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 Defendants Patrick McLaine and Civil Design
Partners Inc. (the "McLaine Defendants")'s
motion for summary judgment as to plaintiffs breach of
contract and breach of warranty claims against them. Doc.
Statement of Undisputed Facts
McLaine Defendants have submitted a Statement of Material
Facts as to which they argue there is no genuine issue or
dispute for trial. Doc. 221. Plaintiff submitted an
opposition to the motion and an answer to the Statement of
Facts. Docs. 283, 284. The following facts are not reasonably
in dispute except as noted.
New Prime, is a corporation that hired various entities to
construct a new parking lot (the "Drop Lot"). Doc.
221 ¶¶ 1, 10-15. New Prime hired the McLaine
Defendants to create several documents in the process of
obtaining governmental permits for the Drop Lot. Id.
¶ 18. In particular, the McLaine Defendants were hired
to "generate and submit a land development plan for the
purpose of complying with the ordinances and permit
requirements" of local authorities. Id. ¶
15. The Land Development Plan was to contain "sufficient
information to obtain those governmental permits and
approvals." Id. ¶ 16. It is undisputed
that the Plan did not contain any "references to
concrete" except the specification that the construction
was to use "Class A concrete for the curbing [of the
Drop Lot construction], and eight inch thick concrete slabs
upon a ten inch sub-base, and a compacted sub-grade."
Id. ¶ 17.
August 2012, New Prime hired Brandon Balchune Construction,
Inc. ("Balchune"), a construction company, as the
general contractor for the Drop Lot. Doc. 221 ¶ 11; Doc.
221-6. Balchune in turn hired Defendant Jerry Ranieli to
serve as the site superintendent. Id. ¶ 14.
Defendant Pocono Transcrete, Inc. ("Pocono")
supplied the concrete for the construction, while Defendant
Midlantic Engineering, Inc. ("Midlantic") provided
quality control and inspection services for the construction.
Id. ¶¶ 12-13.
McLaine Defendants did not enter into a formal contract with
New Prime, but rather, agreed to proceed based upon an email
exchange, which the parties treated as the contract between
them. Id. ¶¶ 15, 18; Doc. 221-1. However,
neither the McLaine Defendants nor New Prime attached the
entire email thread to their motion papers, but
rather, only included the first page of the email. Docs.
221-1, 284-3. At the bottom of the first page, the remaining
text of an April 26, 2012 email sent from Patrick McLaine to
Johnnie Madison (a New Prime employee) is cut off.
Id. The latter part of the April 26, 2017 email, or
any emails preceding it, is not included in the record.
accordance with the email that served as a contract between
them, the McLaine Defendants prepared the following
documents: the Land Development Plan, "an erosion and
sediment plan for the Luzerne Conservation District, a
general NPDES permit for the Luzerne Conservation District
and DEP, and a PP&L encroachment application." Doc.
221 ¶ 18. The McLaine Defendants submitted their plans
to Ron Slone, New Prime's architect, and Johnnie Madison,
the New Prime employee in charge of overseeing the project.
Id. ¶ 20. Neither communicated any deficiencies
in the plans to the McLaine Defendants. Id. Citing
deposition testimony of Richard Yarborough, the McLaine
Defendants contend that Johnnie Madison and a firm called
Killian Construction were responsible for developing the
general bid specifications for the Drop Lot project, and that
the specifications were not provided to the McLaine
Defendants. Id. ¶ 21. The McLaine Defendants
further aver that Mr. Madison and Killian Construction later
changed the "sub-base" specification without the
knowledge of the McLaine Defendants. Id. ¶ 22.
New Prime, however, disputes these statements, stating that
the deposition testimony of Richard Yarborough was
mischaracterized. Rather, Yarborough only testified that he
"is not sure who developed the blueprints [or bid
specifications]." Doc. 284 ¶ 21. New Prime also
disputes that the "sub-base" specifications were
changed without the knowledge of the McLaine Defendants, but
cites nothing in the record or provides any explanation in
support of this denial. Id. ¶ 22. Furthermore,
both parties have failed to inform the Court who Mr.
Yarborough is and what role he played in the construction of
the Drop Lot. But the Court was able to glean from its own
review of the record that he is a "terminal
manager" for New Prime who would be familiar with the
Drop Lot project, and that he testified that he has no
knowledge of who prepared the bid specifications. Doc. 284-2,
at 9:18-11; Doc. 221-4, at 2.
McLaine Defendants also contend that they "were never
asked to generate, and never agreed to provide, construction
specifications." Doc. 221 ¶ 24. This, again, is
disputed by New Prime, who avers that "Civil Design
failed to specify the required quality of concrete...and
required methods of quality control" in the Land
Development Plan. Doc. 284, ¶ 24. This denial, however,
does not resolve the fundamental question: which is whether
the McLaine Defendants were asked to generate or
provide such specifications. As discussed above, the
actual contract between New Prime and McLaine Defendants
consists of a single email thread, of which the Court only
has the first page. Docs. 221-1, 284-3. The bottom email of
the first page is from Patrick McLaine, listing a partial
list of draft terms for a "proposal for the permitting
and approvals of the trailer parking area." Id.
There is no indication whether this "proposal"
refers to the Land Development Plan or another document.
Furthermore, the response from New Prime to McLaine's
email merely states "Patrick[, ] go ahead on the
project." Id. McLaine then responded to New
Prime, in relevant part: "We started. Similar to the
topographic survey and the NPDES Major Modification,
hopefully we can come in under budget." Id.
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 the
McLaine Defendants, 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 ...