United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
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.
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.
Statement of Undisputed Facts
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.
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.
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,
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
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.
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.
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.
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 concrete...review
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,
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. 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.
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.
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").
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, ¶¶ 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 ...