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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. 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), McLaine and Civil Design (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 (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
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, ...