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New Prime, Inc. v. Brandon Balchune Construction, Inc.

United States District Court, M.D. Pennsylvania

December 15, 2017

NEW PRIME, INC., Plaintiff,


          Robert D. Mariani United States District Judge

         I. Introduction

         This case concerns the construction of a defective concrete parking lot, for which plaintiff has brought claims against seven defendants, all of whom were contractors or subcontractors for the construction project. Plaintiff has alleged eleven counts for breaches of contract, breaches of implied warranties, and negligence relating to the construction. Presently before the Court are five motions for summary judgment brought by defendants against plaintiff. For sake of clarity, the Court will address each of the five motions in a separate opinion, though the underlying facts of the case remain substantively the same.

         This opinion concerns Defendant Midlantic Engineering, Inc. ("Midlantic")'s motion for summary judgment for (1) dismissal of plaintiffs breach of contract and negligence claims against Midlantic, (2) dismissal of other defendants' crossclaims against Midlantic, and (3) judgment in Midland's favor on its crossclaim against Defendant Brandon Balchune Construction, Inc. ("Balchune"). Doc. 210.

         II. Statement of Undisputed Facts

         Midlantic has submitted a Statement of Material Facts as to which it argues there is no genuine issue or dispute for trial. Doc. 211. Plaintiff submitted an opposition to the motion and an answer to the Statement of Facts. Docs. 283, 284. In addition, three other defendants who oppose Midlantic's motion have filed their own responses to the Statement of Facts. Docs. 260, 275, 279. The result of the complicated web of motion papers is that many of the key facts are disputed in this motion. The Court discerns the following facts as not reasonably in dispute unless otherwise noted.

         Plaintiff, New Prime, is a corporation that hired various entities to construct a new parking lot (the "Drop Lot"). Doc. 211 ¶ 1. In August 2012, New Prime hired Balchune, a construction company, as the general contractor for the Drop Lot. Id. ¶¶ 1-2. The total contract price of the project was $1, 631, 278.00. Id. ¶ 3. Construction of the Drop Lot began in September, 2012 and was completed in March, 2013. Id. ¶ 4. Midlantic is a company that provides "construction inspection and materials testing services" for construction projects. Doc. 211-6, at 1. In July 2012, Balchune called Timothy Burns, President of Midlantic, requesting a proposal for Midlantic's services for the Drop Lot project. Doc. 211 ¶ 6. Midlantic first submitted a standard proposal that included "80-some days of testing services expecting to be present relatively full-time for the concrete pours with an allowance of $38, 250." Id. ¶ 8. Balchune then called Burns again, advising him that the project did not require full-time testing for the project but only "spot check testing, " i.e. for Midlantic to stop by the construction site once a day to sample a truck for concrete test. Id. ¶¶ 12-13. Balchune also told Midlantic that the maximum budget for Midlantic's services was $7, 500 for the project. Id. ¶ 13. As a result, Midlantic submitted a revised proposal on September 21, 2012. Id. ¶ 15. Midlantic then proceeded to perform testing services under the revised proposal. Id.¶ 24. It was ultimately paid $6, 674 for its services. Id. ¶ 156. Midlantic did not have any interaction with any contractor besides Balchune for its work on the Drop Lot. /cf.¶31.

         Both Midlantic's original proposal and revised proposal contained a section called "quality control testing and inspection program, " the terms of which are substantively the same. Compare Doc. 211-5, at 1-2 with Doc. 211-6, at 1-2. The revised proposal states in relevant part:

We propose to furnish the following testing and inspection services for this project:
Geotechnical Inspection and Testing Services
a) Soil laboratory testing to determine soil classifications and moisture-density relationships for various soil types used in the fill or proposed for use in the fill;
b) Observation of soil and aggregate fill placement and field density testing by engineering technician personnel to evaluate if earthwork compaction obtained is in accordance with project specifications;
c) Written reports of our observations, testing activities, and recommendations.
Structural Inspection and Testing Services
a) On-site testing and observation of concrete including slump, temperature, percent entrained air, and molding of concrete test cylinders. Reinforcing steel will be inspected and documented with the field testing of the concrete.
b)Transportation, laboratory curing, and compression testing of concrete and grout cylinders, as required.
c) On-site testing and observations of asphalt placement and field density testing by engineering technician personnel to evaluate if asphalt compaction obtained is in accordance with project specifications.

Doc. 211-6, at 1-2. Between the initial proposal and the revised proposal, the only differences in the portion cited above is that the initial proposal contained a provision regarding the "[observation of footing subgrades" that was not in the revised proposal, and the revised proposal's subsection (c) under Structural Inspection and Testing Services (the term beginning with "c) On-site testing and observations of asphalt placement...") was not in the initial proposal. Compare Doc. 211-5, at 1-2 with Doc. 211-6, at 1-2. These differences are not dispositive to the instant motion. The revised proposal also changes the recommended "allowance" for Midlantic's services from $38, 250 to $7, 500, in accordance with Balchune's second call to Midlantic. Compare Doc. 211-5, at 3 with Doc. 211-6, at 3. Finally, both proposals specifically exclude the following services: "surveying for line and grade, monitoring of existing structures, quantity or cost estimates, review of design and contract documents, shop drawings, or professional services not detailed herein." Doc. 211-6, at 2.

         No party disputes the authenticity of the revised proposal, though Balchune points out that the revised proposal was never signed by Balchune. See e.g. Doc. 279, at 2. Balchune does not explicitly dispute Midlantic's statements of facts regarding the initial or the revised proposal, he instead avers that the proposals, which are attached to Midlantic's statements of facts, "speak for themselves and no response is necessary." Doc. 279, at 2. He further asserts that "the proposals attached to Midlantic's Concise Statement of Material Facts were not signed by a representative of Balchune" and that the "record is devoid of any evidence that Balchune agreed to indemnify Midlantic." Id. (emphasis in original). While it is true that the revised proposal is not signed by Balchune, he has not raised authenticity concerns regarding the revised proposal, nor has he disputed that he and Midlantic proceeded to perform in accordance with the revised proposal after it was submitted to him.

         The bulk of the parties' disputed facts arise from their interpretations of the revised proposal. Midlantic avers that its obligations under the proposal only included "spot check compression strength cylinder testing and some sub base testing of the subgrade." Doc. 211 ¶ 21. New Prime counters that "[i]n addition to these duties and responsibilities ... Midlantic was obligated to provided slump testing of the concrete after it was delivered by Pocono Transcrete." Doc. 277 ¶ 21. In support of this contention, New Prime cites the deposition of its expert Farshad Rajabipour, who testified that based on his review of the revised proposal, Midlantic was "to test the subgrade, test the subbase, and also test the concrete as it's being delivered, " and that Midlantic should have been "involved with the evaluation and testing of the concrete prior to placement and finishing." Doc. 277-9, at 47.

         In addition, New Prime's expert opined that there were several contributing factors to the defective Drop Lot, including Midlantic's failure "to advise Balchune against the use of PennDOT Class A concrete, " Midlantic's failure to warn Balchune that the concrete was subpar "due to its excessive slump and low 7-day compressive strength, " and Midlantic's failure to warn Balchune that "testing only one concrete truck per day was too infrequent and in violation of industry standards." Doc. 211 ¶ 82. Midlantic's expert, Joseph Durkin, on the other hand, opined that "analysis and review of the design of the project and the contract parameters simply were not in Midlantic's scope of work." Doc. 211 ¶ 120. Midlantic's statement of facts also include several conclusions of law, stating that it had "no duty to examine the type of the design of contract plans...[or] review the concrete mix and make recommendations regarding a new design for the concrete on the project." Doc. 211 ¶¶ 152-53, 155. All of these conclusions are disputed by New Prime as they are conclusions of law. Doc. 277 ¶¶ 152-53, 155.

         III. Procedural History

         On December 22, 2014, New Prime filed its original complaint naming Balchune and Pocono as defendants. Doc. 1. On August 10, 2015, Prime filed an Amended Complaint adding Patrick McLaine, Civil Design Partners, Jerry Ranieli, Samuel J. Marranca, and Samuel J. Marranca General Contracting Company as defendants. Doc. 36.[1] On July 13, 2016, New Prime filed the Second Amended Complaint (which is the operative complaint for this motion), adding Midlantic as a defendant. Doc. 156.

         The Second Amended Complaint contains eleven counts as follows: Count I (Breach of Contract as against Balchune); Count II (Breach of Warranty as against Balchune); Count III (Breach of Warranty as against Pocono); Count IV (Breach of Contract as against Patrick McLaine and Civil Design Partners); Count V (Breach of Warranty as against Patrick McLaine and Civil Design Partners); Count VI (Breach of Contract as against Jerry Ranieli); Count VII (Negligence as against Jerry Ranieli); Count VIII (Breach of Contract as against the Marranca Defendants; Count IX (Negligence as against the Marranca Defendants); Count X (Breach of Contract as against Midlantic); and Count XI (Negligence as against Midlantic). Id. After the parties engaged in discovery, all defendants except Ranieli have filed motions for summary judgment. In total, there are five pending motions for summary judgment before the Court-brought by Pocono (Doc. 215), Patrick McLaine and Civil Design Partners (the "McLaine Defendants") (Doc. 219), Balchune (Doc. 217), the Marranca Defendants (Doc. 202), and Midlantic (Doc. 210).

         To make matters more complicated, all defendants (with the exception of Jerry Ranieli) have filed crossclaims against other defendants in this case. See Docs. 161 (Pocono's Answer and Crossclaims), 200 (Midlantic's Answer and Crossclaim), 201 (Marranca Defendants' Answer and Crossclaims), 212 (Balchune's Answer and Crossclaims), 224 (McLaine Defendants' Answer and Crossclaims). However, since the filing of their answer, the McLaine Defendants have dropped their crossclaims. See e.g. Doc. 265 at 1 (stating that "[a]fter analysis, CDP and McLaine do not believe they have valid crossclaims against any defendant, and hereby withdraw them").

         None of the crossclaims allege specifically allege any acts or omissions that could support of a finding of breach of contractual duties, breach of other legal obligations, or breach of any duties sounding in tort. See e.g. Doc. 200, at 16-17 (Midlantic's crossclaim alleging only that if Plaintiff sustained damages, then all other defendants "are primarily liable" and "are liable to Midlantic [] by way of contribution and/or indemnity."); Doc. 201, ΒΆΒΆ 130, 132 (Marranca Defendants' crossclaim alleging that "to the extent that there are defects or deficiencies in the concrete at the Drop Lot, such were caused by the acts and omission of one or all of the other Defendants..." and that they are "entitled to contribution" from other defendants); Doc. 212, at 11-12 (Balchune's crossclaim alleging that to the extent New Prime suffered damages, "said damages were not caused by any act or omission of Balchune and, instead, were caused by [other defendants], " who are liable to Balchune "for contribution and/or indemnity"); Doc. 161, at 16-17 (Pocono's crossclaim alleging that "to the extent there are defects or deficiencies in the ...

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