PENNSYLVANIA RECORD

A Philadelphia judge has refused to grant a plaintiff’s motion in a construction contract

dispute case that sought a trial by jury, ruling that if, and when, the case sees the inside of a courtroom, it will be handled in a non-jury manner as per the terms of the contract.

Attorneys for SFL Construction Inc. filed suit in June 2010 against Tosa Construction Inc., N. Paone Construction Inc., and Nicola Paone and Roseann Paone, asserting claims against the defendants for breach of contract, promissory estoppel, violations of the Contractor-Subcontractor Payment Act and unjust enrichment.

An amended complaint was filed the following month that also attempts to pierce the corporate veil as to N. Paone Construction Inc., Nicola Paone and Roseann Paone.

The plaintiff is based in Philadelphia while the defendants are from Hatfield, Pa.

SFL Construction further demanded a jury trial, while the defendants opposed the request, arguing that the plaintiff waived its right to a jury trial under the terms of a subcontracting agreement entered into between SFL and Tosa Construction.

The plaintiff however asserted that ambiguities in the agreement negate waiver of the right to a trial by jury.

Some of the alleged ambiguities within the signed agreement relate to whether any potential legal proceeding is to be decided under the laws of Pennsylvania or New Jersey.

In a Jan. 7 memorandum and order, Philadelphia Common Pleas Court Judge Albert Snite, Jr. wrote that the agreement between the parties “clearly and unambiguously” states that the sides waive any request for a jury trial in any legal proceeding brought by either of them against the other with respect to matters arising out of or connected with their contract.

“This language leaves no doubt: under the Agreement, Plaintiff and defendant Tosa Construction, Inc. clearly and unambiguously waived their right to a jury trial with respect to any matters arising out of the Agreement,” Snite wrote. “Accordingly, Plaintiff’s demand for a jury trial is denied as to defendant Tosa Construction.”

SFL, however, further argued that it is entitled to a jury trial with respect to the other defendants since they are non-parties to the agreement.

The Tosa defendants, however, argued that the claims against N. Paone Construction, Inc., and Nicola and Roseann Paone are based upon an alter ego theory of piercing the corporate veil, and therefore are “secondary and derivative in nature to the contract claims against Tosa.”

Under that theory, the Tosa defendants argue that the plaintiff has no right to a jury trial.

Snite again, however, denied the plaintiff’s request for a jury trial, writing that in both Pennsylvania and New Jersey, piercing the corporate veil is an equitable remedy, and the right to a jury trial attaches in legal but not equitable actions.

“In this case, the amended complaint seeks to pierce the corporate veil as to defendants N. Paone Construction, Nicola Paone and Roseann Paone,” Snite wrote. “Since piercing the corporate veil is an equitable action, there is no right to a jury trial regardless of whether the Agreement is ambiguous with respect to the choice-of-law provision therein. Accordingly, Plaintiff’s demand for a jury trial is denied in its entirety.”

Records show that the plaintiff in the case is being represented by Philadelphia attorney Andrew DuPont of the Locks Law Firm.