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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 addresses Defendant Pocono Transcrete Inc. ("Pocono")'s motion for summary judgment as to (1) plaintiff's breach of implied warranty claim against Pocono, and (2) other defendants' crossclaims for contribution or indemnity against Pocono. Doc. 215.

         II. Statement of Undisputed Facts

         Pocono has submitted a Statement of Material Facts as to which it argues there is no genuine issue or dispute for trial. Doc. 216. Plaintiff submitted an opposition to the motion and an answer to Pocono's Statement of Facts. Docs. 285, 286. Co-defendants McLaine and Civil Design have also filed an opposition to the motion, as well as an answer to Pocono's Statement of Facts. Docs. 264, 265. The following facts have been admitted except as noted.

         Plaintiff, New Prime, is a corporation that hired various entities to construct a new parking lot over 200, 000 square feet in size (the "Drop Lot"). Doc. 216 ¶ 2. A "drop lot" is a type of parking lot where tractor-trailer drivers can disconnect and park (or "drop") their trailers and drive the tractor unit away. Id. ¶ 4. In May 2012, New Prime hired Defendants Patrick McLaine and Civil Design Partners, Inc. (together the "McLaine Defendants") to prepare plans and other documents related to the Drop Lot construction. Id. ¶ 1. The McLaine Defendants denied that they were asked to "produce construction specifications for the drop lot, " instead, they state that they were only hired to "obtain governmental permits and approvals in connection with which [Civil Design] produced a land Development Plan.'" Doc. 264 ¶ 1. It is undisputed however, that the McLaine Defendants were hired by New Prime to produce certain development plans for the Drop Lot project.

         In August 2012, New Prime entered into a contract with Brandon Balchune Construction, Inc. ("Balchune"), a construction company, as the primary construction contractor for the Drop Lot. Doc. 216 ¶ 2. Balchune, in turn, hired several subcontractors for the project, including Defendant Jerry Ranieli to serve as the site superintendent and Defendant Midlantic Engineering, Inc. ("Midlantic") to perform geotechnical inspection and quality control services during the construction. Id. ¶¶ 5, 6. Balchune also hired Defendants Samuel Marranca and Samuel J. Marranca General Contracting Co. (together the "Marranca Defendants") to serve as the Site Manager for the project. Id. ¶ 5.[1]

         Balchune hired Pocono to manufacture and supply the concrete for the project. Id. ¶¶ 7, 37. Pocono and Balchune did not enter into a formal contract. Id. ¶¶ 37-39. Instead, Pocono submitted a one page price quote to Balchune to provide concrete for a price of $72 per yard, which Balchune accepted. Id. ¶¶ 37-38; Doc. 216-6. Pocono contends (and no opposing party disputes) that this price quote "serves as the contract between Balchune and Pocono." Id. ¶ 39. The quote states that Pocono was to supply Balchune with "Class A PennDOT equivalent" concrete. Doc. 216-6. It does not contain an indemnification provision. Doc. 216 ¶ 40; Doc. 216-6. Neither New Prime nor the other Defendants in this case have a contract with Pocono. Id. ¶ 41.

         Construction of the Drop Lot began in September 2012, and the project was completed around February 2013. Id. ¶ 8. After construction was completed, an inspection revealed that 60% of the concrete surface of the Drop Lot began to crack and peel. Id. ¶ 9. New Prime then brought suit against various contractors or subcontractors for the Drop Lot project, alleging that all defendants contributed to the Drop Lot's defects. Doc. 1.

         New Prime has mustered two experts in support of its suit: Farshad Rajabipour, a civil engineer and expert in forensics of concrete, and Otto Guedelhoefer, a structural engineer. Id. ¶ 10. New Prime's experts have posited several theories in which defendants could have contributed to the premature failure of the concrete surface. Id. ¶¶ 15-36. For example, Rajabipour testified that the concrete supplied by Pocono had an excessive water-to-cement ratio. Id. ¶ 15. He also opined that Balchune engaged in improper installation, finishing, and curing practices during construction, and that Balchune failed to recognize problems with the concrete in time to fix them. Id. ¶¶ 12, 15. Similarly, Guedelhoefer opined that Balchune had installed a significant portion of the concrete slab for the Drop Lot with insufficient thickness. Id. ¶ 16. He explained that concrete industry standards require a "subbase" layer beneath the concrete consisting of at least four inches of Type 2A aggregate (a type of gravel), and that about 10% of the subbase in the Drop Lot did not meet this standard. Id. ¶¶ 17-18.

         The two experts further pointed out there were other problems with Balchune's construction, including the failure to include a joint installed in the concrete, the failure to make cuts in certain areas in the concrete, the improper usage of trowels to finish the concrete, and the failure to allow water to evaporate properly before finishing the concrete. Id. ¶¶ 19-21, 26. Rajabipour also took issue with the infrequency of Midlantic's quality control testing of the concrete. Id. ¶¶ 28-30. Finally, Rajabipour found that Civil Design did not specify the required quality of concrete in its plans for the Drop Lot. Id. ¶ 32; Doc. 216-1, at 21.

         With respect to the concrete supplied by Pocono, both experts took issue with the type of concrete used for the Drop Lot, opining that a better quality type of concrete would have resulted in better performance. Id. ¶ 33; Doc. 216-1, at 13. In addition, Rajabipour found that notwithstanding the fact that PennDOT Class A concrete is an inappropriate choice for the project, the concrete that was in fact delivered by Pocono "did not even meet the requirements of the PennDOT Class A concrete, due to its high [water to cement ratio], low cement content, addition of extra water (up to 25 gal) at the job site by Pocono drivers, and the low 7-day compressive strength of the concrete." Doc. 216-1, at 13. In short, New Prime's experts have identified several potential factors caused by the various defendants that contributed to its injury, at least some of which are attributable to Pocono. With respect to overall damages, Guedelhoefer estimated the cost of remediation to be around 4.5 to 5.3 million dollars. Doc. 216-2, at 15-17.

         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, New 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.[2] 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), McLaine and Civil Design (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 (the Marranca Defendants' Answer and Crossclaims), 212 (Balchune's Answer and Crossclaims), 224 (McLaine Defendants' Answer and Crossclaims). The McLaine Defendants have since 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, ...

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