United States District Court, M.D. Pennsylvania
D. Mariani, Judge
Introduction and Procedural History
before the Court is a Motion for Summary Judgment, (Doc. 81),
filed by two of the four Defendants in this case. As a result
of this Court's ruling on Defendants' prior Joint
Motion to Dismiss, (Docs. 49, 50), Plaintiffs Complaint,
(Doc. 1), has five of the original eleven counts remaining,
all concerning a series of contracts for natural gas pipeline
construction. Count I, a breach of contract claim, and Count
V, a claim pursuant to Pennsylvania's Contractor and
Subcontractor Payment Act, 73 P.S. § 501 et
seq. ("CASPA"), are against Defendants
Chesapeake Operating, Inc. and Chesapeake Energy Corporation
(collectively "the Chesapeake Defendants"). Count
VI, a breach of contract claim, Count X, a claim pursuant to
CASPA, and Count XI, a fraud claim, are against Defendants
Access Midstream Partners, L.P., and Appalachia Midstream
Services, L.L.C., (collectively "the Access
Defendants"). The Access Defendants have brought the
present Motion for Summary Judgment. For the reasons that
follow, the Court will grant in part and deny in part the
Access Defendants' Motion.
Statement of Undisputed Facts
accordance with Local Rule 56.1, the Access Defendants
submitted a Statement of Material Facts in Support of its
Motion for Summary Judgment, (Doc. 83), as to which it
contends that there is no genuine dispute for trial, and
Plaintiff submitted a response, (Doc. 96). Both parties seem
to have disregarded the purpose of Local Rule 56.1, however,
with the Access Defendants making inferential leaps from
their factual assertions that would have been more
appropriate in the argument section of their brief, and
Plaintiff refusing to admit statements that are seemingly
undeniable, issuing denials based on pedantic distinctions,
or denying an assertion while embedding an admission within
the "denial." Nevertheless, the Court has gleaned
the following undisputed facts from the record:
STI Oilfield Services, Inc., is a pipeline contractor. (Doc.
83 at¶4; Doc. 96 at ¶ 4). In 2011, Plaintiff
entered into a Master Service Agreement ("MSA").
(Doc. 83 at ¶ 44; Doc. 96 at ¶ 44). The front page
of the MSA stated that it was between "CHEASPEAKE
OPERATING, INC. and any present or future subsidiaries or
affiliates named directly or indirectly by Chesapeake
Operating, Inc. (herein collectively 'Company')"
and "STI Group: Southeast Texas Industries Inc., STIS,
Inc., STI-Oilfield Services Inc., and any present or future
subsidiaries or affiliates named directly or indirectly by
STI Group: Southeast Texas Industries Inc., STIS, Inc.,
STI-Oilfield Services Inc., (herein collectively
'Contractor')." (MSA, Doc. 83, Ex. 26). At the
time the MSA was executed, paperwork filed with the U.S.
Securities and Exchange Commission listed Chesapeake Energy
Corporation as owning part of both Chesapeake Operating and
Chesapeake Midstream Partners. (Chesapeake Energy
Corporation, Annual Report, Doc. 83, Ex. 21; Chesapeake
Midstream Partners, LP,, Prospectus, Doc. 83, Ex. 22). Then,
sometime in mid-2012, Chesapeake Energy Corporation sold all
of its interest in Chesapeake Midstream Partners. (Doc. 83 at
¶ 33; Doc. 96 at ¶ 33). On July 24, 2012,
Chesapeake Midstream Partners changed its corporate name to
Access Midstream Partners, L.P. (Doc. 83 at ¶ 30-31;
Doc. 96 at ¶ 30-31). No other MSA exists between the
Access Defendants and Plaintiff. (Doc. 83 at ¶ 54; Doc.
96 at ¶54).
in August of 2012, Plaintiff bid on and was awarded a series
of four contracts with the Access Defendants. (Doc. 83 at
¶¶ 71, 76, 84, 86, 96, 98, 108, 110; Doc. 96 at
¶¶ 71, 76, 84, 86, 96, 98, 108, 110). The four
contracts concerned four natural gas pipeline construction
projects. (Doc. 83 at ¶¶ 38, 69, 82, 94, 106; Doc.
96 at ¶¶ 38, 69, 82, 94, 106). The four main
projects, each of which were composed of a series of smaller
projects, were colloquially known as Black West, Zaplok East,
Welded West, and Zaplok West. (Doc. 83 at ¶¶ 38,
69, 70, 82, 83, 94, 95, 106, 107; Doc. 96 at ¶¶ 38,
69, 70, 82, 83, 94, 95, 106, 107).
four contracts arose in the following fashion. Prior to
bidding, Plaintiff was given several documents, including the
"Instruction to Bidders" ("ITB"), and the
"Scope of Work" ("SOW"). (Doc. 83 at
¶ 56; Doc. 96 at¶¶ 56, 61). These documents
described what work Plaintiff was bidding on. The ITB, among
other things, defined the scope of work for the contracts to
include "the following documents: 1) Scope of Work 2)
Contracts Documents 3) Erosion, Sedimentation, Pollution
Control (ESPC) Plans including Restoration Plans 4)
Construction Alignment Sheets 5) Right-of-Way LOWs 6) COMPANY
Standards 7) COMPANY Specifications 8) Project Schedule 9)
CONTRACTOR Safety Manual 10) COMPANY/CONTRACTOR Master
Services Agreement." (ITB, Doc. 83, Ex. 32 at §
then submitted bids on each of the four projects. (Doc. 83 at
¶¶ 69, 82, 94, 106; Doc. 96 at ¶¶ 69, 82,
94, 106). The Access Defendants then issued a Notice of Award
if they accepted the bid. (Doc. 83 at ¶¶ 76, 85,
98, 110; Doc. 96 at ¶¶ 76, 85, 98, 110). Plaintiff
received a Notice of Award for the Black West Project on
September 18, 2012, (Doc. 83 at ¶ 76; Doc. 96 at ¶
76), for the Zaplok East Project and the Welded West Project
on October 5, 2012, (Doc. 83 at ¶¶ 85, 98; Doc. 96
at ¶¶ 85, 98), and for the Zaplok West Project on
November 21, 2012. (Doc. 83 at ¶ 110; Doc. 96 at ¶
110). Upon acceptance of the bid, several documents,
including the ITB, became part of the agreements. (Doc. 83 at
¶ 66; Doc. 96 at¶ 66). The result being that each
"contract" is not a single self-contained document,
but a compilation of several documents which became a
contract when the Access Defendants accepted each of
the end of 2012 until mid-2013 Plaintiff performed the
pipeline construction work. (Doc. 83 at ¶ 1; Doc. 96 at
¶ 1). After work was complete, Plaintiff filed the
present lawsuit, alleging: (1) the Access Defendants
fraudulently induced Plaintiff into the four contracts by
falsely promising to pay certain contingencies if Plaintiff
took them out of its bid; (2) the Access Defendants breached
the contracts by failing to pay Plaintiff for a variety of
work Plaintiff performed; and (3) the Access Defendants
violated CASPA by failing to pay Plaintiff for work
performed. (Doc. 1).
Standard of Review
summary adjudication, the court may dispose of those claims
that do not present a "genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). "As to
materiality, .... [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has
been made, the non-moving party must offer specific facts
contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Natl Wildlife
Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111
L.Ed.2d 695 (1990). Therefore, the non-moving party may not
oppose summary judgment simply on the basis of the pleadings,
or on conclusory statements that a factual issue exists.
Anderson, 477 U.S. at 248. "A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by citing to particular parts of materials in
the record ... or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). In
evaluating whether summary judgment should be granted,
"[t]he court need consider only the cited materials, but
it may consider other materials in the record."
Fed.R.Civ.P. 56(c)(3). "Inferences should be drawn in
the light most favorable to the non-moving party, and where
the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as
true." Big Apple BMW, inc. v. BMW of N.
Am., inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert,
denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659
"facts must be viewed in the light most favorable to the
nonmoving party only if there is a 'genuine' dispute
as to those facts." Scott v. Harris, 550 U.S.
372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). If a party
has carried its burden under the summary judgment rule, its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. 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. When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment. Id. (internal quotations,
citations, and alterations omitted).
Access Defendants have put forth several arguments for why
they believe they are entitled to summary judgment. While
some of their arguments focus on why judgment should be
entered in their favor on certain counts, most of the
arguments attack Plaintiffs specific theories of liability
under its breach of contract claim. In Pennsylvania,
"[t]o successfully maintain a cause of action for breach
of contract the plaintiff must establish; (1) the existence
of a contract, including its essential terms, (2) a breach of
a duty imposed by the contract, and (3) resultant
damages." Hart v. Arnold, 884 A.2d 316, 332
(Pa. Super. Ct. 2005).
is well established that the intent of the parties to a
written contract is to be regarded as being embodied in the
writing itself, and when the words are clear and unambiguous
the intent is to be discovered only from the express language
of the agreement." Steuart v. McChesney, 444
A.2d 659, 661 (Pa. 1982). "[W]here language is clear and
unambiguous, the focus of interpretation is upon the terms of
the agreement as manifestly expressed, rather than as,
perhaps, silently intended." Id., "Clear
contractual terms that are capable of one reasonable
interpretation must be given effect without reference to
matters outside the contract." Krizovensky v.
Krizovensky, 624 A.2d 638, 642 (Pa. Super. Ct. 1993).
Further, "[w]here several instruments are made as part
of one transaction they will be read together, and each will
be construed with reference to the other; and this is so
although the instruments may have been executed at different
times and do not in terms refer to each other."
Huegel v. Mifflin Const. Co., Inc., 796 A.2d 350,
354-55 (Pa. Super. Ct. 2002) (quoting Neville v.
Scott, 127 A.2d 755, 757 (Pa. Super. Ct. 1957)).
Pennsylvania Supreme Court has noted that
[t]here is nothing sacrosanct about a written agreement.
Granted that writing makes for specificity and clarity,
reduces the chances for errors, and allows for constant
reference as to what was agreed upon, it nevertheless holds
no superior position over an oral compact in the realm of
authoritative utterances, except where the Statute of Frauds
intervenes or is invoked. The most ironclad written contract
can always be cut into by the acetylene torch of parol
modification supported by adequate proof. In Achenbach v.
Stoddard, 253 Pa. 338, 98 A. 604, 605, this Court held:
"It is always competent for the parties to a written
contract to show that it was subsequently abandoned in whole
or in part, modified, changed, or a new one substituted. And
this may be shown by parol, by showing either an express
agreement or actions necessarily involving the
Even where the contract specifically states that no
non-written modification will be recognized, the parties may
yet alter their agreement by parol negotiation. The hand that
pens a writing may not gag the mouths of the assenting
parties. The pen may be more precise in permanently recording
what is to be done, but it may not still the tongues which
bespeak an improvement in or modification of what has been
Wagner v. Graziano Constr. Co., 136 A.2d 82, 83-84
written contract which is not for the sale of goods may be
modified orally, even when the written contract provides that
modifications may only be made in writing." Somerset
Cmty. Hosp. v. Allan B. Mitchell & Assocs., Inc.,
685 A.2d 141, 146 (Pa. Super. Ct. 1996). "An agreement
that prohibits non-written modification may be modified by
subsequent oral agreement if the parties' conduct clearly
shows the intent to waive the requirement that the amendments
be made in writing." Id. "A written
agreement can be modified by a subsequent oral agreement
provided the latter is based upon a valid consideration and
is proved by evidence which is clear, precise and
convincing." Crown v. Cole, 236 A.2d 532, 534
(Pa. Super. Ct. 1967). "[T]he mere suggestion or
possibility of a contract arising from transactions between
the parties is not enough; there must be evidence authorizing
more than a conjecture or surmise." Gloeckner v.
Sch. Dist. of Baldwin Twp., 175 A.2d 73, 75 (Pa. 1961)
(quoting Knight v. Gulf Refining Co., 166 A. 880,
882 (Pa. 1933)). "This heightened burden of proof should
be taken into account in ruling on summary judgment."
Justofin v. Metro. Life Ins. Co., 372 F.3d 517, 521
(3d Cir. 2004).
Count XI of the Complaint, Plaintiff claims that the Access
Defendants fraudulently induced Plaintiff to enter into the
contracts by promising that the Access Defendants would pay
for all Plaintiff's weather related contingencies if
Plaintiff removed its weather related contingencies from its
final bids. (Doc. 1 at ¶¶ 111-118). The Access
Defendants argue that they are entitled to summary judgment
on this count because the parol evidence rule bars Plaintiff
from introducing any evidence of oral promises concerning
subjects addressed in the contract. (Doc. 82 at 5-6).
parol evidence rule provides that:
Where the parties, without any fraud or mistake, have
deliberately put their engagements in writing, the law
declares the writing to be not only the best, but the only,
evidence of their agreement. All preliminary negotiations,
conversations and verbal agreements are merged in and
superseded by the subsequent written contract and unless
fraud, accident or mistake be averred, the writing
constitutes the agreement between the parties, and its terms
and agreements cannot be added to nor subtracted from by
Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d
425, 436 (Pa. 2004) (quoting Gianni v. Russell
<& Co., 126 A. 791, 792 (Pa. 1924)) (internal
alterations omitted). "With regard to the [rule's]
exception for fraud, [the Pennsylvania Supreme Court] has
restricted the exception to allegations of fraud in the
execution of a contract, and has refused to apply the
exception to allegations of fraud in the inducement of a
contract." Toy v. Metro. Life Ins. Co., 928
A.2d 186, 204-05 (Pa. 2007). In other words, parol evidence
may be admitted based on a party's claim that "a
term was fraudulently omitted from the contract" but not
on a claim that "an opposing party made false
representations that induced the complaining party to agree
to the contract." Yocca, 854 A.2d at 437 n.26.
¶]f it were otherwise the parol evidence rule would
become a mockery, because all a party to the written contract
would have to do to avoid, modify or nullify it would be to
aver (and prove) that the false representations were
fraudulently made." Bardwell v. Willis
Co., 100 A.2d 102, 104 (Pa. 1953) (emphasis original).
Thus, when the parol evidence rule applies to a particular
contract, it bars any fraud in the inducement claims
pertaining to that contract. Hart, 884 A.2d at
34041; Rahemtulla v. Hassam, 539 F, Supp. 2d 755,
773-74 (M.D. Pa. 2008).
the above in mind, the Court must first determine if the
parol evidence rule applies to these contracts.
[F]or the parol evidence rule to apply, there must be a
writing that represents the "entire contract between the
parties." To determine whether or not a writing is the
parties' entire contract, the writing must be looked at
and "if it appears to be a contract complete within
itself, couched in such terms as import a complete legal
obligation without any uncertainty as to the object or extent
of the parties' engagement, it is conclusively presumed
that the writing represents the whole engagement of the
parties." Yocca, 854 A.2d at 436 (quoting
Gianni, 126 A. at 792) (internal alterations and
citations omitted). When a contract "represents a final
and complete expression of the parties' agreement, "
it is considered integrated. Lenzi v. Hahnemann
Univ., 664 A.2d 1375, 1379
(Pa. Super. Ct. 1995). "The issue of whether a writing
constitutes an integrated contract is a question of
law." Id. "An integration clause which
states that a writing is meant to represent the parties'
entire agreement is ... a clear sign that the writing is
meant to be just that and thereby expresses all of the
parties' negotiations, conversations, and agreements made
prior to its execution." Yocca, 854 A.2d at
there is an integration clause in the MSA signed by Plaintiff
which reads "[t]his Agreement contains the entire
agreement of the parties and supersedes any and ail prior
negotiations or understandings, whether written or
oral." (MSA, Doc. 83, Ex. 26 at § 17).
the IBT provides that the scope of work to include
"COMPANY/CONTRACTOR Master Service Agreement (CONTRACTOR
must have one in place)." (ITB, Doc. 83, Ex. 32 at
2.08). Thus, it appears that the IBT incorporates the MSA
into it by reference and the MSA's integration clause is
"a clear sign that the writing ... expresses all of the
parties' negotiations, conversations, and agreements made
prior to its execution." Yocca, 854 A.2d at
436. Plaintiff, however, argues that no MSA was in place
between it and the Access Defendants. (Doc. 95 at 8-10).
Plaintiff puts forth six arguments for why the Access
Defendants are not party to the MSA.
Plaintiff argues that the MSA was between Plaintiff and
Chesapeake Operating, Inc., not either of the Access
Defendants. (Id. at 8). The MSA, however, states
that it is between "CHEASPEAKE OPERATING, INC. and any
present or future subsidiaries or affiliates named directly
or indirectly by Chesapeake Operating, Inc. (herein
collectively 'Company')" and Plaintiff. (MSA,
Doc. 83, Ex. 26). At the time it was signed, Chesapeake
Midstream Partners and Appalachia Midstream Services, LLC,
were either subsidiaries or affiliates of Chesapeake
Operating. (Chesapeake Energy Corporation, Annual Report,
Doc. 83, Ex. 21; Chesapeake Midstream Partners, LP.,
Prospectus, Doc. 83, Ex. 22; Chesapeake Midstream Partners,
LP., Annual Report, Doc. 83, Ex. 53). Thus, when Plaintiffs
bids were accepted, the MSA was between Plaintiff and, among
others, Chesapeake Midstream Partners and Appalachia
sometime in mid-2012, Chesapeake Energy Corporation sold all
of its interest in Chesapeake Midstream Partners, and
Chesapeake Midstream Partners changed its corporate name to
Access Midstream Partners, L.P. (Doc. 83 at ¶¶ 30,
31, 33; Doc. 96 at ¶¶30, 31, 33). This transaction
and accompanying name change, however, did not revoke the MSA
between the parties. See Bruno v. Bozzuto's,
Inc., 850 F.Supp.2d 462, 466 (M.D. Pa. 2012)
("Though a corporation changes its name, its identity
does not change."); see also 18A Am. Jur. 2d
Corporations § 234; 18 C.J.S.
Corporations § 140. Thus, the Court rejects
Plaintiff's argument that there was never an MSA between
Plaintiff and the Access Defendants.
next argues that the MSA was not incorporated into the
contracts with Access because the ITB does not identify the
MSA with sufficient specificity. (Doc. 95 at 9).
"[U]nder Pennsylvania law, '[i]ncorporation by
reference is proper where the underlying contract makes clear
reference to a separate document, the identity of the
separate document may be ascertained, and incorporation of
the document will not result in surprise or
hardship.'" Chesapeake Appalachia, LLC v. Scout
Petroleum, LLC, 809 F.3d 746, 761 (3d Cir. 2016) (second
alteration original) (quoting Std. Bent Glass Corp. v.
Glassrobots Oy, 333 F.3d 440, 447 (3d Cir. 2003)).
the ITB makes clear that the "COMPANY/ CONTRACTOR Master
Service Agreement" is part of the contracts. (ITB, Doc.
83, Ex. 32 at 2.08). The identity of the MSA can be
ascertained as it is the only MSA ever executed between
Plaintiff and the Access Defendants. (Doc. 83 at ¶ 54,
Doc. 96 at ¶ 54). Further, it appears that Plaintiffs
employees referred to the MSA in several emails during and
after the time Plaintiff was bidding on the four projects.
(Sept. 10, 2012, email from Clark McLane to Jim Gipson, Doc.
83, Ex. 30; July 10, 2013, email from Hershel Rhodes to Dan
Montgomery and Andrew Bonno, Doc. 83, Ex. 29; July 10, 2013,
email from Hershel Rhodes to Jerrold Gill and others, Doc.
83, Ex. 31). Although Plaintiff argues that these emails do
not specify which MSA the employees are referring to, (Doc.
96 at ¶ 55), Plaintiff admits there was only one MSA
ever executed by it. (Id. at ¶ 54). Plaintiff
offers no citation to the record to show that its employees
could be referring to any other MSA. See Scott, 550
U.S. at 380 ("[W]here the moving party has carried its
burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts."). Finally, incorporating the MSA by
reference will not result in surprise or hardship as
Plaintiff independently agreed to the terms of the MSA months
before bidding on the pipeline contracts with the Access
Defendants, and was aware of the MSA during and after the
bidding process. (MSA, Doc. 83, Ex. 26; Sept. 10, 2012, email
from Clark McLane to Jim Gipson, Doc. 83, Ex. 30; July 10,
2013, email from Hershel Rhodes to Dan Montgomery and Andrew
Bonno, Doc. 83, Ex. 29; July 10, 2013, email from Hershel
Rhodes to Jerrold Gill and others, Doc. 83, Ex.31).
final argument for why the MSA was not incorporated into its
contracts with Access is that "Hershel Rhodes...
[Plaintiffs] Contracts Manager, testified that Andrew
Bonno... from Access told him that [Plaintiff] would be
receiving a separate MSA with Access when the [name] change
was complete." (Doc. 95 at 9). Plaintiff goes on to
explain that Access never provided Plaintiff with a new MSA.
This does not, however, change the fact that Plaintiff was a
signatory to the 2011 MSA with Access at the time it
submitted its bids to Access.
light of the above, the Court finds that the MSA was
incorporated into the four contracts. The Court further finds
that because the contracts contain integration clauses, and
are otherwise of a complete nature,  the contracts are fully
integrated. The Court therefore turns to the question of how
this affects Plaintiff's fraud count.
claims that Mr. Edmonds, an employee of Access Midstream,
requested that Plaintiff "remove its winter
contingencies from its bids in exchange for the Access
Defendants agreeing to compensate [Plaintiff] for any delays
or losses because of weather conditions and stand
downs." (Doc. 95 at 11). Plaintiff subsequently
submitted bids to the Access Defendants that did not
reference these oral agreements. The ITB, which Plaintiff had
at the time of bidding and which became part of each contract
when Plaintiff's bids were accepted, stated that the
Access Defendants "will not be held monetarily
responsible for weather delays or weather shutdowns. Crew
shut down due to weather delays [are] at [Plaintiffs]
expense." (ITB, Doc. 83, Ex. 32 at 2.08(8)(a)).
Pennsylvania law is clear that Plaintiff cannot maintain a
fraud in the inducement claim under these circumstances. See,
e.g., Hart, 884 A.2d at 341 (holding that the parol
evidence rule barred Plaintiffs fraud in the inducement claim
when the written contract contained an integration clause).
Simply put, Plaintiff "cannot justifiably rely upon
prior oral representations yet sign a contract denying the
existence of those representations." Blumenstock v.
Gibson, 811 A.2d 1029, 1036 (Pa. Super. Ct. 2002).
puts forth two arguments for why its fraud claim should
survive even if the four contracts are fully integrated: (1)
the contracts were subsequently modified; and (2) the
"admission exception" to the parol evidence rule
applies. (Doc. 95 at 11). As to Plaintiffs first argument,
Plaintiff argues that, after the contracts were awarded, Mr.
Edmonds made promises that the Access Defendants would pay
for losses due to weather conditions and stand downs. (Doc.
95 at 11-12). While such evidence of a subsequent
modification of the four contracts presents a basis for a
claim of post-contract modification, see Section
III.B, infra, this fact would not support a claim of
fraud in the inducement. With respect to the timeline of
events, Mr. Edmonds's actions that Plaintiff asserts
subsequently modified the contract, by their very timing,
occurred after the bids were accepted by the Access
Defendants and after the four contracts were in place.
Consequently, these subsequent modifications could not have
induced Plaintiff to enter into the contracts because Mr.
Edmonds subsequent modifications occurred later in time then
Plaintiffs submission of the bids.
these promises could not constitute any other fraud because
"the breach of a promise to do something in the future
is not actionable in fraud." Shoemaker v.
Commonwealth Bank, 700 A.2d 1003, 1006 (Pa. Super. Ct.
1997); see also Krause v. Great Lakes Holdings,
Inc., 563 A.2d 1182, 1187-88 (Pa. Super. Ct. 1989)
(holding that Defendant's "oral representation ...
that [it] would assume the obligation for [a] debt to
[Plaintiffs] in return for a three year moratorium on
payments and [Plaintiffs'] forbearance from immediate
legal action" is not actionable fraud).
second argument relies on the "admissions
exception" to the parol evidence rule. In Pennsylvania,
"there is an exception to the parol evidence rule when
the party seeking to enforce the agreement as written has
made admissions that the agreement does not, in fact,
constitute the entire agreement between the parties even when
it contains an integration clause." Giant Food
Stores, Inc. v. Marketplace Commc'n Corp., 717
F.Supp. 1071, 1074 (M.D. Pa. 1989) (citing Coal Operators
Cas. Co. v. Charles T. Easterby & Co., 269 A.2d 671
(1970)). Thus, the parol evidence rule does not bar "the
introduction of clear, precise and convincing evidence to
show that the party who seeks to enforce the written
agreement according to its tenor has admitted and
acknowledged that the agreement as written did not express
what the parties intended and that what the parties intended
was omitted from the written agreement by mistake or
accident." In re Boyd's Estate, 146 A.2d
816, 820 (Pa. 1958). "[T]he burden is on the proponent
of the parol evidence to establish such an Admission of
incompleteness in the writing by evidence which is
'clear, precise, and convincing'". Scott v.
Byrn Mawr Arms, Inc., 312 A.2d 592, 595 (Pa. 1973)
(quoting Dunn v. Orloff, 218 A.2d 314 (1966)).
argues that Mr. Edmonds's deposition testimony
constitutes an admission that renders parol evidence of a
pre-contract oral agreement admissible. Plaintiff points to
the fact that Mr. Edmonds testified that he negotiated with
Plaintiff to remove its weather related contingencies in
exchange for Mr. Edmonds's promise that the Access
Defendants would share the risks of the weather. (Deposition
of Keith Edmonds, Doc. 96, Ex, 9 at 66). Plaintiff argues
that this is an admission that the four contracts did not
contain the entire agreement of the parties and therefore
parol evidence should be admissible.
argument fails in the face of the unchallenged existence of
the integration clause in the MSA. That is, the pre-contract
discussion as to the weather contingencies do not vitiate the
meaning of the integration clause or the provision in the ITB
placing costs arising from weather delays on the contractor.
(ITB, Doc. 83, Ex. 32 at 2.08(8)(a)).
because Plaintiffs fraud claim is barred by the parol
evidence rule, the Court will grant the Access
Defendants' Motion for Summary Judgment as it pertains to
Count XI of Plaintiffs Complaint.
Breach of Contract - Weather Claim
first alleges that it is entitled to damages it suffered
because of weather related delays experienced during pipeline
construction. (Doc. 83 at ¶ 122; Doc. 96 at¶ 122).
This claim is based on an alleged pre-contract oral agreement
Plaintiff entered into with the Access Defendants whereby
Plaintiff agreed to remove all its winter contingencies from
its bids on the four projects and the Access Defendants
agreed to assume all the risk of any cost incurred to
Plaintiff because of weather. (Doc. 96 at ¶ 123). In
their Motion, the Access Defendants argue that
Plaintiff's claim is barred by the express terms of the
contracts. (Doc. 82 at 14-17). Specifically, they point to a
provision in the ITB which states that the Access Defendants
"will not be held monetarily responsible for weather
delays or weather shutdowns. Crew shut down due to weather
delays [are] at [Plaintiff's] expense." (ITB,
argues that the contract language was modified by its
agreement with Mr. Edmonds, who was acting on behalf of the
Access Defendants. (Doc. 95 at 16-17). As discussed above,
however, because the four contracts are fully integrated and
cover the topic of weather delays or shutdowns, the parol
evidence rule bars any evidence of prior oral agreements
contradicting the terms of the written contracts. Thus,
Plaintiffs claim cannot survive based on the alleged oral
agreements that occurred before Plaintiffs bids were accepted
by the Access Defendants.
Plaintiff also argues that the four contracts were orally
modified after Plaintiffs bids were accepted by the Access
Defendants. "It is axiomatic that the parol evidence
rule, which prohibits the admission of oral evidence to vary
or contradict a written contract simply does not apply to or
prohibit a subsequent modification of a written contract
'by writings or by words or by conduct or by any
combination of these.'" House of Pasta, inc. v.
Mayo, 449 A.2d 697, 704 (Pa. Super. Ct. 1982) (quoting
Levicoffv. Richard I. Rubin and Co., 196 A.2d 359,
362 (1964)); Wagner, 136 A.2d at 83-84.
Specifically, Plaintiff claims that "on multiple
occasions, including in October of 2012, November of 2012,
January of 2013, and July of 2013, the Access Defendants
orally agreed to compensate [Plaintiff] for any delays and/or
losses because of weather conditions and stand downs."
(Doc. 95 at 16). In their reply brief, the Access Defendants
argue that Plaintiff failed to provide both clear and
convincing evidence of the modification and evidence of any
consideration Plaintiff provided for the modification. (Doc.
115 at 22). Viewing the evidence in a light most favorable to
Plaintiff, there is a dispute of material fact as to whether
the four contracts were modified after Plaintiffs project
bids were accepted by the Access Defendants and the four
contracts were formed.
discussed above, the last of the four contracts was formed
when the Access Defendants accepted Plaintiff's bid on
the Zaplok West Project on November 21, 2012. In his
deposition testimony, Mr. Edmonds testified that, in July of
2013, he went to a meeting with Plaintiff and the Access
Defendants where he "confirm[ed] that we had agreed to
remove the contingencies and that Access would take on some
of that risk." (Deposition of Keith Edmonds, Doc. 96,
Ex. 9 at 83-84). Mr. Edmonds testified that, after the bids
were accepted, it was his understanding that Plaintiff and
the Access Defendants would look at weather related issues
"on a case by case basis" and that if an issue
arose, Plaintiff "would submit a request for change
through our normal procedures and then it would be reviewed
from there as to the reasoning and the quantity of the
change." (Id. at 79-80).
Gill also testified that he "heard Keith Edmonds say
that, yes, STI removed all weather contingencies out of all
winter work for Access and that they would compensate STI for
those weather days if the weather did in fact hit."
(Deposition of Jerrold Gill, Doc. 96, Ex. 10 at 208). When
asked when this occurred, Mr. Gill stated that it was in July
of 2013. (Id.). Further, Mr. Gill's testimony
also contains the following exchange:
Q... So when was this agreement that you would be compensated
for loss -- you know for ...