ABACUS SPORTS INSTALLATION, LTD., Plaintiff, v. CASALE CONSTRUCTION, LLC., a Delaware limited liability company, SILLS/MOYER EDUCATION FOUNDATION, INC., a Delaware corporation and REINVESTMENT II, LLC, a Pennsylvania limited liability company, Defendants.

C.A. No. N10L-08-062 CLS.Superior Court of Delaware, New Castle County.Date Submitted: July 1, 2011.
Date Decided: July 21, 2011.

On Defendant Casale Construction’s Motion for Partial Summary Judgment. Denied.

Janet Z. Charlton, Esq., Michael A. Cianci, Esq., DE, Attorneys for Plaintiff.

Charles J. Brown, III, Esq., Wilmington, DE, Attorney for Defendant Reinvestment II, LLC.

Douglas A. Shachtman, Esq., Wilmington, DE, Attorney for Defendant Casale Construction, LLC.


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Before this Court is Defendant Casale Construction’s motion for partial summary judgment pursuant to the Construction Prompt Payment Act, 6 Del. C. § 3501, et seq. The Court has reviewed the parties’ submissions. For the reasons that follow, the Defendant’s motion for partial summary judgment is DENIED.

Plaintiff Abacus Sports Installations, Ltd. (“Abacus Sports”) is a Pennsylvania corporation. Defendant Sills/Moyer Education Foundation, Inc. (“Sills/Moyer”) is a Delaware corporation. Casale Construction, LLC (“Casale”) is a Delaware limited liability company. Defendant Reinvestment II, LLC (“Reinvestment”) is a Pennsylvania limited liability company.

On June 15, 2009, Plaintiff Abacus Sports entered into a subcontract agreement (“the Contract”) with Defendant Casale. According to the terms of the Contract, Abacus Sports was to install the flooring in two gymnasiums, the main gym and the auxiliary gym (collectively the “gyms”), at the Maurice J. Moyer Academy (“Moyer Academy”) located at 610 East 17th Street, Wilmington, Delaware 19802. As per the Contract, Plaintiff Abacus Sports began to supply the necessary materials and labor to install the flooring in the gyms in September 2009, completing its work on the gyms on May 11, 2010.

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On August 6, 2010, Plaintiff Abacus Sports filed its complaint against Defendant Sills/Moyer, Defendant Casale and Defendant Reinvestment II on August 6, 2010, alleging claims against each of the Defendants (the “Complaint”). In Count V of its Complaint, Plaintiff Abacus Sports alleges that Defendant Casale received funds in connection with the construction and renovation of Moyer Academy, that it withheld those funds to the payment of the full amount due Plaintiff Abacus Sports and in doing so violated the Construction Prompt Payment Act (the “Act”).[1]

On March 29, 2011, Defendant Casale filed this motion for partial summary judgment, alleging that no material facts are in dispute and that Defendant Casale is not obligated under the Act. Therefore, Defendant Casale asserts it is entitled to judgment as a matter of law on Count V of the Complaint. Defendant Casale has attached two signed affidavits to its motion. The affidavits are the sworn statement of Anthony Casale, the president of Casale Construction, and of Theopalis K. Gregory, Esquire (“Gregory”), the director of Moyer Academy Charter School and the president of the Sills/Moyer Education Foundation, Inc. at all relevant times. There is no other evidence on the record regarding the payments Defendant Casale received in connection with the construction and renovation of Moyer Academy.

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On April 13, 2011, Plaintiff served Requests for Production of Documents directed to all Defendants. Plaintiff Abacus Sports filed its response to Defendant Casale’s motion on April 26, 2011. It did so without being able to review any documents relating to the subject matter of Defendant Casale’s motion.

Standard of Review
Superior Court Civil Rule 56 allows a defendant to file a motion for summary judgment. Summary judgment is appropriate when the moving party is able to show there are no genuine issues of material fact.[2] Once met, the burden then shifts to the nonmoving party to demonstrate that there is a genuine issue of material fact.[3] The facts are viewed in the light most favorable to the nonmoving party.[4] It is not appropriate to grant summary judgment if the facts on the record are insufficient and it appears necessary to inquire further into the facts in order to apply the law to the circumstances.[5]

As the moving party, Defendant Casale has failed to meet its burden showing no genuine issues of material fact exist.[6] The Court will not grant summary judgment when the evidence on the record is insufficient to make a

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determination as a matter of law and it is necessary to further inquire into the facts.[7] The only evidence on the record is limited to the two affidavits Defendant Casale filed with its motion. Plaintiff Abacus Sports has not received discovery from Defendant Casale and has filed a motion to compel discovery in this Court scheduled for hearing on July 12, 2011. Due to the lack of evidence on the record in this case and the outstanding motion to compel discovery, the Court is unable to conclude as a matter of law that Defendant Casale is entitled to summary judgment.

Self-serving affidavits, alone, without any further evidence on the record, are insufficient and prudence requires further discovery for the Court to grant a motion for summary judgment.[8] Defendant Casale’s affidavits of Anthony Casale and Gregory are self-serving, asserting that the funds received by Defendant Casale were limited to the middle school and high school and did not include the labor and materials supplied by Plaintiff Abacus Sports to the gyms. Regarding Defendant Casale’s assertion that it has not received any payment for the gyms, Gregory can only verify this “to the best of [his] recollection.”[9]
He goes on to say that he “no longer [has] any records relating to the construction.”[10] Both Anthony Casale and

Gregory have an interest in this suit and were a party to the payment at issue. The

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affidavits are little more than vague recollections of a transaction between Defendant Casale and Defendant Sills/Moyer and/or Defendant Reinvestment.[11] The affidavits of Gregory and Anthony Casale are self-serving and, without more, are insufficient to prove no genuine issues of material facts exist.

Based on the forgoing, Defendant Casale’s motion for partial summary judgment is DENIED. IT IS SO ORDERED.

[1] 6 Del. C. § 3501, et seq.
[2] Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citation omitted).
[3] Id. at 681.
[4] Grabowski v. Mangler, 938 A.2d 637, 641 (Del. 2007).
[5] Camac v. Hall, 698 A.2d 394, 396 (Del. Super. Ct. 1996) (citing Ebersole v. Lowengrub 180 A.2d 467, 470 (Del. 1962)).
[6] Moore, 405 A.2d at 680.
[7] Savor, Inc. v. FMR Corp. and Upromise, Inc., 2003 WL 21054394 (Del. Super.). See also Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
[8] Savor, 2003 WL 21054394, at *1.
[9] Def. Mot. Partial Summ. J., D.I. 19, Ex. A, ¶ 6, at 2.
[10] Id.
[11] It is unclear from the evidence where the payments to Defendant Casale came and it remains to be shown why the payment was made and whether it was for the work on Moyer Academy in general or whether the funds were truly limited to the work done on the middle and high schools.

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