3d Cir. 2007)
(nonprecedential) (“[A] party need only produce original documents if a witness
testifies to the actual content of a writing.”). Moreover, Patel’s declaration is not

offered to prove the contents of particular documents. The documents themselves
continue to serve as the definitive source. He simply offers his perspective and
recollection—based on his personal knowledge—of the documents and their
significance regarding the scope of the subcontract. If Patel’s statements are
inconsistent with certain documents, or any other evidence of record, this
inconsistency may be indicative of a factual dispute for the jury, but it does not
require exclusion of the declaration. The court concludes that Patel’s declaration
may be considered in the context of the parties’ Rule 56 motions. See Willis v. BW
IP Int’l Inc., 811 F. Supp. 2d 1146, 1155 (E.D. Pa. 2011) (citing, inter alia, D’Angelo,
456 F. Supp. at 131).

We likewise decline to apply the sham-affidavit doctrine. The sham-affidavit
doctrine allows courts—in their discretion—to disregard an affidavit at summary
judgment if it “contradicts earlier deposition testimony without a satisfactory or
plausible explanation” and a “genuine, material factual dispute exists.” Daubert
v. NRA Grp., LLC, 861 F.3d 382, 389, 391 (3d Cir. 2017) (citations omitted). AJD
offers plausible evidence-based explanations for purported discrepancies. (See
Doc. 80 at 13-16). Ultimately, those explanations may be unpersuasive or

undermined on a fuller record, but we decline to exercise our discretion to exclude
the statements at this stage of the litigation.
A. Breach of Contract
The parties agree that New Jersey law applies in this case. (See Doc. 61 at 6
n.2; Doc. 58 at 15 & n.3). Under New Jersey law, a movant asserting a breach of
contract must prove “first, that the parties entered into a contract containing

certain terms; second, that [the movant] did what the contract required [the
movant] to do; third, that [the nonmovant] did not do what the contract required
[the nonmovant] to do, defined as a breach of the contract; and fourth, that [the
nonmovant’s] breach, or failure to do what the contract required, caused a loss to
the [movant].” Globe Motor Co. v. Igdalev, 139 A.3d 57, 64 (N.J. 2016) (internal
quotations marks and citation omitted). In New Jersey, “[t]he polestar of
construction is the intention of the parties to the contract as revealed by the
language used, taken as an entirety.” Conway v. 287 Corp. Ctr. Assocs., 901 A.2d
341, 347 (N.J. 2006) (quoting Atl. N. Airlines v. Schwimmer, 96 A.2d 652, 656 (N.J.
1953)).

To determine the parties’ intent, courts may consider “the particular
contractual provision, an overview of all the terms, the circumstances leading up to
the formation of the contract, custom, usage, and the interpretation placed on the
disputed provision by the parties’ conduct.” Id. (quoting Kearny PBA Local # 21
v. Town of Kearny, 405 A.2d 393, 400 (N.J. 1979)). We also consider the purpose of
the contract. See Manahawkin Convalescent v. O’Neill, 85 A.3d 947, 958 (N.J. 2014)
(citation omitted). Additionally, “the subsequent conduct of the parties in the

performance of the agreement may serve to reveal their original understanding.”
Michaels v. Brookchester, Inc., 140 A.2d 199, 204 (N.J. 1958); see also RESTATEMENT
(SECOND) OF CONTRACTS § 202 (AM. LAW INST. 1981). “The construction of a written
contract is usually a legal question for the court, but where there is uncertainty,
ambiguity or the need for parol evidence in aid of interpretation, then the doubtful
provision should be left to the jury.” Schor v. FMS Fin. Corp., 814 A.2d 1108,

1113-14 (N.J. Super. Ct. App. Div. 2002) (quoting Brookchester, 140 A.2d at 203-04;
Garden State Bldgs. v. First Fid. Bank, 702 A.2d 1315, 1323 (N.J. Super. Ct. App.
Div. 1997)); see Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 420-21 (3d
Cir. 2013) (summary judgment improper under New Jersey law when “alternative
reading of the contested language suggested by [plaintiffs] was both reasonable and
supported by objective evidence of the parties’ intentions”).
1. Scope of the Subcontract
The parties vigorously dispute whether the Mechanical Room Area of the
building was within the scope of Novinger’s’ contractual duties. To inform that

scope, the parties refer to the subcontract’s plain language, their negotiations, and
the purpose for which AJD contracted Novinger’s.
We read contractual terms in accordance with their “plain and ordinary
meaning.” GMAC Mortg., LLC v. Willoughby, 165 A.3d 787, 794 (N.J. 2017) (citation
omitted). Specifically, we employ “the meaning that would be ascribed to [the
terms] by a reasonably intelligent person who was acquainted with all the operative
usages and circumstances surrounding the making of the writing.” YA Glob. Invs.,

L.P. v. Cliff, 15 A.3d 857, 862-63 (N.J. Super. Ct. App. Div. 2011) (quoting Deerhurst
Ests. v. Meadow Homes, Inc., 165 A.2d 543, 551 (N.J. Super. Ct. App. Div. 1960)). We
are also mindful that technical terms and words of art may carry with them a
unique meaning under the circumstances. See Deerhurst Ests., 165 A.2d at 551-52;
Borough of Lodi v. Passaic Valley Water Comm’n, No. A-4172-11T4, 2013 WL
6122592, at *5 (N.J. Super. Ct. App. Div. Nov. 22, 2013) (citing RESTATEMENT

(SECOND) OF CONTRACTS § 202(3)(b) (AM. LAW. INST. 1981)).
We start with the subcontract’s plain text. The subcontract’s “scope of work”
rider states that Novinger’s shall “design, fabricate, deliver and install a panelized
exterior heavy gauge wall system extending from elevation 77’8” to 572’7”. The
exterior wall section details to accommodate a panelized light gauge metal stud
system, configured as a column and slab cover that will bypass the edge of slab.”
(Rider A ¶ 24; see also id. at 1). Novinger’s argues that the phrase “panelized wall
system” is a term of art in this context that means “prefabricated units containing
several elements,” (Doc. 58 at 16; see also Doc. 57-2, Ex. C at 23; Doc. 57-2, Ex. D at
34), and could only apply to the Tower, not the Mechanical Room Area, (Doc. 58 at

17). AJD notes, however, that the subcontract limits Novinger’s’ responsibilities by
elevation (77’8” to 572’7”) and by design specification (“details to accommodate a
panelized light gauge metal stud system, configured as a column and slab cover that
will bypass the edge of slab”). (Rider A ¶ 24). In response, Novinger’s observes: the
Mechanical Room Area requires only skin cladding made of light gauge metal girt
system (i.e., metal paneling); the Mechanical Room Area does not bypass the edges
of slabs; and the metal skins applied to the Mechanical Room Area do not include

metal stud framing or sheathing, as indicated by the subcontract. (Doc. 58 at 16-18;
see Rider A ¶¶ 26, 28 (framing and sheathing)). In other words, Novinger’s argues
that AJD’s interpretation would render parts of the subcontract superfluous.
Neither party’s interpretation is patently unreasonable.
Evidence of the parties’ preliminary negotiations provides only limited
clarity. Between February 26, 2014, and May 5, 2014, Novinger’s submitted five

different work proposals to AJD. (Doc. 62 ¶¶ 9-34). Each proposal identified the
relevant scope of work to extend from elevation 77’8” to 572’7”, and none of them
affirmatively included or excluded the Mechanical Room Area. (Id.; see also Doc. 62
¶ 3).
All told, the extrinsic evidence of the parties’ intent points in several
directions. For every one of AJD’s points, Novinger’s has a counterpoint, and vice
versa. Our court of appeals has advised that we should deny summary judgment
when the parties offer “alternative reading[s] of the contested language” that are
“both reasonable and supported by objective evidence of the parties’ intentions.”
Mylan, 723 F.3d at 420-21. In sum, substantial ambiguity lies as to the contents,

meaning, and timing of the parties’ discussions regarding the Mechanical Room
Area work. Given the competing evidence, we will deny both parties’ motions
regarding the scope of Novinger’s’ responsibilities under the subcontract.
2. Notice Provisions
Novinger’s argues that AJD failed to give the necessary notice prior to
deducting payment. (Doc. 58 at 21). The parties agree that AJD issued a
“deduction” for the Mechanical Room Area work, (Doc. 62 ¶ 61; Doc. 68 ¶ 61), but

they dispute the application of certain notice provisions. Novinger’s contends the
notice requirements found in Article 3, Sections 3.3.2 and 3.4 govern such
deductions. (Doc. 58 at 21-22; Doc. 71 at 20-21). These sections require separate
five- and seven-day notice periods. Section 3.3.2 also requires that AJD provide a
compilation of costs. (Subcontract, Art. 3 §§ 3.3.2, 3.4). AJD rejoins that only Article
3, Section 3.4 applies. (Doc. 75 at 16-19). Section 3.4 permits deductions if AJD

provides notice “to commence or continue correction of such default or neglect with
diligence and promptness” and Novinger’s fails to cure the deficiency within five
days of receiving that notice. (Subcontract, Art. 3 § 3.4).
Novinger’s asserts that the term “claim” used in Section 3.3.2 necessarily
encompasses the deduction imposed by AJD. (Doc. 79 at 15-16). Consequently, the
notice provisions in Section 3.4 and Section 3.3.2 can coexist. Novinger’s cites the
definition of “claim” used in the prime contract—and incorporated into the
subcontract—to argue that the deduction constitutes a qualifying modification of
contract terms. (See id. (citing Doc. 61-37, Art. 4 § 4.3.1)). We disagree. Section 3.4
clearly applies to “deduct[ions],” while Section 3.3.2 clearly applies to affirmative

“claims” for expenses undertaken by AJD. The interpretation of “claim” proffered
by Novinger’s would render these two provisions duplicative, an interpretation we
are careful to avoid. See Penske Logistics, Inc. v. KLLM, Inc., 285 F. Supp. 2d 468,
474 (D.N.J. 2003) (citations omitted). AJD imposed a deduction from the amount
due under the subcontract; it did not issue a claim. (See Doc. 61-16). Section 3.4
therefore applies.
Despite our conclusion that only Section 3.4 applies, we find that a genuine

dispute exists as to AJD’s compliance with Section 3.4’s notice provisions. The
parties agree that, on October 29, 2015, a representative of AJD reached out to
Novinger’s regarding the latter’s declination of Mechanical Room Area work. (Doc.
62 ¶ 55; Doc. 68 ¶ 55). The parties, however, do not agree as to the effect of that
communication. AJD contends this communication is sufficient notice to
Novinger’s that it must either complete the work or be replaced; Novinger’s rejoins

that the notice provides no such indication. (Doc. 62 ¶ 55; Doc. 68 ¶ 55). A similar
dispute arises surrounding a November 5, 2015 email. (Doc. 62 ¶ 56; Doc. 68 ¶ 56).
The parties’ disagreement reflects a textbook factual dispute. Summary judgment
is therefore inappropriate.
3. AWMC-Novinger’s Dispute
Novinger’s seeks summary judgment with respect to AJD’s withholding of
payment based upon a separate dispute between Novinger’s and AWMC. (Doc. 58
at 22-23; Doc. 75 at 20-22). AJD invokes Article 18, paragraph 18.8 of Rider C2,
which provides that it may decline to pay if there is evidence of “[c]laims filed or
evidence indicating probable filing or making of claims.” (Rider C2, Art. 18 ¶ 18.8).7

AJD asserts that this language permits it to “withhold payment from Novinger’s if
there are any unresolved claims arising from Novinger’s work.” (Doc. 75 at 21
(emphasis added)). Novinger’s responds by invoking Article 18, paragraph 18.17 of
Rider C2, which gives AJD the right to withhold payment if there is evidence of
“any unpaid obligation, lien or claim for which, if established [AJD] or Owner . . .
might become liable.” (Rider C2, Art. 18 ¶ 18.17 (emphasis added)).
The court finds that a genuine dispute exists as to the likelihood or

probability that AJD may be liable for the Novinger’s-AWMC dispute. The term
“claim” used in the prime contract and incorporated into the subcontract
contemplates disputes between the Owner, AJD, and Novinger’s. (See Subcontract,
Art. 1 § 1.1; id., Art. 2). When paragraphs 18.8 and 18.17 of Rider C2 are read in light
of this definition, it is plain that a withholding of payment must implicate some risk
of liability between these parties. The Rule 56 record is unclear whether AJD faces

any exposure as a result of AWMC’s claim against Novinger’s. Viewing the facts in
a light most favorable to AJD, the court finds a genuine dispute as to whether AJD

7 AJD also invokes Section 12.2 as authority to withhold payment. This
provision only applies to “known indebtedness.” (Subcontract, Art. 12 § 12.2).
Although AWMC has sought compensation from Novinger’s, the court is unaware of
any liability determination. Thus, we do not consider Section 12.2 to be presently
applicable.
will or might become liable, (see Rider C2, Art. 18 ¶¶ 18.8, 18.17), and we will deny
summary judgment.8
4. Close-Out Documents

Finally, the parties dispute whether AJD is contractually entitled to withhold
the balance of funds due and owing until Novinger’s executes certain close-out
documents. To complete the Journal Squared Project and receive “final payment,”
the subcontract requires Novinger’s to submit, inter alia, a “full and final release
and waiver of all liens and claims in connection with the” project. (Rider C2, Art. 18
¶¶ 18.11, 18.11.1; see also id. ¶ 18.17).
Based on the record before us, and the parties’ arguments, the court

concludes that a genuine dispute exists as to the applicability and effect of the
subcontract’s close-out provisions under the unique circumstances of this case—
with numerous outstanding claims that would be directly impacted by the
contemplated release language. A decision on the propriety of AJD’s action to
withhold payment must await the resolution of myriad disputes as set forth herein.
B. Quantum Meruit

In addition to its breach-of-contract claim, Novinger’s asserts a quantum
meruit claim to recover costs associated with the removal of certain safety cables
and cleaning. (See Doc. 1-2 ¶¶ 11-14). The quantum meruit doctrine permits a

8 We acknowledge that Novinger’s purports to disclaim AJD’s liability for this
dispute in a footnote in its summary judgment briefing. (See Doc. 79 at 17 n.10
(“AWMC logically has no claim against AJD, the owner, or the project, [and] AWMC
has undoubtedly executed a full and final release absolving all those entities of
liability.”)). A statement in a brief is not evidence, however, and the evidence that
Novinger’s has adduced does not foreclose AJD’s potential liability as to AWMC.
“performing party to recoup the reasonable value of services rendered,” Weichert
Co. Realtors v. Ryan, 608 A.2d 280, 285 (N.J. 1992), on the “equitable principle that a
person shall not be allowed to enrich himself unjustly at the expense of another,” id.

(citation and internal quotation marks omitted). To prove a quantum meruit claim, a
plaintiff must establish “(1) the performance of services in good faith, (2) the
acceptance of the services by the person to whom they are rendered, (3) an
expectation of compensation therefor, and (4) the reasonable value of the services.”
Starkey, Kelly, Blaney & White v. Est. of Nicolaysen, 796 A.2d 238, 242-43 (N.J. 2002)
(citations and internal quotation marks omitted). However, “the existence of an
express contract excludes the awarding of relief regarding the same subject matter

based on quantum meruit.” N.Y.-Conn. Dev. Corp. v. Blinds-To-Go (U.S.) Inc., 159
A.3d 892, 901 (N.J. Super. Ct. App. Div. 2017) (quoting Kas Oriental Rugs, Inc.
v. Ellman, 926 A.2d 278, 292 (N.J. Super. Ct. App. Div. 2007) (citing Moser v. Milner
Hotels, Inc., 78 A.2d 393, 280-81 (N.J. 1951))).
In the instant matter, an express contractual provision applies, (see Doc. 71 at
29 (“Section 5.3 of the subcontract . . . applies.”)), and we therefore find no basis for
a quantum meruit theory.9 Because its quantum meruit claim fails on this ground,
we need not consider whether Novinger’s released its removal and cleaning claims.
IV. Conclusion

We will deny Novinger’s’ motion and grant in part and deny in part AJD’s
motion. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania

Dated: March 26, 2021

9 Novinger’s’ invocation of S.M. Electric Co., Inc. v. Torcon, Inc., No.
A-0846-15T3, 2016 WL 6091256 (N.J. Super. Ct. App. Div. Oct. 19, 2016), is
unavailing. The court in S.M. Electric interpreted whether, under its facts, the
substance of a letter constituted a “claim” and a “demand”—as opposed to a
“change order”—for insurance liability purposes, triggering a separate contractual
notice requirement. See S.M. Electric, 2016 WL 6091256, at *1, 4-5. The case does
not stand for the proposition that all post-completion claims for additional
compensation based on delays fall outside the scope of change order provisions.
(Doc. 71 at 23). But more importantly, S.M. Electric does not negate Novinger’s’
acknowledgment that a different contractual provision applies in this case,
effectively barring its quantum meruit claim under New Jersey law.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410127. Public record. Not legal advice.