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American Stores Properties, Inc. v. Spotts

August 13, 2009


The opinion of the court was delivered by: Slomsky, J.



The above-captioned matter is a complex construction case arising from the alleged failure and distress of three retaining walls at Plaintiff American Stores Properties, Inc.'s ("ASPI") food distribution center in Denver, Pennsylvania (the "Distribution Center"). Plaintiff commenced this action on March 29, 2005 and filed its Amended Complaint (Doc. No. 2) on July 22, 2005, naming as defendants twelve parties that were involved in various aspects of the construction of the retaining walls. The named defendants are: (1) Spotts, Stevens & McCoy, Inc. ("SSM"); (2) Clark/Epstein;*fn1 (3) The Clark Construction Group, Inc.; (4) A. Epstein & Sons, International, Inc.; (5) Earth Engineering, Inc.; (6) Handwerk Contractors;*fn2 (7) MacCaferri Gabions, Inc.; (8) Baseline Contracting, Inc.; (9) Haines & Kibbelhouse, Inc.; (10) High Associates, Ltd. ("High"); (11) CBL Service Corporation (f/k/a Lenders Support Group, Inc.) ("CBL/LSG"); and (12) Timothy E. Debes.

Currently before the Court is Defendant High's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 filed on October 1, 2007 (Doc. No. 148).*fn3 Plaintiff filed its Opposition to High's Motion for Summary Judgment (Doc. No. 166) on November 16, 2007. On November 26, 2007, High filed a Reply in support of its Motion for Summary Judgment (Doc. No. 167).

This action was transferred to the docket of this Court on April 30, 2009.


Plaintiff's claims against High arise out of High's role in the construction of the Distribution Center for ASPI. Because of the uneven geological foundation of the land on which the Distribution Center was built, gabion retaining walls were required to lay the proper foundation for the building. (Pl. Compl., ¶22.) A gabion retaining wall is composed of gabions, or stone-filled wire baskets, that are stacked together to create an earth retaining wall. (Id., ¶ 28.)

In 1996, ASPI entered into an Entitlement Services Agreement with High to engage in commercial development of the Distribution Center (the "ASPI-High Agreement"). (Id., ¶17.) High agreed to manage the civil design and the procurement of entitlements (i.e. obtaining the necessary permits) for the development on behalf of ASPI. (Id.) The ASPI-High Agreement authorized High to select and hire subcontractors to prepare engineering investigations, reports, plans and specifications for the site work that would be required at the Distribution Center. (Id.) High contracted with Defendant CBL/LSG for the provision of geotechnical engineering services (the "High-CBL/LSG Agreement"). (Id.,¶18.) CBL/LSG performed subsurface explorations of the Distribution Center site and made design recommendations, including those for the retaining walls that were to be built and installed at the site. (Id., ¶19.) On January 13, 1997, Defendant Timothy E. Debes, an employee of CBL/LSG, issued a Subsurface Exploration Report of Building No. 264 Project*fn4 (the "Soils Report"), which he signed and professionally sealed as conforming "with the recognized standard geotechnical engineering procedures, while employing good customary and commercial practice." (Id., ¶21; Pl. Ex. A. at 40.)

Also pursuant to the ASPI-High Agreement, on March 17, 1997, High entered into an agreement with Defendant SSM for the provision of civil engineering services for the development of the Distribution Center (the "High-SSM Agreement").*fn5 (Pl. Compl., ¶ 24.) Plaintiff eventually entered into a similar agreement with SSM (the "ASPI-SSM Agreement") on September 10, 1998. (Id., ¶ 26.) Pursuant to the High-SSM Agreement and the ASPI-SSM Agreement, SSM allegedly agreed to provide civil engineering plans and specifications for all site improvements at the Distribution Center, including the preparation of construction plans and specifications for site retaining walls; construction, observation, and inspection of the site retaining walls; and other construction administration services. (Id.)

Five gabion retaining walls were designed and constructed at the Distribution Center. (Pl. Compl.,¶ 41.) The walls were identified on the construction plans as Wall Nos. 1, 2, 3, 4 and 5. (Id.) Plaintiff alleges that Wall No. 1 shows signs of distress from excessive movement and will eventually fail in its entirety if it is not repaired or replaced. (Id.) Wall No. 2 also shows signs of distress and a 40-foot section has already completely failed. (Id.) Portions of Wall No. 4 also show signs of distress. (Id.) Plaintiffs contend that the failure of Wall No. 2 and the evident distress in the other walls have progressed to the point where they will only become worse unless repaired or replaced. (Id.) The walls were designed to have a "useful life" in excess of 25 years and the distress and signs of movement within the walls are not normal and were not expected. (Id., ¶ ¶ 42, 43.)

Plaintiff has brought three claims against High. Each claim alleges that High breached the ASPI-High Agreement as a result of a co-defendant's breach of a subcontract with High. Count I of the Amended Complaint alleges breach of the ASPI-High Agreement as a result of Defendant CBL/LSG's breach of the High-CBL/LSG Agreement. Count II of the Amended Complaint also alleges breach of the ASPI-High Agreement, but this time as a result of Defendant SSM's breach of the High-SSM Agreement. Count III of the Amended Complaint alleges breach of warranties provided in the ASPI-High Agreement, which were allegedly caused by Defendants CBL/LSG and Timothy Debes having negligently carried out their performance of the High-CBL/LSG Agreement. High has moved for summary judgment on all claims.


Granting summary judgment is an extraordinary remedy. Summary judgment is only appropriate "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." Fed. R. Civ. P. 56(c). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court's task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Liberty Lobby, 477 U.S. at 247-49.

In ruling on a motion for summary judgment, the Court must view the evidence, and make all reasonable inference from the evidence, in the light more favorable to the nonmoving party. Liberty Lobby, 477 U.S. at 252. Whenever a factual issue arises which cannot be resolved without a credibility determination, at this stage the Court must credit the nonmoving party's evidence over that presented by the moving party. Liberty Lobby, 477 U.S. at 255. Distilled to its essence, the summary judgment standard requires the ...

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