Opinion
No. 98-1511-B
April 1, 1999
MEMORANDUM OF DECISION AND ORDER ON PARTIES' CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS
This case came before the court for hearing on the parties' cross motions for judgment on the pleadings. Plaintiff Ostrow Electric Company ("Ostrow") argues that, under G.L.c. 30, § 39F, it is entitled to payment from defendant City of Leominster ("Leominster") for subcontract work it performed on a school project. Leominster opposes the motion, and has filed a cross motion for judgment on the pleadings, claiming that Ostrow is not entitled to payment because its demand under the statute was deficient. In the alternative, Leominster argues that Ostrow is not entitled to judgment on the pleadings because Ostrow's demand for payment raises genuine issues of material fact. Third party defendant Eastern Contractors, Inc. ("Eastern"), the general contractor, did not choose to be heard.
BACKGROUND
Eastern entered into a general contract with Leominster to construct the Samoset Elementary School in Leominster. Eastern then entered into a subcontract with Ostrow by which Ostrow was to supply electrical work for the Samoset project.
When a subcontractor (here, Ostrow) on a public project has not been paid by the contractor (here, Eastern) within 70 days of substantial completion of the subcontract work, the subcontractor has a right of action against the awarding authority (here, Leominster). G.L.c. 30, § 39F(4)(d). Following completion of the electrical work, Ostrow filed a demand for direct payment for "extra work" from Leominster. In compliance with G.L.c. 30, § 39F(4), Leominster sent Ostrow's demand letter to Eastern. Eastern requested that Leominster not pay the bill because Eastern needed time to review the validity of Ostrow's claims for extra work. Based on Eastern's response, Leominster denied Ostrow's demand, and Ostrow filed the current action.
DISCUSSION
The dispute at bar centers on whether the demands and responses of the parties satisfied the requirements set forth in G.L.c. 30, § 39F. Each party argues that it is entitled to judgment on the pleadings because its opponent's actions failed to satisfy the procedural requirements of G.L.c. 30, § 39F. Each party has, however, has failed to satisfy the controlling preconditions for judgment on the pleadings.
Leominster's Motion
Under Mass.R.Civ.P. 12(c), a defendant (Leominster) is entitled to judgment on the pleadings if the pleadings demonstrate that under no factual circumstances may plaintiff recover. The court must accept all the facts presented by the plaintiff (Ostrow) as true and determine whether there is any legal theory, based on those facts, that would entitle plaintiff to relief. Minaya v. Massachusetts Credit Union Share Insurance Corporation, 392 Mass. 904 (1984). At bar, defendant Leominster has failed to satisfy that standard.
Under the statute, if the general contractor refuses to meet the subcontractor's demand, the awarding authority must place any disputed funds "in an interest-bearing joint account in the names of the general contractor and the subcontractor." G.L.c. 30, § 39F(1)(f). The statute requires that disputed funds be placed in escrow, but Leominster has placed no funds in escrow. For that reason, Leominster has failed to establish that there is no set of facts on which Ostrow could succeed on the merits of this case, and Leominster is not entitled to judgment on the pleadings.
Ostrow's Motion
Because Leominster failed to place any funds in an escrow account, Ostrow maintains that, as a matter of law, Ostrow is entitled to judgment on the pleadings. A plaintiff seeking judgment on the pleadings must prove that there are no disputed issues of material fact "remaining for adjudication" and that the plaintiff is entitled to judgment as a matter of law. See Reporters' Notes, Mass.R.Civ.P. 12(c). Ostrow has failed to satisfy that standard.
Leominster maintains that it was not obligated to place disputed funds in escrow because Ostrow's demand was not stated with the specificity demanded by the statute and Leominster, therefore, had no way of determining which funds, if any, were in dispute. G.L.c. 30, § 39F(d) provides that "the demand shall contain a detailed breakdown of the balance due under the subcontract." The notarized demand letter submitted by Ostrow to Leominster on March 19, 1997, requested payment of $13,399.64 for "extra work" and $6052.00 for an unspecified "change order." Leominster contends that such a demand is insufficient to comply with the statute's requirement of a "detailed breakdown."
In a similar case involving the analogous G.L.c. 149, § 29 (the payment bond statute), the Court held that a subcontractor's invoice, accompanied by the daily slips, fulfilled the statute's notice requirement that the claimant state "with substantial accuracy the amount claimed." Bastianelli v. National Union Fire Insurance Company, 36 Mass. App. Ct. 367 (1994). At bar, the pleadings do not demonstrate that Ostrow's demand letter was accompanied by any documenting materials such as work orders or vouchers. Thus, the Ostrow effort falls far short of the submission that prevailed in Bastianelli. Leominster contends that Ostrow's failure to provide a detailed, documented breakdown of the extra charges prevented Leominster from determining which funds were in dispute and thus excused Leominster from any obligation to place disputed funds in escrow. Ostrow maintains that its submission was sufficiently particularized. Accordingly, the dispute describes a factual conflict and, as a consequence, bars judgment on the pleadings for Ostrow.
CONCLUSION
Because the pleadings reveal that there are several disputed questions of fact regarding the adequacy of both Ostrow's demand letter and Leominster's response to that letter, judgment on the pleadings is not appropriate. Leominster has failed to show that there is no set of facts under which Ostrow could recover on its G.L.c. 30, § 39f claim and Ostrow has failed to prove that there are no genuine issues of material fact in dispute upon that claim. The matter must proceed to the next station on the litigation line.
ORDER
For the foregoing reasons, the parties cross motions for judgment on the pleadings are DENIED.
_____________________________ Daniel F. Toomey Justice of the Superior Court