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Midlantic Fire, LLC v. Ernest Bock & Sons, Inc.

Superior Court of New Jersey, Appellate Division

May 3, 2016, Submitted; June 3, 2016, Decided

DOCKET NO. A-3177-14T2

Opinion

PER CURIAM

Defendant appeals a February 12, 2015 judgment in favor of plaintiff in the amount of $2,780.00, plus court costs. We affirm.

We summarize the following facts from the record. Defendant is a general contractor. Plaintiff is a subcontractor specializing in fire protection systems. The parties entered into a subcontract on August 12, 2011, agreeing that plaintiff would install and complete the sprinkler systems on the third and fourth floors of a medical facility in Marlton. The price listed in the contract was $36,000. The contract provided that the work was to be done in accordance with all drawings and plans contained as exhibits to the subcontract.

The subcontract contained a "pay-if-paid" (PiP) clause, which provides:

Payment by Owner to the General Contractor for the work/materials invoiced by the Subcontractor/Supplier shall be a condition precedent to General Contractor's [*2]  obligation to pay Subcontractor/Supplier. Accordingly Subcontractor/Supplier agrees and understands that it shall bear the risk of non-payment by the Owner and shall be entitled to no compensation from the General Contractor in the event of non-payment by the Owner for its work/materials.

Plaintiff installed the system several months after the parties signed the contract. Plaintiff relied upon the construction notes and construction plan provided by defendant when installing the systems, pursuant to the contract. After plaintiff installed the sprinklers, defendant alerted plaintiff that it needed to change some of the work it had performed because the sprinklers plaintiff installed interfered with the placement of unistruts necessary for the installation of medical equipment in the facility. Plaintiff sent defendant a proposal for a change order, including the terms of what plaintiff considered to be a new contract and a contract price of $2780.00. Defendant's project manager authorized plaintiff to undertake the work proposed in the change order via email. Defendant, however, denies that the change order was approved because the project owner did not approve of the costs delineated [*3]  in the change order. The owner declined to do so because of a "lack of communication [and] coordination" between the contractors. Defendant did not pay plaintiff the amount listed on the change order on the basis that it was not paid the amount from the project owner. Plaintiff subsequently filed suit in the Law Division, Special Civil Part, to recover the payment listed in the contract. The trial court conducted a trial on February 12, 2015. On that same day, the trial court ruled in favor of plaintiff, and entered an order to that effect. This appeal followed.

On appeal defendant argues that the PiP provision in the contract bars plaintiff's recovery; and that the trial court improperly excluded defendant's witness's testimony. We disagree.

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2016 N.J. Super. Unpub. LEXIS 1274 *; 2016 WL 3093075

MIDLANTIC FIRE, LLC, Plaintiff-Respondent, v. ERNEST BOCK & SONS, INC., Defendant-Appellant.

Notice: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.

PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.

Prior History:  [*1] On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. DC-8529-14.

CORE TERMS

change order, Subcontractor, trial court, general contractor, installed, parties