APOGEE WAUSAU GROUP, INC. v. PMC PROPERTY GROUP, INC.

Filing 53

MEMORANDUM AND/OR OPINION. SIGNED BY DISTRICT JUDGE HARVEY BARTLE, III ON 5/8/2024. 5/8/2024 ENTERED AND COPIES E-MAILED.(sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
APOGEE WAUSAU GROUP, INC.
v.
PMC PROPERTY GROUP, INC.

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:
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CIVIL ACTION

NO. 22-3690

MEMORANDUM
Bartle, J.

May 8, 2024
Plaintiff Apogee Wausau Group, Inc. d/b/a Wausau

Window and Wall Systems (“Wausau”) brings this diversity action
for breach of contract and for quantum meruit/unjust enrichment
against defendant PMC Property Group, Inc. (“PMC”).

Wausau

alleges that PMC failed to pay $2,296,200.01 due for curtain
wall panels and other materials for a construction project. 1

PMC

has filed a counterclaim against Wausau for breach of contract
for $1,225,000 in damages.
Before the court is the motion of Wausau for summary
judgment as to its claims against PMC and as to PMC’s
counterclaim (Doc. # 38).

PMC also moves for partial summary

judgment as to Wausau’s claims regarding three of the four of
its invoices at issue (Doc. # 39).

1.
Wausau is incorporated under the laws of Wisconsin and has
its principal place of business in that state. PMC is a
Pennsylvania corporation with its principal place of business in
the Commonwealth. The amount in controversy exceeds $75,000
exclusive of interests and costs. See 28 U.S.C. § 1332(a).

I
The Court shall grant summary judgment under Rule 56
of the Federal Rules of Civil Procedure “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R.

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).

A dispute is genuine if the evidence is such that a

reasonable factfinder could return a verdict for the nonmoving
party.
(1986).

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
The court must draw all inferences in favor of the

nonmoving party.

See In re Flat Glass Antitrust Litig., 385

F.3d 350, 357 (3d Cir. 2004).
Summary judgment is granted when there is insufficient
evidence in the record for a reasonable factfinder to find for
the nonmovant.

See Anderson, 477 U.S. at 252.

“The mere

existence of a scintilla of evidence in support of the
[nonmoving party]’s position will be insufficient; there must be
evidence on which the jury could reasonably find for [that
party].”

Id.

In addition, Rule 56(e)(2) provides that “[i]f a

party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required
by Rule 56(c), the court may . . . consider the fact undisputed
for the purposes of the motion.”

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Even if it does not grant summary judgment, the court
under Rule 56(g) may enter an order stating that a material fact
is undisputed and that it is established for purposes of the
case.
II
The following facts are cited as undisputed.

Wausau

contracted with PMC, a real estate developer, to sell and
deliver 3,865 curtain wall panels and other related materials
for $15,088,806 in connection with the construction of the
Riverwalk, a two-tower mixed-use community bordering the
Schuylkill in Philadelphia.

Wausau has submitted and PMC has

not paid the following invoices:
(a)

An August 28, 2021 invoice for $16,236.72 related
to Tower I (No. 104418);

(b)

A January 18, 2022 invoice for engineering labor,
materials and manufacturing labor for
$1,556,151.50 related to Tower II (No. 105746);
and

(c)

An April 21, 2022 invoice for engineering labor,
materials and manufacturing labor for $819,649.91
related to Tower II (No. 106589).

On December 25, 2021 Wausau refunded PMC $95,838.12 due to
overbilling (Invoice No. 105602).

Thus, the amount Wausau has

placed in issue in its complaint is $2,296,200.01.
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The contract which forms the basis of Wausau’s lawsuit
is a Quote Confirmation (Wausau Quote No. 278652-Rev04) dated
April 21, 2020.

Luke Schessler signed on behalf of Wausau

Window & Wall Systems (the trade name of Wausau) and Andrew
Feldman, as Senior Project Manager, signed on behalf of PMC. 2
The Quote Confirmation specifies that Wausau would furnish PMC
with curtain wall panels, various hardware such as door hinges
and handles, and design labor over the course of the Riverwalk
construction project.

The contract outlines the approximate

amounts of each product and various specifications.

The Quote

Confirmation states:
Wausau will bill monthly for work completed,
including, but not limited to, engineering,
new extrusion dies, and materials received
at Wausau. The monthly invoice amount will
be projected through the billing date or end
of the calendar month, in accordance with an
agreed-upon Schedule of Values between
Wausau and customer.
The Quote Confirmation requires that “substantially complete
shipment(s) must be accepted from Wausau, or arrangements for
storage finalized with Wausau, within 24 months after the date
of order entry.”

It does not identify interim shipment dates

but notes that “all delivery schedules will be deemed good faith
estimates only, and not binding.”
damages against Wausau.

The Quote Confirmation limits

It provides that “Wausau will not be

2.
Schessler signed the document on April 15, 2020 and Feldman
signed on April 23, 2020.
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liable under any circumstances for indirect, incidental,
consequential, special or punitive damages of any kind.” 3
PMC cites an additional document dated April 23, 2020.
It was signed by Amadou Sar, Vice President of Sales and
Marketing at Wausau, and by Feldman. 4

It is entitled “First

Amendment and Supplementary Conditions to Quote Confirmation
#278652-Rev03 Wausau Window & Wall System Riverwalk – Building
D” (“First Amendment”).

It states that it “supplement[s] and

modif[ies]” the terms of the Quote Confirmation #278652-Rev03,
dated March 17, 2020.

This is not the April 21, 2020 Quote

Confirmation signed by the parties which references Quote No.
278652-Rev04.
In contrast to the April 21, 2020 Quote Confirmation,
Feldman did not sign the First Amendment on behalf of PMC in its
own right, that is as a party to the contract.

Above Feldman’s

signature is written:

3.
The total price of $15,088,806 is based on “payment within
thirty (30) days of invoice date . . . . Past due payments will
accrue service charges on the total amount due and owing at the
lesser of 12% per annum or the maximum legal rate.” The Quote
Confirmation also provides that if PMC fails to make timely
payments, it is “responsible for Wausau’s costs of collection,
including reasonable attorneys’ fees.”
4.
Feldman signed the contract on April 23, 2020.
the contract on May 13, 2020.
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Sar signed

Owner:
2301 JFK Owner, L.P.
By: PMC Property Group, Inc.,
Systems Solely As Agent for the Owner
The identity of the property Owner above Feldman’s name differs
from the identity of the Owner as stated in the introductory
paragraph of the First Amendment.

There, the Owner is described

as “23rd Street Lot B Owner LLC.”
The First Amendment is replete with references to the
Owner and Wausau.

Among other provisions, it provides “[u]nder

no circumstances shall Wausau’s total responsibility exceed 10%
of the value of the Purchase Order between Wausau and Owner.

In

no event shall Wausau be responsible for delays caused by or the
result of Owner-specified materials/vendors or for indirect,
consequential, exemplary, or punitive damages.”

Additionally,

the First Amendment contains a significant limitation: “There
are no intended third party beneficiaries of the First Amendment
and no provision herein shall create or give to third parties
any benefit, claim, or right of action against Owner or Wausau.”
The First Amendment contains language related to
scheduling.

It reads, “Wausau will be responsible for any

direct damage to Owner due to its inability to deliver on or
near the estimated delivery dates based on the schedule dated
4/15/20 which is subject to changes approved by both Parties
with reasonable adjustments in the price” (emphasis added).

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A schedule dated April 15, 2020 prepared by Wausau
begins with Wausau’s receipt of a purchase order on April 17,
2020 and ends with the shipment of the first load of curtain
wall panels during the week of November 25, 2020.

Interim dates

identify deadlines for such events as approval of drawings and
manufacturing. 5

The schedule states the dates provided are

“based on Wausau Window’s current backlog and it is for
reference purposes only. . . . Final ship dates are subject to
change.”

The schedule contains no subsequent shipment dates

after November 25, 2020.

Feldman does not recall any approved

changes or amendments to the April 15, 2020 schedule even though
Wausau sent a series of later schedules to PMC.
Wausau made its first delivery of curtain wall panels
on or about January 2021.

Wausau was ready to ship curtain wall

panels in late 2020, as contemplated by the April 15, 2020
schedule, but PMC requested that Wausau delay its initial
shipment because PMC was not prepared to accept the materials.
PMC did not contract with an installer of the curtain wall

5.
Before shipping curtain wall panels, Wausau must design and
manufacture the panels. First, Wausau drafts drawings based on
architectural drawings and other information provided by PMC.
After Wausau designs these drawings, PMC must approve the
designs. It is Wausau’s experience that such approval takes
between three to eight weeks depending on the complexity of the
project. After PMC approves these designs, Wausau must order
the necessary materials and then manufacture the curtain wall
panels to these specifications.
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panels until February 18, 2021, when R.A. Kennedy & Sons, Inc.
was hired to do so.
In March 2021, several shipments were delayed, and PMC
notified Wausau that such delays were unacceptable.

In or about

April 2021, Wausau internally circulated a new schedule with a
final shipment date of in or about March 2022.

On October 18,

2021, PMC objected to those dates as “totally unacceptable.”

A

temporary certificate of occupancy was issued to Tower II, which
was largely residential, on or about January 2022. 6

Wausau

continued shipping curtain wall panels and other materials over
the following year.

PMC paid invoices submitted by Wausau and

Wausau communicated with PMC regarding payment status and other
issues.
There is no evidence in the record of project-wide
schedules kept by PMC as the real estate developer.

According

to Feldman, there were no baseline schedules for the project,
there was no critical path activity schedule, and there was no
as-built schedule.

There were weekly meetings of carpenters,

electricians, plumbers, painters, and HVAC and duct work
contractors during which the participants would review site
progress and work expected to be completed in the upcoming week.
No minutes of such meetings were kept.

6.
The record does not establish when the final certificate of
occupancy was awarded.
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In December 2021, Wausau circulated a new schedule
with a final shipment date of August 2022.

The following month,

PMC failed to pay Wausau for its January 18, 2022 invoice for
$1,556,151.50.

Another invoice for $819,649.90, submitted on

April 21, 2022, similarly remains unpaid.
In May 2022, Wausau circulated another revised
schedule, this time identifying the project end date as on or
about January 2023.

On May 20, 2022, after receipt of this

revised schedule, Feldman sent a letter to Wausau on PMC
letterhead on behalf of the Owner.

It notified Wausau of its

default and warned of the consequences if Wausau failed to cure
the default:
The purpose of this letter is to notify
Wausau in writing of its default under the
Contract for failing to ship the podium
perforated panels and retail curtain wall to
the Project in a timely fashion. These
panels were already delayed until on or
about February 24, 2022. In a recent e-mail
from Wausau, Owner was advised of a further
delay until December 22, 2022 . . . . This
delay is a default under the Contract and is
completely unacceptable. As a result of
this further delay, Owner will suffer
additional costs and other damages. . . .
Owner is granting Wausau a cure period,
expiring on May 31, 2022.
Wausau completed a site visit on June 8, 2022 and
altered its scope of work to complete the design labor and
production necessary within the time frame required by PMC.
However, no schedules were provided that would wrap up the
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delivery schedule earlier than November 2022.

On July 21, 2022,

PMC issued a formal notice of default for Wausau’s failure to
provide a satisfactory schedule before May 31, 2022. 7
After Wausau terminated further shipments to Tower II,
Paul Beckman, Architectural Engineer at Wausau, provided formal
change orders to PMC to remove the cost of certain undelivered
materials from Wausau’s scope of work.

These change orders

deducted a total of $513,651 from Wausau’s project pricing under
the April 21, 2020 Quote Confirmation.
PMC has raised as a defense the failure of Wausau to
provide a waiver of liens.

The First Amendment contains an

express condition precedent concerning such waivers:
Wausau agrees to execute conditional partial
waivers and releases of liens and claims in
the form set forth in Exhibit A hereto and
to submit the same with each invoice.
Wausau further agrees to execute an
unconditional final waiver and release of
liens and claims in the form set forth in
Exhibit A hereto upon final payment. Wausau
agrees that execution and delivery of the
waivers and releases set forth in this
Paragraph 8 is an express condition
precedent to Wausau’s right to progress and
final payment (as applicable) for
performance of its work on the Project.

7.
While both parties note the existence of the letter in
their respective Statements of Facts, neither provides a copy of
the letter. In support of its Statement of Facts, PMC cites to
Exhibit 15 of its Declaration of Matthew H. Dempsey, which is a
collection of invoices by third party contractors to PMC.
Wausau cites to Exhibit 5 to its Declaration of John C. Ekman,
which is the May 20, 2022 letter referenced above.
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While a waiver of lien is a common precondition to
payment on commercial construction projects, the April 21, 2020
Quote Confirmation contains no requirements for such waivers.
On multiple occasions, Feldman requested partial lien
waivers from Wausau in advance of payment.

On April 22, 2021,

Feldman emailed Sar to remind him of the need for Wausau to
execute lien waivers.

Wausau was requested to provide a lien

waiver again on or about August 10, 2021.

At that time, Joan

Stiel, Credit Analyst at Wausau, provided lien waivers for
Invoice Nos. 103104, 103666, and 103992.

PMC requested a lien

waiver once more on or about December 2021.

At that time,

Wausau had not provided a lien waiver for the October invoice
because the July invoice remained unpaid.
On one occasion on or about November 24, 2021, PMC
paid Wausau prior to receipt of a lien waiver.

Aida Zoleta, the

Assistant Controller of PMC, explained that although PMC did not
“normally ask [Wausau] for the Lien Waiver, [] because the
amount is so big, the bank ask[ed] for” one in connection with
Invoice No. 104916.

PMC maintains that as of December 2021, it

had paid all outstanding invoices relating to Tower II. 8

PMC

8.
PMC does not otherwise respond to Wausau’s argument that
Invoice No. 104418 should be paid. There is no requirement that
Wausau provide lien waivers prior to payment for materials
provided for Tower I.
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never requested a partial lien waiver for any of the currently
outstanding Tower II invoices.
III
The threshold issue before the court is what
constitutes the contract between Wausau and PMC, the parties to
this action.
There is no dispute that the April 21, 2020 Quote
Confirmation is a contract between Wausau and PMC and that
Wausau’s contract claim relies only on it.

The parties’ views,

however, diverge with respect to the First Amendment.

It is

PMC’s position that the First Amendment amended the Quote
Confirmation and that both documents, read together, constitute
the entire contract between the parties.

Wausau counters that

the First Amendment is not an agreement between the parties to
this lawsuit and is thus irrelevant to the present dispute.
According to Wausau, it was a separate contract not between
Wausau and PMC but between Wausau and the 2301 JFK Owner, L.P.,
the owner of Riverwalk Tower II, and was signed by PMC merely as
an agent of a disclosed principal.
It is conceded that Wausau, through authorized
representatives, signed both the Quote Confirmation and the
First Amendment.
Confirmation.

Feldman, on behalf of PMC, signed the Quote

There is no evidence in the record that PMC was

acting as an agent of the Owner or in any capacity other than on
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its own behalf.

In contrast, Feldman signed the First Amendment

for PMC as the agent of the Owner.

As noted above, it was

signed:
Owner
2301 JFK Owner, L.P.
By: PMC Property Group, Inc.
Systems Solely as Agent for the Owner
It is axiomatic that there must be mutual assent, that
is a meeting of the minds between the parties for a contract to
be formed.

Murphy v. Burke, 311 A.2d 904, 906-07 (Pa. 1973);

Restatement (Second) of Contracts § 3 (Am. L. Inst. 1981).

With

exceptions not relevant here, only a party may sue or be sued
for breach of that contract.

See Scarpitti v. Weborg, 609 A.2d

147, 149-51 (Pa. 1992).
It is well established under Pennsylvania law that
when there is a disclosed principal in a contract, the agent of
that disclosed principal cannot be held liable for breach of the
contract unless the agent expressly agrees to assume liability.
Casey v. GAF Corp., 828 A.2d 362, 369 (Pa. Super. Ct. 2003).
Here PMC, by Feldman, signed the First Amendment on behalf of
the disclosed principal “2301 JFK Owner, L.P.” 9

The First

Amendment is replete with references to the Owner and to Wausau.
Nowhere does PMC purport to assume any liability.

Thus PMC is

not a party to the First Amendment and could not be properly
9.
As noted earlier, the First Amendment names the owner in
its introductory paragraph as “23rd Street Lot B Owner LLC.”
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sued for any breach of it.

See Revere Press, Inc. v. Blumberg,

246 A.2d 407, 409 (Pa. 1968); see also Restatement (Second) of
Agency §§ 320, 328 (Am. L. Inst. 1958).

Moreover, as noted

above, the First Amendment specifically precludes any third
party beneficiary claims.

Since PMC is not a party to the First

Amendment and signed only as an agent of a disclosed principal,
PMC cannot invoke it as a sword to recover damages for itself or
to obtain any other relief such as a setoff.

Only Wausau and

the Owner, which is not a party to this lawsuit, have any rights
or obligations under the First Amendment.

See C&C Sec.

Specialists, Inc. v. GTI-Superior, Inc., Civ. A. No. 86-1096,
1986 WL 7573, at *2 (E.D. Pa. July 1, 1986).
Wausau and PMC did have interactions with regard to
the First Amendment during the construction project.

PMC,

however, cites no evidence that it ever held itself out as a
party to the First Amendment or that it ever agreed to be bound
by its terms.

The undisputed evidence is that it was simply

acting as the Owner’s agent.

PMC, through Feldman, wrote the

May 20, 2022 notice of default to Wausau not on behalf of itself
but on behalf of the Owner.

The letter complained of the

damages that the Owner – not PMC – was suffering as a result of
Wausau’s breach of the First Amendment.

The “Re:” line of the

letter references the Quote Confirmation dated March 17, 2020
and makes no reference to the April 21, 2020 Quote Confirmation.
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Since it was the Owner which was harmed, it is up to the Owner
and not PMC as its agent to sue for breach of the First
Amendment.
The default letter never mentions the April 21, 2020
Quote Confirmation.

PMC has shown the court no evidence that

the Owner ever agreed to be bound by it.
The First Amendment was not an amendment to the April
21, 2020 Quote Confirmation.

These two documents are and have

been treated as separate contracts.

There is only one contract

between Wausau and PMC – the April 21, 2020 Quote Confirmation.
PMC’s argument in this lawsuit to the contrary is an effort to
fit a round peg into a square hole.
The motion of Wausau for summary judgment will be
granted insofar as PMC relies on the First Amendment to support
its counterclaim.

To this extent, there exists no genuine

dispute of material fact and Wausau is entitled to judgment as a
matter of law.

In addition, the First Amendment is not relevant

or otherwise admissible as to PMC’s defenses.
For the reasons stated above, it is an undisputed
material fact established in this action that the only contract
in issue between Wausau and PMC is the April 21, 2020 Quote
Confirmation.

Accordingly, Wausau is entitled to an order to

this effect under Rule 56(g).

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There is simply not enough information cited to the
court to go beyond this one finding of an undisputed material
fact.

While certain other facts may not be disputed, their

legal consequences are.

Genuine disputes of material fact

remain as to whether Wausau may prevail on its claims for breach
of the Quote Confirmation or for quantum meruit/unjust
enrichment.

Genuine disputes of material fact also remain as to

PMC’s defenses and as to its counterclaim aside from any
reliance on the First Amendment which is not properly a part of
this action. 10
Wausau’s motion for summary judgment will be granted
in part and denied in part.
judgment will be denied.

PMC’s motion for partial summary

An order pursuant to Rule 56(g) will

be entered as to the April 21, 2020 Quote Confirmation.

10. PMC, of course, is precluded from raising the issue of
waiver of liens since only the First Amendment contains this
requirement.
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