The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Presently before the Court for disposition are Defendant Mapei
Corporation's Motion for Summary Judgment and Defendant Rossi USA
Corporation and Rossi SA France's (collectively "Rossi") Motion
for Summary Judgement. Rossi seeks summary judgment on Plaintiff
Peter Amato's Complaint and Mapei's cross claim for
indemnification. The parties have fully briefed and argued these
matters, and they are ripe for disposition. For the following
reasons we will grant Rossi's motion in its entirety and grant
Mapei's motion in part and deny it in part.
This action arises from the construction of the patio and pool
in Amato's home. Amato hired a contractor, M.J. Wesko, Inc., to
custom build his home. The project lasted from 1997 through 2001.
As part of this project, Wesko installed a limestone surface for
the patio and pool area. Wesko purchased Rossi's limestone pavers
as the surface, and installed the limestone with Mapei's
Grani/Rapid setting bed mortar. Wesko purchased the Grani/Rapid
Mortar from Arley Wholesale and/or Daltile, Mapei distributers in
Scranton, Pennsylvania. Amato was not involved in the decision to purchase
the Grani/Rapid mortar. (Mapei Mot. Summ. J. Exhibit B 11)
Rather, Wesko selected the mortar. (Mapei Mot. Summ. J. Ex. H at
¶ 7) The mortar instructions and packaging included a provision
limiting Mapei's liability for consequential and incidental
damages, as well as requiring thirty days written notice from the
date the claimant discovered, or reasonably should have
discovered, his claim. (Mapei. Mot. Summ. J. Ex. C, D) After the
installation of the limestone, it began to warp, crack, and curl.
On September 7, 2000, a Wesko representative called Mapei and
explained that he had installed french limestone with Grani/Rapid
mortar one year prior and the limestone had curled. (Mapi. Mot.
Summ. J. Ex. I)
Amato brings the instant action to recover for the damages
resulting from the limestone's cracking, curling, and cupping.
Count I is a claim for breach of the implied warranty of
merchantability against Mapei. Count II is a claim for breach of
the implied warranty of fitness for a particular purpose against
Mapei. Count III is a breach of contract claim against Mapei.
Count IV advances a claim for breach of express warranty against
Mapei. Count V is another breach of contract claim against Mapei.
Count VI is a breach of express warranty claim against Rossi.
Count VII advances a claim for breach of the implied warranty of
merchantability against Rossi. Count VIII puts forth a claim for
breach of the implied warranty of fitness for a particular
purpose against Rossi. Count IX is a breach of contract claim
against Rossi. II. Jurisdiction
This Court has jurisdiction pursuant to the diversity
jurisdiction statute, 28 U.S.C. § 1332. The plaintiff is an adult
individual residing at Rural Route One, Reynolds Road, Dalton,
Pennsylvania. Defendant Mapei is an Illinois corporation with its
principal place of business in Florida. Defendant Rossi USA Corp.
is an Illinois corporation with its principle place of business
in Illinois. Defendant Robert Rossi S.A. is a French corporation
with an agent authorized to accept service of process in
Illinois. Because we are sitting in diversity, the substantive
law of Pennsylvania shall apply to the instant case. Chamberlain
v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie
R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
Granting summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. See Knabe v.
Boury, 114 F.3d 407, 410 n. 4 (3d Cir. 1997) (citing FED. R.
CIV. P. 56(c)). "[T]his standard provides that the mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the motion.
International Raw Materials, Ltd. v. Stauffer Chemical Co.,
898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party
to demonstrate that the evidence is such that a reasonable jury
could not return a verdict for the non-moving party. Anderson,
477 U.S. at 248 (1986). A fact is material when it might affect
the outcome of the suit under the governing law. Id. Where the
non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing
that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the
non-movant's burden of proof at trial. Celotex v. Catrett,
477 U.S. 317, 322 (1986). Once the moving party satisfies its burden,
the burden shifts to the nonmoving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories showing
that there is a genuine issue for trial. Id. at 324.
Rossi argues that we should dismiss Amato's breach of contract
claim and his breach of warranty claims. We will address these
Rossi argues that we should grant summary judgment on the
contract claim because Rossi and Amato had no contract, and even
if they did, Rossi did not breach it. Amato does not assert that
he had a contract with Rossi, but instead argues that he was a
third party beneficiary of Wesko's limestone purchase from Rossi. Whether
Amato is a third party beneficiary is an issue of law. See
Hicks v. Metropolitan Edison Co., 665 A.2d 529, 536 (Pa.Commw.
Ct. 1995). We find that Amato has failed to create a genuine
issue of material fact that he was the third party beneficiary ...