SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4654-18

YORK MECHANICAL CORP.,

Plaintiff-Appellant,

v.

KINNEY CONSTRUCTION

SERVICES, INC.,

Defendant-Respondent.

_________________________

Submitted March 18, 2020 – Decided March 4, 2021

Before Judges Fuentes, Haas and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-1229-19.

Skolnick Legal Group, PC, attorneys for appellant 

(Ronald W. Solares, on the briefs).

Cole Schotz PC, attorneys for respondent (Adam, J. 

Sklar, of counsel and on the brief; Arnold P. Picinich, 

on the brief).

The opinion of the court was delivered by

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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FUENTES, P.J.A.D.

Plaintiff York Mechanical Corporation is a licensed contractor located in 

Union City that supplies and installs heating, ventilation, and air conditioning 

(HVAC) equipment. Defendant Kinney Construction Services, Inc., (KCS) is a 

construction service company located in Flagstaff, Arizona. At all times 

relevant to this case, defendant was the general contractor of a project located 

in Union City. Defendant hired plaintiff as a subcontractor to supply and install 

the project's HVAC equipment.

Plaintiff filed a civil action against defendant alleging breach of contract, 

unjust enrichment, quantum meruit, and violation of New Jersey's Prompt 

Payment Act (NJPPA), N.J.S.A. 2A:30A-1 to -2. Before joinder of issue, 

defendant filed a motion to dismiss plaintiff's complaint pursuant to Rule 4:6-

2(e), based on the contract's forum selection clause, which provides that any 

litigation that arises from the parties' contractual relationship shall be brought 

in Coconino County, Arizona. After hearing oral argument, the Law Division 

granted defendant's motion and dismissed plaintiff's complaint without reaching 

the merits of plaintiff's substantive claims. 

The dispositive issue raised in this appeal concerns the enforceability of 

the contract's forum selection clause. Plaintiff argues that enforcement of the 
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forum selection clause violates the public policy codified by the Legislature in 

the NJPPA. Alternatively, plaintiff argues it never agreed to be bound by the 

contract's forum selection clause. Finally, even if we were to reject these two 

threshold arguments, plaintiff claims that litigating this case in Arizona would 

be seriously inconvenient and impair its ability to prosecute its case. Defendant 

argues otherwise.

After reviewing the record developed before the Law Division and 

mindful of our standard of review, we reject plaintiff's arguments and affirm 

substantially for the reasons expressed by Judge Vincent J. Militello in his oral 

opinion delivered from the bench, as supplemented by his subsequent 

memorandum of decision.

I

Plaintiff's principal place of business is located in Union City, Hudson 

County. Defendant is located in Flagstaff, Arizona. Genterra Enterprises, LLC, 

(Genterra) hired defendant as general contractor of the construction project 

known as Sanitas Horizon Kennedy Center (Sanitas), located on Kennedy 

Boulevard in Union City, approximately seven blocks from plaintiff's office. 

As the general contractor, KCS hired all of the various trade 

subcontractors necessary to complete the Sanitas project. Through an online 
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portal, plaintiff submitted an HVAC subcontractor bid to defendant for the 

Sanitas project. Prior to the commencement of the bidding process, defendant 

sent an email to the bidders that stated: "Please send your proposal, BSA, 

[Blanket Subcontract Agreement] and any questions that you have about the 

project to the KCS employee responsible for your trade."

Plaintiff, through its representative Rick Agolli, downloaded the BSA on 

October 12, 2017. Defendant accepted plaintiff's $362,000 bid and awarded it 

the HVAC subcontract. On November 30, 2017, Agolli executed and returned 

the Purchase Order that outlined the goods and services plaintiff agreed to 

provide, as well as the BSA that contained the material terms of the parties'

contractual relationship.

Although Agolli did not sign the BSA, he initialed each page of the 

Purchase Order and made various handwritten modifications and strikeouts of 

sections he found objectionable. The last page of the Purchase Order, which 

required Agolli's signature to complete the subcontract, expressly provided:

This Purchase Order is subject to all of the terms and 

conditions of the Blanket Subcontract Agreement 

executed between the Subcontractor and Contractor. 

By signing this Purchase Order or commencing the 

work of this Purchase Order, the Subcontractor accepts 

all of the terms and conditions of the Kinney 

Construction Services Blanket Subcontract Agreement. 
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This Purchase Order together with the Blanket 

Subcontract constitute the entire Subcontract[.]

The cover page of the BSA states: "This Blanket Subcontract Agreement 

together with an executed project specific Purchase Order describing the work 

and Subcontract amount constitute the Subcontract." The first paragraph of the 

first page of the BSA states: "The Contractor and Subcontractor understand that 

engagement to execute a specific contract for work shall be confirmed through 

the execution of a project specific Purchase Order . . . . Contractor and 

Subcontractor, for the consideration named in a project specific Purchase Order, 

agree as follows[.]" 

The remainder of the BSA contains various references that highlight the 

incorporation of the BSA and the Purchase Order and makes clear that these two 

documents contain the material terms of the parties' contractual relationship. 

Indeed, Section 26.1 of the BSA, entitled "Entire Contract," provides: "This 

blanket subcontract agreement together with a written project specific purchase 

order describing the work and subcontract amount constitutes the entire 

subcontract between the parties." Of particular relevance here, Section 26.11 of 

the BSA, titled "Jurisdiction and Venue," provides: 

All terms of this Contract shall be governed by the laws 

of the State of Arizona. The jurisdiction and any suit 

or proceeding shall be in Coconino County, Arizona.
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The ramifications of this provision reverberate throughout the BSA. For 

example, Section 4, entitled "Payments," provides that claims for payment are 

governed by Arizona's Prompt Payment Act, A.R.S § 32-1181 to -1188.1 Section 

25.2, listed as "Immigration and Control Act," and Section 25.3, listed as 

"Employee Background Checks," also apply Arizona law. 

At some point after plaintiff began work on the subcontract, defendant 

terminated their contractual relationship. Plaintiff had been paid $112,000 of 

the $362,000 due under the contract. 

Defendant's motion to enforce the contract's forum selection clause came 

for oral argument before Judge Militello. Plaintiff argued that the forum 

selection clause was unenforceable because "the blanket subcontract agreement 

was never signed." Furthermore, plaintiff maintained that the NJPPA required 

the action to be tried in New Jersey. However, in response to Judge Militello's 

questions, plaintiff's counsel conceded that "the Purchased Order was signed." 

Defendant argued that the Purchase Order "[c]learly and unambiguously 

incorporates the blanket subcontract agreement." Thus, it was irrelevant 

whether the BSA was signed because the forum selection clause was 

1

 This section of the BSA references the former citation of the Arizona's Prompt 

Payment Act, which is A.R.S § 32-1129 to -1129.07.
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incorporated by reference in the Purchase Order. In response to plaintiff's 

invocation of the NJPPA as an insurmountable impediment to the enforcement 

of the forum selection clause, defendant's counsel argued that acceptance of 

plaintiff's position "would obviate every single forum selection clause in the 

construction industry." Defendant noted that plaintiff had not cited any

authority to indicate that the Legislature intended to bring about such a radical 

departure from well-settled principles of contract law when it adopted the 

NJPPA. 

At the conclusion of oral argument, Judge Militello granted defendant's 

motion and dismissed plaintiff's complaint. Relying on this court's opinion in 

Wilfred McDonald Inc. V. Cushman Inc., 256 N.J. Super. 58, 63-64 (App. Div. 

1992), the judge found plaintiff did not produce any evidence that the forum 

selection clause "was the product of fraud or overweening bargaining power." 

The judge also found no basis to conclude that adherence to the forum selection 

clause would violate a strong public policy of this State or seriously 

inconvenience plaintiff. Finally, Judge Militello found the BSA was a part of 

the subcontract because the Purchase Order included an "incorporation clause 

expressly referencing all provisions of the BSA." 
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II

This court "reviews de novo the trial court's determination of [a] motion 

to dismiss under Rule 4:6-2(e)." Dimitrakopoulos v. Borrus, Goldin, Foley, 

Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019). "Rule 4:6-2(e) 

motions to dismiss should be granted in 'only the rarest [of] instances.'" Banco 

Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005) (alteration in original) 

(quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 

(1989)). To decide this motion, we must assume the facts asserted by plaintiff 

in its pleading are true and "give [it] the benefit of all inferences that may be 

drawn in [its] favor." Gandi, 184 N.J. at 166. However, "if the complaint states 

no basis for relief and discovery would not provide one, dismissal is the 

appropriate remedy." Ibid. Finally, we must determine whether the motion 

judge correctly interpreted the law and the legal consequences that flow from 

established facts, without giving his findings and legal conclusions any special 

deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 

378 (1995).

Our Supreme Court has noted that "[i]f the language of a contract 'is plain 

and capable of legal construction, the language alone must determine the 

agreement's force and effect.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 
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99, 118 (2014) (quoting Twp. of White v. Castle Ridge Dev. Corp. 419 N.J. 

Super. 68, 74-75 (App. Div. 2011)); see also Watson v. City of E. Orange, 175 

N.J. 442, 447 (2003) ("Under our law, when the terms of a contract are clear and 

unambiguous, . . . the court must enforce those terms as written."). The same 

standard applies to integrated agreements. YA Global Investments, L.P. v. Cliff, 

419 N.J. Super. 1, 11 (App. Div. 2011).

"'[U]nder New Jersey law, two or more writings may constitute a single 

contract even though they do not refer to each other. Whether two writings are to 

be construed as a single contract, however, depends on the intent of the parties.'" 

Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 533 

(App. Div. 2009) (alteration in original) (quoting Van Orman v. Am. Ins. Co., 680 

F.2d 301, 306 (3d Cir. 1982)). "The basic question is whether the parties assented 

to a writing as the complete integration of their agreement." Alpert, 410 N.J. Super. 

at 533. The court in Alpert cited to Williston on Contracts for the principle of 

incorporation by reference in a contract:

Generally, all writings which are a part of the same 

transaction are interpreted together. One application of 

this principle is the situation where the parties have 

expressed their intention to have one document's 

provision read into a separate document. So long as the 

contract makes clear reference to the document and 

describes it in such terms that its identity may be 

ascertained beyond doubt, the parties to a contract may 
10 A-4654-18

incorporate contractual terms by reference to a 

separate, non-contemporaneous document, including a 

separate agreement to which they are not parties, and

including a separate document which is unsigned. . . . 

And, in order to uphold the validity of terms 

incorporated by reference, it must be clear that the 

parties to the agreement had knowledge of and assented 

to the incorporated terms. 

[Ibid. (alteration in original) (emphasis added) (quoting 

4 Williston on Contracts § 30:25 (Lord ed. 1999)).]

Therefore, "[i]n order for there to be a proper and enforceable 

incorporation by reference of a separate document, the document must be 

described in such terms that its identity may be ascertained beyond doubt and 

the party to be bound by the terms must have had 'knowledge of and assented to 

the incorporated terms,'" even when a document that is incorporated is not 

signed. Alpert, 410 N.J. Super. at 533.

Here, the BSA was clearly identified as a part of the agreement between 

the parties in the Purchase Order. The reference to the BSA was located directly 

above where plaintiff signed the subcontract. The record shows plaintiff's 

representative carefully reviewed the Purchase Order and read each page. 

Plaintiff's representative made several modifications and strikeouts and placed 

his initials at the bottom of every page. The record includes information listed 

on the online bidding portal, including the time and date plaintiff downloaded 
11 A-4654-18

the BSA. This showed that plaintiff, a sophisticated business entity,

acknowledged the BSA. Whether or not its representative reviewed the BSA 

before he executed the subcontract does not negate that the BSA was integrated 

by reference after it was clearly identified. 

Additional evidence or extrinsic evidence was not required to determine 

whether the BSA was incorporated by reference. Judge Militello properly 

determined that the BSA was incorporated by reference into the agreement 

between the parties:

After hearing arguments, I found that [p]laintiff had in 

fact consented to litigating all claims in Arizona, as 

evidenced by the Purchase Order. Specifically, I found 

it particularly telling that Mr. Agolli struck several 

provisions, added language to various sections, and 

initialed each page of the Purchase Order. For example, 

in Paragraph 7, Mr. Agolli crossed out the phrase "fully 

automated binding system." Moreover, in Paragraph 21 

of the Purchase Order, Mr. Agolli made note that 

coating would not be provided, despite contractual 

language to the contrary. Although these changes may 

seem slight, they were significant for purposes of the 

motion. Each edit suggested that Mr. Agolli not only 

read the Purchase Order, but carefully reviewed each 

line of the contract, including the forum selection 

clause. 

. . . . 

In opposition to the underlying motion, [p]laintiff 

argued that [d]efendant was asking the court to "make 

an extreme logical leap by requesting enforcement of 
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an agreement that was never signed." See Pl. Opp. 

Brief, pg. 5. . . . In Alpert, the court addressed whether 

a signed agreement, incorporating an unsigned 

agreement, could bind the parties. There, the 

defendants retained the plaintiff in a legal malpractice 

action. At the commencement of the relationship, the 

defendants signed a Retainer Agreement. While noting 

some billing details, the Retainer Agreement did not 

outline the firm's billing practices and policies. Rather, 

the agreement referenced a second document, or 

"Master Retainer," that contained such details. The 

defendants thereafter challenged the validity of the 

Master Retainer, arguing that they neither signed nor 

assented to the terms of the Master Retainer. 

The Alpert court acknowledged that New Jersey case 

law provides little guidance on the principle of 

incorporation by reference. Consequently, the court 

looked to Williston on Contracts[.]

. . . .

The Alpert court ultimately found that the Retainer 

Agreement did not define with sufficient specificity the 

Master Retainer. Rather, the Retainer Agreement 

simply reiterated that a client is bound "by our standard 

billing practices and firm policies." Alpert, supra, 410 

N.J. Super. at 535. This, the court reasoned, was not 

specific or identifiable "such that the [firm's] practices 

and policies may be ascertained beyond doubt." Ibid.

More importantly, the defendants were never shown a 

copy of the Master Retainer, and therefore, could not 

have assented to such. Unlike Alpert, [p]laintiff here 

had a copy of both the BSA and Purchase Order. Upon 

reviewing the Purchase Order, namely the 

incorporation clause, Mr. Agolli could have easily 

referred to the BSA. Similarly, the Purchase Order did 
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in fact specifically define the BSA. As noted, the clause 

in question stated: 

By signing this Purchase Order or 

commencing the work of this Purchase 

Order, the Subcontractor accepts all the 

terms and conditions of the Kinney 

Construction Services Blanket Subcontract 

Agreement. This Purchase Order together 

with the Blanket Subcontract constitute the 

entire Subcontract.

Not only does this provision identify the BSA, but it 

also clearly provides that these two agreements 

constitute the entire Subcontract (emphasis added). A 

simple reading of this clause would alert a reader that 

by signing one document, he is in turn, assenting to a 

second document. Therefore, this court can in fact make 

such [a] logical leap to infer that [p]laintiff did assent 

to the terms of the BSA by signing the Purchase Order.

We thus hold that Judge Militello properly determined that the BSA and 

the Purchase Order constituted the entire subcontract between the parties.

III

We next consider whether the NJPPA prohibits the enforcement of forum 

selection clauses. N.J.S.A. 2A:30A-2(f) of the NJPPA provides:

All contracts for the improvement of structures entered 

into after the effective date [Sept. 1, 2006] . . . between 

owners, prime contractors, subcontractors or 

subsubcontractors shall provide that disputes regarding 

whether a party has failed to make payments required 

pursuant to this section may be submitted to a process 

of alternative dispute resolution. Alternative dispute 
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resolution permitted by this section shall not apply to 

disputes concerning the bid solicitation or award 

process, or to the formation of contracts or 

subcontracts. In any civil action brought to collect 

payments pursuant to this section, the action shall be 

conducted inside of this State and the prevailing party 

shall be awarded reasonable costs and attorney fees.

[(emphasis added).]

Plaintiff argues that enforcement of the forum selection clause in the 

parties' agreement would violate the strong public policy underpinning the 

NJPPA. In support of this argument, plaintiff cites an unpublished opinion from 

this court. Rule 1:36-3 makes clear that absent certain exceptions not relevant 

here, "[n]o unpublished opinion shall constitute precedent or be binding upon 

any court." We thus will rely exclusively on published opinions from this court 

that have addressed the enforceability of forum selection clauses. 

Defendant argues the forum selection clause does not eviscerate the public 

policy codified in the NJPPA because an Arizona court is just as capable of 

enforcing the public policy protections in the statute as a New Jersey court. 

Stated differently, defendant argues that the agreed upon venue for this dispute 

may consider the evidence on the issues raised by the parties and apply New

Jersey law to determine whether plaintiff has presented a cognizable claim under 

the NJPPA.
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Defendant relies on our opinion in Wilfred, a case in which the plaintiff 

sought relief under the Franchise Practices Act, N.J.S.A. 56:10-1 to -31. The 

defendant moved to dismiss the plaintiff's Superior Court action and transfer 

venue to Nebraska pursuant to the franchise agreement's forum selection clause. 

256 N.J. Super. 61. Although the trial court recognized there were "substantial 

questions as to the applicability" of the Franchise Practices Act, it restrained the 

partial termination of the parties' contractual relationship to preserve the status 

quo. Id. at 62. 

In the context of this dispute, we were asked to consider whether 

enforcement of the forum selection clause, which would result in the application 

of the Franchise Practices Act by another state, would be contrary to our State's

public policy. We found no public policy impediment and upheld the forum 

selection clause. We noted that "[u]nderlying [the plaintiff's] notion is the 

premise that only New Jersey courts are equipped to properly interpret and apply 

the [Franchise Practices] Act and that to allow other state courts to do so would 

result in diverse and inconsistent applications." Id. 65. We rejected this 

isolationist notion and held that the same way we presume that "our courts fairly 

and competently analyze and apply other states' laws, courts in our sister states 

are capable of construing and applying our State's laws." Id. at 66.
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We also rejected a similar argument predicated on a section of the 

Franchise Practices Act which provides:

Any franchisee may bring an action against its 

franchisor for violation of this act in the Superior Court 

of the State of New Jersey to recover damages sustained 

by reason of any violation of this act and, where 

appropriate, shall be entitled to injunctive relief. Such 

franchisee, if successful, shall also be entitled to the 

costs of the action including but not limited to 

reasonable attorney’s fees.

[N.J.S.A. 56:10-10.]

We held that unlike other statutes which expressly preclude foreign forum 

selection clauses, N.J.S.A. 56:10-10 did not explicitly preclude enforcement of

a foreign forum selection in this context. Ibid. To conclude otherwise would 

constitute what the United States Supreme Court characterized in M/S Bremen 

v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972), as a "provincial" view.

In Hoffman v. Supplements Togo Management, LLC., we reaffirmed the 

analytical paradigm for determining the enforceability of forum selection 

clauses: "The courts of our State have generally enforced . . . forum selection 

clauses, where: (1) they are not the product of fraud or undue bargaining power, 

(2) they would not violate public policy, and (3) their enforcement would not 

seriously inconvenience the parties at trial." 419 N.J. Super. 596, 606 (App. 

Div. 2011), (citing Caspi v. Microsoft Network, L.L.C., 323 N.J. Super. 118, 
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122 (App. Div. 1999); Wilfred, 256 N.J. Super. at 63-64). Applying this 

approach to the facts of this case, we discern no legal grounds to overturn Judge 

Militello's order enforcing the forum selection clause. 

In Skuse v. Pfizer, Inc., our Supreme Court recently upheld an arbitration 

agreement that was disseminated by the employer to the employees via e-mail 

notice. The e-mail apprised the recipient that it contained a "mandatory review 

of an agreement along with other relevant documents within a prescribed period, 

and digital confirmation that the employee has reviewed the materials provided." 

244 N.J. 30, 57 (2020). In upholding the validity of this electronic notice and 

the enforceability of the arbitration provision transmitted therein, the Court 

noted that

no principle of New Jersey contract law bars 

enforcement of a contract because that contract is 

communicated by e-mail, rather than by the transfer of 

a hard-copy document. If we were to adopt such a rule, 

it would invalidate contracts that have been negotiated 

and transmitted electronically for decades. We decline 

to do so here.

[Id. at 54.]

In the course of its analysis, the Court in Skuse also approvingly quoted 

our opinion in Caspi, in which we upheld a duly negotiated forum selection 

clause because there "was nothing about the style or mode of presentation, or 
18 A-4654-18

the placement of the provision, that can be taken as a basis for concluding that 

the forum selection clause was proffered unfairly, or with a design to conceal or 

de-emphasize its provisions." 244 N.J. at 55, (quoting Caspi, 323 N.J. Super. at 

125-26).

Against this legal backdrop, we decline to construe the NJPPA to provide 

an indiscriminate statutory injunction prohibiting the enforcement of a duly 

negotiated and agreed upon forum selection clause. We are satisfied that had 

the Legislature intended to adopt such a significant deviation from our State's 

contract law jurisprudence, it would have done so using clear, unequivocal 

language.

Affirmed.