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STI Oilfield Services, Inc. v. Access Midstream Partners

United States District Court, M.D. Pennsylvania

March 6, 2017

STI OILFIELD SERVICES, INC., Plaintiff,
v.
ACCESS MIDSTREAM PARTNERS, et al., Defendants.

          MEMORANDUM OPINION

          Robert D. Mariani, Judge

         I. Introduction and Procedural History

         Presently 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.

         II. Statement of Undisputed Facts

         In 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).[1] 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:

         Plaintiff, 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).

         Beginning 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).

         The 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 § 2.08).

         Plaintiff 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 Plaintiffs bids.

         During 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).

         III. Standard of Review

         Through 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).

         The 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 (1993).

         However, "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).

         IV. Analysis

         The 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).

         "It 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)).

         The 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 alterations."
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 written.

Wagner v. Graziano Constr. Co., 136 A.2d 82, 83-84 (Pa. 1957).

         "A 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).

         A. Fraud Count

         In 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).

         The 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 parol evidence.

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).

         With 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 436.

         Here, 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).

         Further, 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.

         First, 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 Midstream Services.[2]

         Then, 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.[3]

         Plaintiff 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)).

         Here, 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).

         Plaintiffs 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.

         In 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, [4] the contracts are fully integrated. The Court therefore turns to the question of how this affects Plaintiff's fraud count.

         Plaintiff 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).

         Plaintiff 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.

         Further, 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).

         Plaintiff's 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)).

         Plaintiff 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.

         This 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)).

         In sum, 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.

         B. Breach of Contract - Weather Claim

         Plaintiff 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, Doc.83, Ex.32at2.08(8)(a)).

         Plaintiff 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.

         However, 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.

         As 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).

         Jerrold 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 ...

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