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AMATO v. MAPEI CORP.

December 12, 2005.

PETER AMATO, Plaintiff,
v.
MAPEI CORP., ROSSI USA CORP., and ROSSI SA FRANCE, Defendants.



The opinion of the court was delivered by: JAMES MUNLEY, District Judge

MEMORANDUM

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.

I. Background Facts

  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)).

  III. Standard

  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.

  IV. Discussion

  A. Rossi Motion

  Rossi argues that we should dismiss Amato's breach of contract claim and his breach of warranty claims. We will address these issues separately.

  1. Breach of Contract

  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 ...


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