                                 SUPERIOR COURT
                                     OF THE
                               STATE OF DELAWARE

RICHARD F. STOKES                                      SUSSEX COU NTY C OUR THO USE
             JUDGE                                             1 THE CIRCLE, SUITE 2
                                                               GEORGETOWN, DE 19947
                                                                TELEPHONE (302) 856-5264




                                 November 7, 2014


Dean A. Campbell, Esquire
Law Office of Dean A. Campbell, LLC
P.O. Box 568
20175 Office Circle
Georgetown, DE 19947

Jeffrey J. Clark, Esquire
Schmittinger & Rodriguez, P.A.
P.O. Box 497
414 South State Street
Dover, DE 19903-0497

      RE: A.P. Croll & Son, Inc., a Delaware Corporation vs. Clark’s
          General Contractors, Inc., a Delaware Corporation
          C.A. No.: S13C-07-022 RFS

                         Date Submitted: September 2, 2014

Dear Counsel:

      The Motion for Summary Judgment filed by Plaintiff is denied. Material

facts are disputed, and judgment cannot be entered as a matter of law.

      The verified answer provides support for material issues in dispute that

preclude summary judgment. There are details set forth in the verified answer and
the accompanying affidavit and documents that show potential timely responses to

demand(s), possible back charges, and plausible deductible payments to reduce

Plaintiff’s claim. Perhaps, the information in paragraphs 7 and 8 of the verified

answer should have been displayed differently to demonstrate a set off response.

However, sufficient notice was evident for modern pleading purposes. Plaintiff

knew these matters were in play and maintained the action. There is no waiver,

and Defendant may present evidence about the alleged deductions pled in

paragraphs 7 and 8.

      The trial issues concern the scope of work, the course of performance

between the parties, the demand for releases of liens before payment, the

timeliness of objections to demand(s) and the applicability of the Construction

Prompt Payment Act (Act) under 6 Del.C. § 3506. Questions may arise

concerning reciprocal obligations of good faith and fair dealing. Should the Act

apply, the question of good faith is factually driven concerning alleged overdue

payments. DDP Roofing Services v. Indian River School District, 2010 WL

4657161 (Del.Super. Ct 2010); on reargument 2011 WL 61646; Rodman Const.

Co., Inc., v. BPG Prudential Partners V, LLC, 2013 WL 656176 (Del.Super.,

2013).

      Plaintiff contends that Defendant’s default in answering requests of

admissions within the normal thirty day period requires the granting of summary
judgment. This is not correct. The Court’s Order of July 18, 2014 permitted the

later filing of responses. There was good cause to give relief given the health

problems of the defense counsel and other reasons that required Mr. Clark to

assume the defense. Default admissions are never appropriate for summary

judgment on ultimate issues. R.C. Fabricators, Inc. v. West Dover Professional

Park, LLC 2009 WL 5177150 (Del.Super., 2009). Nor has Defendant suffered any

prejudice.

      At trial, the parties should be prepared to argue whether the Act includes

demolition projects. This is an unresolved legal question. Trial will start at 9:00

a.m. on Wednesday, November 19, 2014.        By close of business Monday,

November 17, the parties shall submit a letter memorandum of no more than two

pages on the application of the Act. If more than one day is required for trial

please notify Alan Barraclough, our civil case manager, immediately.


      IT IS SO ORDERED.

                                             Very truly yours,

                                             /s/ Richard F. Stokes

                                             Richard F. Stokes

cc:   Prothonotary
      Alan Barraclough, Civil Dept.
