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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 Brandon Balchune Construction, Inc. ("Balchune")'s motion for summary judgment as to plaintiffs breach of contract and breach of warranty claims against it. Doc. 217.

         II. Statement of Undisputed Facts

         Balchune has submitted a Statement of Material Facts as to which it argues there is no genuine issue or dispute for trial. Doc. 218. Plaintiff has submitted an opposition and a "Counterstatement of Material Facts." Docs. 280, 282. The following facts are not reasonably in dispute. Plaintiff, New Prime, is an interstate trucking company that hired Balchune for the construction of a parking lot ("Drop Lot"). Doc. 218 ¶ 1. The Drop Lot was to provide a space for New Prime's drivers to park and store tractor trailers. Id. ¶ 8. On August 24, 2012, Balchune entered in to an agreement with New Prime for the Drop Lot project for $1, 631, 278.00. Id. ¶¶ 2-3; Doc. 218-1, at 2-3. The contract provided that Balchune would "place concrete as per specifications], " but it did not detail what the specifications were. Id. ¶¶4, 6. Defendant Pocono Transcrete, Inc. ("Pocono") supplied the concrete used for the Drop Lot. Id. ¶ 7.

         The construction of the Drop Lot was completed by Balchune around February, 2013. Id. ¶ 10. In March, 2014, an inspection by New Prime revealed that the concrete surface of the Drop Lot was cracking and peeling. Id. ¶ 11. Thus, New Prime brought suit against Balchune and other contractors for the project, alleging that the Drop Lot's surface is defective. Doc. 156. One of New Prime's experts, Jeffrey Willoughby, estimates the damages to be between $6.9 to 7.7 million. Doc. 218-1, at 132-140. Balchune asserts that New Prime's employee Richard Yarborough testified that "he is not aware of any diminution in value of the [Drop Lot] property." Doc. 218 ¶ 16. Joseph Fumanti and Floyd Rubino, both New Prime employees, also testified that the Drop Lot has been in continuous use for parking trailers since construction was completed. Doc. 218-1 at 125-126. Balchune thus claims that despite allegations of defects, the Drop Lot "is still in use twenty four hours a day, seven days a week and has been used continuously since construction was complete." Doc. 218 ¶ 12. New Prime, however, disputes its own employees' account and asserts that it "has been forced to close various sections of the Drop Lot." Doc. 282 ¶ 12. Furthermore, the Court has reviewed the cited portions of the witnesses' testimony, and none of the cited testimony refers to the value of the Drop Lot property, nor is it clear from the record why New Prime employees would be in the position to opine on the market value of the Drop Lot. In any event, New Prime disputes the characterization of the witness testimony and refers the Court to its expert reports, which analyze the relative faults of Balchune and other contractors involved in the Drop Lot project, as well as the estimated damages to New Prime. Doc. 282 ¶ 16.

         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.[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 Marranca; Count IX (Negligence as against Marranca); 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 (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, ¶¶ 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 concrete at the Drop Lot, such defects or deficiencies were caused by the actions of one or all of the other Defendants, " and that "Pocono is entitled to contribution from [all other Defendants] for any damages assessed against Pocono").

         The present opinion concerns Balchune's motion for summary judgment, arguing that New Prime's claims against it must be dismissed because of New Prime's failure to establish "diminution in the value of the property." Doc. 231, at A.[2] For reasons stated below, the Court will deny Balchune's motion for summary judgment.

         III. ...

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