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 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.
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.
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.
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.
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 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).
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
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").
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. For reasons stated below, the Court
will deny Balchune's motion for summary judgment.