The opinion of the court was delivered by: KATZ
Plaintiff Prime Building Corporation (Prime) commenced this action by filing a four count complaint against defendant Itron, Inc (Itron). Itron now moves for summary judgment on liability for all for counts and alternatively requests summary judgment on various damages issues. Because there are genuine issues of material fact on all four counts, the summary judgment motion on liability will be denied. As those factual disputes also affect the calculation of damages, Itron's motion for summary judgment on damages will also be denied.
On May 6, 1996, Itron's Senior Implementation Project Manager, Joe Ruggeri, and Prime's President, Ed Pridgen, attended a vendors' conference held by the City of Philadelphia to explain aspects of its Request for Proposal to all contractors interested in submitting bids for an Automatic Meter Reading (AMR) project. At the meeting, the City specifically requested subcontract participation by Disadvantaged Business Enterprises (DBEs). Prime is a certified disabled DBE.
Following the meeting, Ruggeri spoke with Pridgen and told him that Itron was interested in submitting a bid and wanted to discuss Prime's participation in the project. On May 15, 1996, Prime sent Itron a two page bid proposal for the administrative and customer service portion of the AMR project. Following discussion of the proposal, on approximately June 28, Itron submitted to the City a proposal that listed Prime as the Disabled-DBE subcontractor for "construction management, field installation, [and] administrative support installing." See Def.'s App. Ex. H. The City's form includes an explicit statement that listing a minority subcontractor in this position is a commitment to that firm by the primary bidder, although there are provisions by which the primary contractor can request a change of subcontractors. See Def.'s Ex. G at 7, 5. Itron submitted the Commitment form to the Minority Business Enterprise Council (MBEC) on April 29, 1997, although it attempted to reserve the right to add or replace DBE subcontractors as necessary. See Pl.'s App. Ex. 11.
On June 4, 1997, Itron called a meeting for subcontractors to discuss a new Statement of Work. The significance of this meeting is hotly disputed. Prime contends that Pridgen (its president) and the other Prime attendees had no idea Prime was in competition with the other subcontractors; Itron argues that Prime must have known that it faced competition given the presence of other subcontractors to whom Prime was introduced. According to Prime, however, following the meeting, Pridgen and Daniel O'Connell, Prime's Senior Project Manager, sought assurances that Itron was still committed to Prime. O'Connell and Pridgen both claim that Thomas Shenyey, Itron's AMR Project Manager, told them that they did not face competition for the work. See Def.'s Ex. B at 64-67; Def.'s Ex. C at 59, 60. Shenyey denies having said or implied that Prime faced no competition. See Def.'s Ex. D at 72-73.
Subsequently, on July 10, 1997, Itron executed the AMR contract with the city, stating that Prime would be utilized as a contract participant. See Pl.'s App Ex. 22. However, on August 1, 1997, Pridgen and O'Connell met with Itron representatives Graham and Shenyey, at which point Prime was informed that the administrative and customer services portion of the contract had been awarded to another group, VSI.
On August 4, 1997, Prime informed Itron of its intention to initiate legal action; soon thereafter, Itron requested that the MBEC permit Itron to reduce Prime's percentage participation in the AMR project. The MBEC rejected this request and convened a meeting with Prime, Itron, and City representatives to attempt to resolve the matter.
At this meeting, Itron listed four remaining work projects for which it did not have subcontractors. Prime contends that this meeting established that Prime was to perform warehousing and tenant build-out construction for Itron; Itron denies that there was any agreement that Prime would definitely perform the warehousing services. Although a contract was negotiated and signed regarding the tenant build-out construction, after receiving a proposal from Prime regarding the warehousing portion, Itron informed the MBEC that it intended to perform this work in-house. Prime alleges that it was unaware of Itron's decision until December 2, 1997.
On December 5, 1997, Itron sent Prime a letter directly informing it that Itron would perform the warehouse work in-house. See Pl.'s App. Ex. 35. On January 8, 1998, the MBEC approved Itron's second request for a reduction in Prime's participation. See Pl.'s App. Ex. 36.
There is also dispute regarding the contract that was actually signed between Prime and Itron for the tenant build-out work. On March 12, 1998, Prime received notice that it was being fined $ 4,310 for beginning construction without the required permits. Although the contract between Prime and Itron clearly states that Prime is to be responsible for acquiring needed permits, see Compl. Ex. B. art. II; id. Ex. A, Prime sent a letter to Itron on March 25, 1998, saying that Prime would not accept responsibility for the fines because Itron's failure to secure drawings had resulted in the denial of the permits. See Pl.'s App. Ex. 38. Itron denied at the time that it had any liability, stating that Prime had undertaken to secure the proper drawings. See Pl.'s App. Ex. 39.
Based on these disputes, Prime brings this four-count suit against Itron. Count II alleges that Itron initially breached the agreement by which it committed to using Prime as the subcontractor for the administrative and customer service work. Count I alleges that Itron breached a subsequent agreement between the two companies by which Prime would perform warehousing support work. Prime claims in Count III that Itron fraudulently induced Prime to incur personnel costs in preparing its bid proposals for the aforementioned work projects; it states that Itron never intended to work with Prime but used them only to comply with the DBE requirements. Finally, Count IV alleges that Itron breached its duty to obtain permits in connection with construction fit-out work that Prime actually performed pursuant to the September 8, 1997 contract.
In response to Itron's Motion for Summary Judgment, Prime has demonstrated the existence of a genuine issue of material fact with respect to each count. ...