Breach • Excuse • Unjust Enrichment • Alternative Pleading

Muschlitz Excavating, Inc. v. Gary J. Strausser Homebuilders, Inc., PICS Case No. 14-0274 (C.P. Northampton Feb. 14, 2014) Baratta, J. (11 pages).

Where a plaintiff in a breach of contract action alleged that the defendant delayed and impeded the efforts of the plaintiff to complete the contract, the defendant was not entitled to summary judgment; and where a plaintiff pleaded breach of contract and unjust enrichment in the alternative, the plaintiff was entitled to proceed on both claims. Denied.

Defendant Strausser Homebuilders hired plaintiff Muschlitz Excavating to perform sitework improvements for defendant’s development project. The parties’ contract had a completion deadline with intermediary deadlines and payment schedule. The plaintiff could not complete the work as scheduled, which the plaintiff alleged was caused by the defendant’s failure to secure work permits and zoning approvals, as it was required to do to by the contract.

Plaintiff filed the instant action, claiming breach of contract, or in the alternative, unjust enrichment by the defendant; in its answer, the defendant argued plaintiff’s claims were barred by provisions in the contract and the plaintiff’s material breach of the contract, and made a counterclaim, alleging that the plaintiff failed to complete the work in a timely fashion according to the contract’s “time is of the essence” provision and that the plaintiff’s work was defective and violated warranties.

After discovery, the defendant filed a motion for partial summary judgment, arguing that there was no issue of material fact as to plaintiff’s breach of contract claim because the plaintiff materially breached the contract and was therefore not entitled to damages for the defendant’s failure to perform, as well as to plaintiff’s unjust enrichment claim on the basis that plaintiff could not assert an unjust enrichment claim if the relationship of the parties is founded on a contract.

The court held that because the plaintiff alleged that its failure to perform had been caused by the defendant’s failure to obtain permits and zoning approvals, it raised issues of material fact that must be determined by the trier of fact, making summary judgment inappropriate.

The court also noted that while defendant was correct in asserting that plaintiff could not recover on both its breach of contract and unjust enrichment claims, it held that Pennsylvania law allowed the plaintiff to plead both claims alternatively, so that if it was unsuccessful on its breach of contract claim it could attempt to recover on an unjust enrichment claim.